Whitsitt v. Zedlitz et al

Filing 124

ORDER TO SHOW CAUSE AND CONTINUING HEARING ON 119 MOTION for Summary Judgment. Show Cause Response due by 4/12/2013. Motion Hearing set for 5/17/2013 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge JEFFREY S. WHITE on 3/29/13. (jjoS, COURT STAFF) (Filed on 3/29/2013)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

WILLIAM J. WHITSITT,

11
For the Northern District of California

United States District Court

10

12
13

Plaintiff,

No. C 08-01803 JSW

v.

ORDER TO SHOW CAUSE AND
CONTNIUING HEARING ON
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

JEAN ZEDLITZ, et al.
Defendants.
/

14
15

On March 7, 2013, Defendant R. Lance & Sons Cos., Inc. filed a motion for summary

16

judgment, which is noticed for a hearing on April 19, 2013. Under Northern District Local Rule

17

7-3(a), Plaintiff’s opposition to the motion was due by no later than March 25, 2013. As of the

18

date of this Order, Plaintiff has not filed an opposition brief.

19

Accordingly, Plaintiff is HEREBY ORDERED TO SHOW CAUSE, in writing, by no

20

later than April 12, 2013, why this Court should not grant Defendant’s motion as unopposed. If

21

Plaintiff seeks to file a belated opposition brief, he must submit a request showing good cause

22

for his failure to comply with the Local Rules and that request must be accompanied by a

23

proposed opposition brief. If Plaintiff files such a request, and if the Court grants that request, it

24

will permit Defendant to file a reply brief. The Court CONTINUES the hearing on the motion

25

for summary judgment from April 19, 2013 to May 17, 2013 at 9:00 a.m.

26

If Plaintiff fails to file a response to this Order to Show Cause by April 12, 2013, the

27

Court shall deem Defendant’s motions submitted, and it shall rule on the papers. The Court

28

again provides notice to Plaintiff, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en

1

banc), that he should be aware that failure to oppose a proper motion for summary judgment

2

may result in the dismissal of this case with prejudice. A motion for summary judgment under

3

Rule 56 of the Federal Rules of Civil Procedure will, if granted, end Plaintiff’s case. See Rand ,

4

154 F.3d at 953-54. A principal purpose of the summary judgment procedure is to identify and

5

dispose of factually supported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24

6

(1986). In order to withstand a motion for summary judgment, the opposing party must set

7

forth specific facts showing that there is a genuine issue of material fact in dispute. Fed. R. Civ.

8

P. 56(e). A dispute about a material fact is genuine “if the evidence is such that a reasonable

9

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In the absence of such facts, “the moving party is entitled to a judgment as a

11
For the Northern District of California

United States District Court

10

matter of law.” Celotex Corp., 477 at 323. In opposing summary judgment, Plaintiff is not

12

entitled to rely on the allegations of his complaint. See Fed. R. Civ. P. 56(e); cf. S. A. Empresa

13

de Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235, 1238

14

(9th Cir. 1982) (stating that “a party cannot manufacture a genuine issue of material fact merely

15

by making assertions in its legal memoranda”). Rather, Plaintiff’s response must set forth

16

specific facts supported by admissible evidence, i.e., affidavits or certified deposition testimony,

17

answers to interrogatories, or properly authenticated documents, that contradict the defendant’s

18

declarations and show that there is a genuine issue for trial. See id.; see also Keenan v. Allan,

19

91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251

20

(7th Cir. 1995), and stating that it is not a district court’s task to “scour the record in search of a

21

genuine issue of triable fact”). If Plaintiff does not submit his own evidence in opposition,

22

summary judgment, if appropriate, may be entered against him. If summary judgment is

23

granted, Plaintiff’s case will be dismissed and there will be no trial. See Rand, 154 F.3d at 953-

24

54.

25
26

IT IS SO ORDERED.
Dated: March 29, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

27
28
2

1
2

UNITED STATES DISTRICT COURT

3

FOR THE

4

NORTHERN DISTRICT OF CALIFORNIA

5
6
WILLIAM J. WHITSITT et al,

Case Number: CV08-01803 JSW

7
Plaintiff,

CERTIFICATE OF SERVICE

8
v.
9
JEAN ZEDLITZ et al,
10

For the Northern District of California

United States District Court

Defendant.
11

/

12

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
13 District Court, Northern District of California.
14 That on March 29, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
15 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
16
17

William J. Whitsitt
18 26 W. Emerson Ave.
Tracy, CA 95376
19
Dated: March 29, 2013
20
21
22
23
24
25
26
27
28

Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk