Drake v. Niello Company et al

Filing 138

ORDER AND ORDER to SHOW CAUSE signed by Magistrate Judge Edmund F. Brennan on 11/28/18 ORDERING that the hearing on defendant Niello Performance's 120 Motion to declare plaintiff a vexatious litigant and for an order imposi ng prefiling restrictions is continued to 1/30/2019 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan AND Plaintiff shall show cause, in writing, no later than 1/9/2019 why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motion. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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E. DRAKE,

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No. 2:17-cv-1036-JAM-EFB PS
Plaintiff,

v.

ORDER AND ORDER TO SHOW CAUSE

THE NIELLO COMPANY, NIELLO
IMPORTS OF ROCKLIN, INC., NIELLO
PERFORMANCE MOTORS INC.,
NIELLO MOTOR CAR COMPANY AND
SHIPPING EXPERTS INC.,
Defendants.

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Defendant Niello Performance Motors, Inc. (“Niello Performance”) has moved to declare

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plaintiff a vexatious litigant and for an order imposing prefiling restrictions. ECF No. 120. The

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motion is currently set for hearing on December 5, 2018. ECF No. 136.

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Court records reflect that plaintiff has not filed an opposition or statement of non-

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

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or a statement of non-opposition thereto, must be served upon the moving party, and filed with

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this court, no later than fourteen days preceding the noticed hearing date or, in this instance, by

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November 21, 2018. Local Rule 230(c) further provides that “[n]o party will be entitled to be

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heard in opposition to a motion at oral arguments if opposition to the motion has not been timely

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filed by that party.” Local Rule 183, governing persons appearing in pro se, provides that failure
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to comply with the Federal Rules of Civil Procedure and Local Rules may be grounds for

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

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

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

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1. The hearing on defendant Niello Performance’s motion to declare plaintiff a vexatious

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litigant and for an order imposing prefiling restrictions (ECF No. 120) is continued to January 30,

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2019 at 10:00 a.m. in Courtroom No. 8.
2. Plaintiff shall show cause, in writing, no later than January 9, 2019, 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. Plaintiff shall file an opposition to defendant Niello Performance’s motion, or a
statement of non-opposition thereto, no later than January 9, 2019.
4. Failure to file an opposition to the motion will be deemed a statement of nonopposition thereto, and may result in a recommendation that the motion be granted.
5. Defendant Niello Performance may file a reply to plaintiff’s opposition, if any, on or

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before January 16, 2019.

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DATED: November 28, 2018.

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