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Gaytan v. City of Brawley

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 15, 2009

LUIS GAYTAN, PLAINTIFF,
v.
CITY OF BRAWLEY, OFFICER TORRES, DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER SETTING BRIEFING SCHEDULE AND VACATING PRETRIAL CONFERENCE

In this action for alleged violation of rights under the federal and California constitutions and under California tort law, Defendants filed a motion for summary judgment. Plaintiff failed to timely oppose. In the interests of justice, the time for Plaintiff to file his opposition is extended.

On February 4, 2009 a day after his opposition was due, Plaintiff filed an ex parte application seeking an extension of time of at least a week due to computer problems. On February 9, the court granted the application and extended the time by one week. Nevertheless, Plaintiff did not timely file his opposition. On February 10, Plaintiff sent an e-mail to the court's official e-file mail box indicating he needed more time. Defendants used the same method to respond. Both parties were admonished for the inappropriate use of the court's e-file mail box. (See order dated Feb. 13, 2009.) On February 10, 2009 Plaintiff also left a voice mail for the court staff complaining that the extension of time was not long enough. Although staff returned his call, Plaintiff was not available and did not call the court until next day, February 11. He was instructed that if he desired to obtain another extension of time, he must file an ex parte application and show good cause. Plaintiff did not do so. Instead, the following day he filed his opposition papers. They were rejected and stricken from the record as untimely, lacking proper signature and including illegible exhibits. (See docket entries no. 30 & 33.)

When a party wants to extend a due date which has already passed, the request must be made by a motion. Fed. R. Civ. Proc. 6(b)(1)(B). Since Plaintiff has realized that the initial extension of time was insufficient until this date, Plaintiff has not filed a motion to extend time for his opposition. Plaintiff is not entitled to an extension and the court could consider Plaintiff's opposition waived. See Civ. L. Rule 7.1(f)(3)(c). Nevertheless, because at issue is summary judgment, the court grants Plaintiff one last opportunity to file his opposition.

Accordingly, IT IS HEREBY ORDERED as follows:

1. No later than June 22, 2009 Plaintiff shall file his papers in opposition to Defendants' motion for summary judgment. No further extensions of time will be granted.

2. No later than June 29, 2009 Defendants shall file their reply papers.

3. Upon the filing of the foregoing, the parties shall await further order of this court.

4. The pretrial conference currently set for July 6, 2009 is hereby VACATED. The parties shall obtain a new date for the final pretrial conference after they have received a decision on Defendants' summary judgment motion.

IT IS SO ORDERED.

20090615

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