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Estate of Byrd v. Teater

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 29, 2008

ESTATE OF RICHARD BYRD, PLAINTIFF,
v.
ATWATER RESERVE OFFICER MICHAEL TEATER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT GORDON SPENCER'S MOTION FOR SUMMARY JUDGMENT (Doc. 108) AND SETTING PLAINTIFF'S REQUESTS FOR DISMISSAL OF REMAINING DEFENDANTS AND RELIEF FROM ORDERS TO PROVIDE DISCOVERY AND PAY MONETARY SANCTION FOR HEARING ON MONDAY, SEPTEMBER 15, 2008 AT 10:00 A.M.

On June 4, 2008, Defendant Gordon Spencer filed a motion for summary judgment, noticing the motion for hearing on July 28, 2008. By minute order filed on June 5, 2008, the hearing on the motion for summary judgment was continued to August 4, 2008. Pursuant to Rule 78-230(c), Local Rules of Practice, Plaintiff's opposition to the motion or statement of non-opposition to the motion was due to be filed by July 21, 2008. Plaintiff, represented by Kevin Little, did not file a timely opposition or statement of non-opposition. An Order to Show Cause was issued on July 24, 2008, directing Mr. Little to appear on August 4, 2008 and show cause why this action should not be dismissed pursuant to Rule 41(b), Federal Rules of Civil Procedure, for failure to prosecute this action. On July 29, 2008, Mr. Little filed under seal a confidential declaration in response to the Order to Show Cause. At the hearing on August 4, 2008, Mr. Little represented that he could file an opposition to Defendant Spencer's motion for summary judgment. Mr. Little was orally ordered to file the opposition by August 18, 2008 and advised that the action will be dismissed against Defendant Spencer if Mr. Little did not timely comply.

On August 17, 2008, Mr. Little filed a Statement of Non-Opposition:

Plaintiff the Estate of Richard Byrd, through its undersigned counsel, hereby submits this statement of non-opposition in response to the motion for summary judgment or summary adjudication filed by defendant Gordon Spencer in this action. The motion, plaintiff submits, presents issues identical to those already ruled on by the Court in the context of the motion for summary judgment or summary adjudication filed previously by defendant Mark Pazin. Plaintiff incorporates his prior opposition, as well as the Court's ruling on Defendant Pazin's motion, herein by reference, pursuant to Federal Rule of Civil Procedure 10(c), and further advises the Court that it has submitted already every document and argument in opposition to that motion that it could in response and opposition to the pending motion. Plaintiff understands that the Court, given its obligation to decide similar issues consistently, will likely make a similar ruling despite plaintiff's prior opposition arguments. Accordingly, the plaintiff tenders this statement of non-opposition, in accordance with Local Rule 78-230(c), which provides that '[a] responding party who has no opposition to the granting of the motion shall serve and file a statement to that effect, specifically designating the motion in question.' Plaintiff having consented to Defendant Spencer's motion for summary judgment, it is hereby GRANTED.*fn1

IT IS SO ORDERED.


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