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Gray v. Hartley

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


December 12, 2008

RANDALL C. GRAY, PETITIONER,
v.
J.D. HARTLEY, RESPONDENT.

The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO RESPONDENT'S MOTION TO DISMISS (DOCUMENT #16) THIRTY DAY DEADLINE

Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C. § 2254. On November 12, 2008 Respondent filed a motion to dismiss. (Doc. 15). Pursuant to the Court's order setting the briefing schedule in this action, Petitioner's opposition to the motion to dismiss is due no later than 21 days after service by mail. (Doc. 4, p. 3). The proof of service filed with the motion to dismiss states that a copy of the motion was mailed to Petitioner on November 12, 2008, which means that Petitioner's opposition to the motion was due no later than December 3, 2008. (Doc. 15-3). On December 5, 2008, Petitioner filed a request for a 60-day enlargement of time commencing December 12, 2008. Petitioner's request did not state why an enlargement of time was necessary; it indicated that Respondent had been given an extension of time. (Doc. 16). The Court construes Petitioner's request (Doc. 16) as a motion for extension of time to file an opposition to Respondent's motion to dismiss.

Petitioner's motion fails to fails to show good cause for the extension of time and was filed after his opposition to the motion to dismiss was due. However, the Court notes that the proof of service filed with Petitioner's motion indicates that the motion was mailed to the Court and a copy was mailed to Respondent on December 2, 2008, and thus the Court finds the motion is timely. The fact that one party was granted an extension does not establish good cause for another party's extension; nevertheless the Court will grant Petitioner a thirty (30) day extension of time to file his opposition to Respondent's motion to dismiss. Accordingly, the Court makes the following orders:

1. Petitioner's motion for an extension of time to file an opposition to Respondent's motion to dismiss is GRANTED IN PART AND DENIED IN PART, as follows:

A. Petitioner shall have to and including the date which is thirty (30) days from the date of service of this Order to file and serve an opposition to Respondent's motion to dismiss;

B. Petitioner's motion for an extension of time exceeding thirty (30) days, is DENIED; and

2. No further extensions of time will be granted in the absence of a showing of good cause.

IT IS SO ORDERED.

20081212

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