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Billups v. Lomeli

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 26, 2010

DERRICK LEE BILLUPS, PLAINTIFF,
v.
SERGEANT LOMELI, DEFENDANTS.

ORDER

Defendant has moved for summary judgment as to some or all of Plaintiff's claims. Pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), Plaintiff is advised of the following requirements for opposing a motion for summary judgment made by Defendant pursuant to Rule 56 of the Federal Rules of Civil Procedure. Such a motion is a request for an order for judgment on some or all of Plaintiff's claims in favor of defendants without trial. See Rule 56(b). Defendant's motion will set forth the facts which Defendant contends are not reasonably subject to dispute and that entitle Defendant to judgment as a matter of law. See Rule 56(c).

Plaintiff has the right to oppose a motion for summary judgment. To oppose the motion, Plaintiff must show proof of his or her claims. Plaintiff may agree with the facts set forth in Defendant's motion but argue that Defendant is not entitled to judgment as a matter of law. Plaintiff may show Defendant's facts are disputed in one or more of the following ways: (1) 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 if Plaintiff calls to the court's attention those parts of the complaint upon which Plaintiff relies; (2) Plaintiff may also serve and file affidavits or declarations*fn1 setting forth the facts which plaintiff believes prove Plaintiff's claims (the persons who sign the affidavit or declaration must have personal knowledge of the facts stated); (3) Plaintiff may also rely upon written records but Plaintiff must prove that the records are what Plaintiff claims they are*fn2 ; (4) Plaintiff may also rely upon all or any part of the transcript of one or more depositions, answers to interrogatories, or admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendant's motion with affidavits, declarations, or other evidence, Defendant's evidence will be taken as truth, and final judgment may be entered without a full trial. See Rule 56(e). Plaintiff's waiver of opposition to Defendant's motion may result in the entry of summary judgment against Plaintiff. A motion supported by affidavits or declarations that are unsigned will be stricken. The failure of any party to comply with this order, the Federal Rules of Civil Procedure, or the Local Rules of Court, may result in the imposition of sanctions including, but not limited to, dismissal of the action or entry of default.

Accordingly,

IT IS ORDERED that Plaintiff must file a response to Defendant's Motion for Summary Judgment (Doc. No. 54) in accordance with this Order on or before April 30, 2010. Defendant must file a reply on or before May 21, 2010.

IT IS FURTHER ORDERED that Defendant must file a response to Plaintiff's Motion for Summary Judgment (Doc. No. 51) on or before April 30, 2010 and Plaintiff must file a reply on or before May 21, 2010.


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