Melgar v. Schmidt

Filing 37

ORDER signed by Magistrate Judge Kendall J. Newman on 3/24/17 ordering that within 30 days from the date of this order, plaintiff shall file an opposition, if any, to the motion for summary judgment. Failure to file an opposition will be deemed as c onsent to have the: (a) action dismissed for lack of prosecution; and (b) action dismissed based on plaintiffs failure to comply with these rules and a court order. Such failure shall result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS MELGAR,

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Plaintiff,

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No. 2: 15-cv-2256 JAM KJN P

v.

ORDER

L. SCHMIDT, et al.,

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Defendants.

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On January 13, 2017, defendant filed a motion for summary judgment pursuant to Federal

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Rule of Civil Procedure 56. (ECF No. 31.) On February 15, 2017, the undersigned granted

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plaintiff a thirty days extension of time to file an opposition. (ECF No. 34.) Plaintiff did not file

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an opposition.
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 . . . .” Id. On March 4, 2016 (ECF No. 14) and January 13, 2017 (ECF

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No. 31 at 180), plaintiff was advised of the requirements for filing an opposition to a motion and

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that failure to oppose such a motion may be deemed a waiver of opposition to the motion. See

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Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849

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F.2d 409, 411-12 (9th Cir. 1988).

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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.” Id. In the order filed March 4, 2016, plaintiff was also advised that failure to comply

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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.
Good cause appearing, IT IS HEREBY ORDERED that, within thirty days from the date

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of this order, plaintiff shall file an opposition, if any, to the motion for summary judgment.

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Failure to file an opposition will be deemed as consent to have the: (a) action dismissed for lack

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of prosecution; and (b) action dismissed based on plaintiff’s failure to comply with these rules

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and a court order. Such failure shall result in a recommendation that this action be dismissed

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pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: March 24, 2017

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Mel2256.nop

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