Gaytan v. Solis

Filing 100

ORDER re 89 MOTION for Summary Judgment filed by Hilda Solis. Signed by Judge ARMSTRONG on 4/27/12. (lrc, COURT STAFF) (Filed on 4/27/2012)

1
2
3

UNITED STATES DISTRICT COURT

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

5

OAKLAND DIVISION

6
7

RICHARD GAYTAN,

Case No: C 07-6367 SBA

8

Plaintiff,

ORDER

9

vs.

Docket 89.

10

HILDA L. SOLIS, SECRETARY OF
11 LABOR,
12

Defendant.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

On March 23, 2012, Defendant Hilda L. Solis, Secretary of Labor ("Defendant"),
filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure, which was noticed for hearing on May 1, 2012. Dkt. 89. Under Civil Local
Rule 7-3(a), Plaintiff Richard Gaytan's ("Plaintiff") opposition was due on April 10, 2012.
To date, Plaintiff has not filed an opposition or statement of non-opposition as required by
Civil Local Rule 7-3(b). Nor has Plaintiff sought an extension of time to file an opposition.
As such, the Court orders Plaintiff to file an opposition or statement of non-opposition to
Defendant's motion for summary judgment by no later than fourteen (14) days from the
date this Order is filed.
"A district court may not grant a motion for summary judgment simply because the
nonmoving party does not file opposing material, even if the failure to oppose violates a
local rule." Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994). However, where a local
rule "does not require, but merely permits the court to grant a motion for summary
judgment, the district court has discretion to determine whether noncompliance should be
deemed consent to the motion." Id. This Court’s Standing Orders provides: "The failure of

1

the opposing party to file a memorandum of points and authorities in opposition to any

2

motion shall constitute a consent to the granting of the motion." Civil Standing Order at 5.

3

Accordingly, Plaintiff is warned that the failure to timely file a written opposition to

4

Defendant's motion for summary judgment will be construed by the Court as a consent to

5

the granting of the motion. See Brydges, 18 F.3d at 653 ("because Brydges was warned of

6

the consequence of his failure to respond to the appellees' summary judgment motion, the

7

district court did not err by deeming his failure to respond a consent to the motion for

8

summary judgment"). Plaintiff is further warned that the failure to comply with this Order

9

will result in dismissal of this action under Rule 41(b) of the Federal Rules of Civil

10

Procedure for failure to prosecute and failure to comply with a Court Order.

11

For the reasons stated above, IT IS HEREBY ORDERED THAT:

12

1.

13
14
15
16

Plaintiff shall file an opposition to Defendant's motion for summary judgment

by no later than fourteen (14) days from the date this Order is filed.
2.

Plaintiff's opposition shall comply in all respects with the Federal Rules of

Civil Procedure and the Court's Civil Local Rules.
3.

In the event that Plaintiff files a timely response to the motion for summary

17

judgment, Defendant may file a reply by no later than seven (7) days after the deadline for

18

Plaintiff's response.

19

4.

The motion hearing scheduled for May 1, 2012 is VACATED. Upon the

20

completion of the briefing schedule or the deadline for Plaintiff to file an opposition, the

21

Court will take the matter under submission. Defendant shall notify the Court if Plaintiff

22

fails to file a timely response to the motion for summary judgment.

23
24

IT IS SO ORDERED.
Dated: 4/27/12
________________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

25
26
27
28
-2-

1
2

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

3
4

GAYTAN et al,

5
6
7
8

Plaintiff,
v.
SOLIS et al,
Defendant.
/

9
10

Case Number: CV07-06367 SBA

11

CERTIFICATE OF SERVICE

12
13
14
15
16
17

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 27, 2012, 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 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.

18
19
20
21
22
23

Richard Gaytan
433 Red Lion Way
Newman, CA 95360
Dated: April 27, 2012
Richard W. Wieking, Clerk

24
By: Lisa Clark, Deputy Clerk
25
26
27
28
-3-