Johnson v. Solorio et al

Filing 28

ORDER to SHOW CAUSE signed by Magistrate Judge Edmund F. Brennan on 3/17/17 ORDERING that the hearing on plaintiff's 26 motion for summary judgment is CONTINUED to 5/3/2017 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Bre nnan. Defendants shall show cause, in writing, no later than 4/19/2017, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motion. Defendants shall file an opposition to the mo tion, or a statement of non-opposition thereto, no later than 4/19/2017. Failure of defendants to file an opposition to the motion will be deemed a statement of non-opposition thereto, and may result in a recommendation that plaintiff's motion be granted. Plaintiff may file a reply to defendants' opposition, if any, on or before 4/26/2017.(Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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No. 2:14-cv-2683-MCE-EFB PS

Plaintiff,
v.

ORDER TO SHOW CAUSE

RAFAEL T. SOLORIO; MARIA D.
SOLORIO; ALFREDO SOLORIO, and
DOES 1-10,

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Defendants.

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Plaintiff filed a motion for summary judgment, and noticed the motion for hearing on

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March 29, 2017.1 ECF No. 26. Court records reflect that defendants have not filed an opposition

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or statement of non-opposition to the pending motion.

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Local Rule 230(c) provides that opposition to the granting of a motion, or a statement of

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non-opposition thereto, must be served upon the moving party, and filed with this court, no later

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than fourteen days preceding the noticed hearing date or, in this instance, by March 15, 2017.

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Local Rule 230(c) further provides that “[n]o party will be entitled to be heard in opposition to a

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motion at oral arguments if opposition to the motion has not been timely filed by that party.”

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Additionally, Local Rule 260(b) provides that “[a]ny party opposing a motion for summary

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to
Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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judgment or summary adjudication shall reproduce the itemized facts in the Statement of

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Undisputed Facts and admit those facts that are undisputed and deny those that are disputed,

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including with each denial a citation to the particular portions of any pleading, affidavit,

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deposition, interrogatory answer, admission, or other document relied upon in support of that

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denial.” Local Rule 260(b) further provides that “[t]he opposing party may also file a concise

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‘Statement of Disputed Facts,’ and the source thereof in the record, of all additional material facts

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as to which there is a genuine issue precluding summary judgment or adjudication,” and that

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“[t]he opposing party shall be responsible for the filing of all evidentiary documents cited in the

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opposing papers.”

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Finally, Local Rule 183, governing persons appearing in pro se, provides that failure to

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comply with the Federal Rules of Civil Procedure and Local Rules may be grounds for dismissal,

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judgment by default, or other appropriate sanctions. Local Rule 110 provides that failure to

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comply with the Local Rules “may be grounds for imposition by the Court of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court.” Pro se

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litigants are bound by the rules of procedure, even though pleadings are liberally construed in

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their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Because defendants have failed to file an opposition or statement of non-opposition to

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plaintiff’s motion for summary judgment, as required by Local Rule 230, and have failed to

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respond to plaintiff’s statement of undisputed facts, as required by Local Rule 260, the hearing on

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plaintiff’s motion for summary judgment must be continued. Defendants are ordered to show

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cause why sanctions should not be imposed for failure to timely file an opposition or a statement

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of non-opposition to the pending motion and for failure to timely file a response to plaintiff’s

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statement of undisputed facts. Defendants are also ordered to file an opposition to the motion or a

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statement of non-opposition thereto and a response to defendant’s statement of undisputed facts.

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Failure to comply with this order may result in a recommendation that defendant’s motion for

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summary judgment be granted.

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The court informs defendants of the following with respect to opposing a motion for
summary judgment under Federal Rule of Civil Procedure 56: Such a motion is a request that the
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court grant judgment in plaintiff’s favor without trial. A motion for summary judgment will set

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forth the facts that plaintiff asserts are not reasonably subject to dispute and that entitle him to

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judgment under applicable law. To oppose a motion for summary judgment, defendants may file

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one or more affidavits or declarations setting forth the material facts that defendants believe are

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subject to reasonable dispute, as long as the person who signs it has personal knowledge of the

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facts stated. Defendants may rely on written records, but they must prove they are what

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defendants assert them to be. Defendants may rely on all or any part of responses to discovery

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propounded in this case, i.e, answers to interrogatories, admissions and deposition transcripts. If

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defendants fail to contradict plaintiff’s evidence with counter-affidavits or other admissible

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evidence, the court may accept plaintiff’s evidence as true and grant the motion. If there is good

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reason why such facts are not available to defendants when they are required to oppose a motion

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for summary judgment, the court will consider a request to postpone considering the motion. If

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defendants do not file a written opposition to the motion or a request to postpone consideration of

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it, the court may consider the failure to act as a waiver of opposition to the plaintiff’s motion. If

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the court grants plaintiff’s motion, whether opposed or unopposed, judgment will be entered for

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plaintiff without a trial and the case will be closed.

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Accordingly, good cause appearing, it is hereby ORDERED that:

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1. The hearing on plaintiff’s motion for summary judgment (ECF Nos. 26) is continued to

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May 3, 2017.

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2. Defendants shall show cause, in writing, no later than April 19, 2017, why sanctions

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should not be imposed for failure to timely file an opposition or a statement of non-opposition to

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the pending motion.

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3. Defendants shall file an opposition to the motion, or a statement of non-opposition
thereto, no later than April 19, 2017.

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4. Failure of defendants to file an opposition to the motion will be deemed a statement of

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non-opposition thereto, and may result in a recommendation that plaintiff’s motion be granted.

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5. Plaintiff may file a reply to defendants’ opposition, if any, on or before April 26, 2017.
DATED: March 17, 2017.

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