Goldsmith v. Cate et al

Filing 20

ORDER signed by Magistrate Judge Kendall J. Newman on 3/28/14 ORDERING that the April 10, 2014 hearing on defendants motion to dismiss is vacated; and Within thirty days from the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES K. GOLDSMITH,

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Plaintiff,

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v.

No. 2:13-cv-0943 KJN P

ORDER

MATTHEW CATE, et al.,
Defendants.

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Plaintiff is a former state prisoner. On February 24, 2014, defendants filed a motion to

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dismiss pursuant to Federal Rule of Civil Procedure 12, and noticed it for hearing on April 10,

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2014. Plaintiff has not opposed the motion.

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Local Rule 230(l) provides in part: “Failure of the responding party to file written

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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

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the granting of the motion . . . .” On December 16, 2013, plaintiff was advised of the

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requirements for filing an opposition to a motion and that failure to oppose such a motion may be

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deemed a waiver of opposition to the motion.

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Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for

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imposition of any and all sanctions authorized by statute or Rule or within the inherent power of

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the Court.” In the order filed December 16, 2013, plaintiff was also advised that failure to

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comply with the Local Rules may result in a recommendation that the action be dismissed.
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Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides:

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Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move
to dismiss the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule
19--operates as an adjudication on the merits.

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Id.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The April 10, 2014 hearing on defendants’ motion to dismiss is vacated; and

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2. Within thirty days from the date of this order, plaintiff shall file an opposition, if any,

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to the motion to dismiss. Failure to file an opposition will be deemed as consent to have the:

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(a) action dismissed for lack of prosecution; and (b) action dismissed based on plaintiff’s failure

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to comply with these rules and a court order. Such a failure shall result in a recommendation that

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this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: March 28, 2014

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/gold0943.nop

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