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Bowman v. Schwarzenegger

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


September 5, 2008

GARY STEVEN BOWMAN, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.

ORDER

This action was referred to the undersigned pursuant to Local Rule 72-302. When the action was filed, plaintiff was incarcerated and the court directed that any motions be governed by Local Rule 78-230(m), which provides that all motions shall be submitted on the record without oral argument. Docket No. 22 ¶ 9. That same order provided that these procedures should govern even if the plaintiff was released from prison during the pendency of the litigation, but that a party could request that other provisions of Local Rule 78-230 apply.

Without securing an order permitting this case to be set for argument, defendants have calendared a motion to dismiss for hearing on September 10, 2008 at 10:00 a.m. No opposition to the motion has been filed.

Under Local Rule 78-230(m), opposition to a motion shall be served not more than eighteen days plus three days for service after the service of the motion. The motion to dismiss was filed in this case on August 1, 2008.

Local Rule 78-230(m) also provides in part: "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ." On May 29, 2008, plaintiff was advised of the requirements for filing an opposition to the motion and that failure to oppose such a motion may be deemed a waiver of opposition to the motion.

Local Rule 11-110 provides that failure to comply with the Local Rules may be grounds for imposition of any and all sanctions authorized by statute. On May 29, 2008, plaintiff was advised that failure to comply with the Local Rules may result in a recommendation that the action be dismissed.

Good cause appearing, IT IS HEREBY ORDERED that:

1. The hearing date of September 10, 2008 is vacated. No further hearing date shall be set without an order of the court directing that the provisions of Local Rule 78-230(m) no longer govern motions practice in this case.

2. Plaintiff shall file opposition, if any, to the motion within twenty days of the date of this order. Failure to file opposition will be deemed as a statement of non-opposition and shall result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

20080905

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