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Tracchia v. Tilton
May 12, 2009
GLENN MATTHEW TRACCHIA, PLAINTIFF,
JAMES TILTON, ET AL., DEFENDANTS.
Defendants have filed a motion for summary judgment, which plaintiff has opposed. In reviewing this case, however, the court has determined that plaintiff was never given notice of the requisites for opposing summary judgment.
Plaintiff is now informed, pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc 1999) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), of the following requirements for opposing a motion for summary judgment made by a defendant pursuant to Rule 56 of the Federal Rules of Civil Procedure. Such a motion is a request for an order for judgment in favor of defendant without trial. A defendant's motion for summary judgment will set forth the facts that the defendant contends are not reasonably subject to dispute and that entitle the defendant to judgment. To oppose a motion for summary judgment, plaintiff must show proof of his or her claims. Plaintiff may do this in one or more of the following ways.
Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one or more affidavits or declarations setting forth the facts that plaintiff believes prove plaintiff's claims; the person who signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may rely upon written records, but plaintiff must prove that the records are what plaintiff claims they are. Plaintiff may rely upon all or any part of the transcript of one or more depositions, answers to interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the defendant's evidence with counteraffidavits or other admissible evidence, the defendant's evidence may be taken as the truth and the defendant's motion for summary judgment granted. If there is some good reason why such facts are not available to plaintiff when required to oppose a motion for summary judgment, the court will consider a request to postpone considering the defendant's motion. If the defendant's motion for summary judgment, whether opposed or unopposed, is granted, judgment will be entered for defendant without a trial and the case will be closed.
Having now been provided with the notice required by Rand v. Rowland, plaintiff will be given thirty days within which to file an amended opposition to the defendants' motion for summary judgment, if he chooses. Defendants will be given twenty days to file a reply to the amended opposition.
In accordance with the above, IT IS HEREBY ORDERED that plaintiff is granted thirty days within which to file an amended opposition to defendants' motion for summary judgment. Defendants may file a reply within twenty days of service of any amended opposition.
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