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Cosco v. Gemmit

January 19, 2010

JOHN COSCO, PLAINTIFF,
v.
VICTORIA GEMMIT, DEFENDANT.



The opinion of the court was delivered by: Lonny R. Suko Chief United States District Judge

ORDER DENYING MOTION TO COMPEL, INTER ALIA

BEFORE THE COURT are the Plaintiff's "Motion To Compel Discovery Or Disclosure" (Ct. Rec. 34) and "Motion For A Rule 56(f) Continuance" (Ct. Rec. 33). These motions are considered as submitted pursuant to E.D. Cal. Local Rule 230(l) because more than 28 days have passed since service of Plaintiff's motions.*fn1 Plaintiff did not file a reply.

For the reasons set forth in Defendant's opposition, as supported by the declaration of counsel (Ct. Rec. 37), Plaintiff's Motion To Compel (Ct. Rec. 34) is DENIED. Defendant has properly objected to some of the information sought as being irrelevant to Plaintiff's claim, and has otherwise completely responded to Plaintiff's discovery requests to the best of her ability and to the extent required by law.

The court will not grant a continuance based on Fed. R. Civ. P. 56(f). Plaintiff's Motion For A Rule 56(f) Continuance (Ct. Rec. 33) is DENIED. The discovery deadline has passed and pending a ruling on Defendant's summary judgment motion (Ct. Rec. 29), no further discovery will be allowed. Plaintiff has yet to file a response to the summary judgment motion. Presumably, this is because he assumed the filing of his motions to compel and continue stayed his obligation to respond. While that is not automatically the case, in recognition of Plaintiff's pro se status and in the interests of justice, the court will allow Plaintiff until February 19, 2010 to file a response to Defendant's summary judgment motion (roughly corresponding to 21 days after service of the court's order upon Plaintiff, plus time for service). Local Rule 230(l). Plaintiff must comply with the requirements regarding summary judgment motions. See attached Notice.

Defendant may serve and file any reply with the time allowed by the rule and the court will then consider the motion submitted, without oral argument, pursuant to the rule.

IT IS SO ORDERED. The District Court Executive is directed to enter this order and forward a copy to the Plaintiff and to counsel for Defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN COSCO, Plaintiff(s)/Petitioner(s) v. VICTORIA GEMMIT, Defendant(s)/Respondent(s)

NOTICE TO PRO SE LITIGANTS OF THE DISMISSAL AND/OR SUMMARY JUDGMENT RULE REQUIREMENTS

TO:

A Defendant/Respondent in your case has filed a motion to dismiss under Federal Rule of Civil Procedure 12 or a motion for summary judgment under Federal Rule of Civil Procedure 56. If the motion is granted, some or all of your claims will be dismissed, and there will be no trial or evidentiary hearing on those claims. This notice is given because the Ninth Circuit Court of Appeals requires that pro se litigants be given fair notice of the requirements of the summary judgment rule.

Rule 12 Motions Treated as Rule 56 Motions.

In a Rule 12 motion, the Defendant/Respondent generally relies on only what is stated in the complaint (and those items of which the Court can take judicial notice) to assert entitlement to dismissal of the complaint. However, if either party submits other evidence with a motion to dismiss or with a response to the motion, then the Court may treat the motion to dismiss as a motion for summary judgment.

See Federal Rule of Civil Procedure 12(b). This Notice is to inform you that if the Defendant or Respondent has submitted evidence in support of a motion to dismiss, the Court will give you notice of its intent to treat the motion as a motion for summary judgment and of the need for you to meet the ...


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