Coleman v. Virga et al
Filing
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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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