Coleman v. Virga et al

Filing 46

ORDER signed by Magistrate Judge Kendall J. Newman on 05/14/19 ORDERING that, within thirty days from the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT COLEMAN,

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No. 2: 17-cv-0851 KJM KJN P

Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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On November 13, 2018, defendants filed a motion to dismiss for failure to state a claim,

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pursuant to Federal Rule of Civil Procedure 12, and on the grounds that some of plaintiff’s claims

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are barred by the doctrine of res judicata. (ECF No. 41.) On December 10, 2018, plaintiff filed

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an opposition to defendants’ motion. (ECF No. 43.) Plaintiff’s only argument in his opposition

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is that defendants’ motion is untimely.

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For the reasons stated herein, the undersigned finds that defendants’ motion to dismiss is

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not untimely. Plaintiff is ordered to show cause why his failure to address the merits of

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defendants’ motion should not be deemed a waiver of opposition.

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On October 11, 2018, the undersigned ordered defendants Walcott, Haring, Lynch, Virga,

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Walcott and Wright to file a response to the amended complaint within thirty days of the date of

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the order. (ECF No. 40.) On November 13, 2018, defendants filed the pending motion to

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dismiss. (ECF No. 41.)
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As observed by defendants in the reply to plaintiff’s opposition, thirty days from October

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11, 2018 was November 10, 2018, a Saturday. The following Monday, November 12, 2018, was

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Veterans Day, a federal holiday. Under Federal Rule of Civil Procedure 6(a)(1)(C), defendants’

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time to respond to plaintiff’s amended complaint ran “until the end of the next day that is not a

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Saturday, Sunday or legal holiday.” Fed R. Civ. P. 6(a)(1)(C). Defendants’ motion, filed

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November 13, 2018, is timely filed.
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 14, 2018, 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.” Id. In the order filed March 14, 2018, 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, within thirty days from the date

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of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. Failure to file an

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opposition will be deemed as consent to have the: (a) action dismissed for lack of prosecution;

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and (b) action dismissed based on plaintiff’s failure to comply with these rules and a court order.

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Such failure shall result in a recommendation that this action be dismissed pursuant to Federal

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Rule of Civil Procedure 41(b).

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Dated: May 14, 2019

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Cole851.nop
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