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Poston v. Tamietti

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


September 9, 2010

STEVE POSTON, PLAINTIFF,
v.
ROBERT TAMIETTI; JASON JONES; CALIFORNIA DEPARTMENT OF HIGHWAY PATROL; ERIC WAGNER; KEITH ROYAL; DONALD E. LOWN, JR.; TAMARA ZUROMSKIS; CLIFFORD NEWELL; DEFENDANTS.

ORDER AND ORDER TO SHOW CAUSE

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Currently noticed for hearing on September 15, 2010 are defendants County of Nevada, Clifford Newell, Jason Jones, Tamara Zuromskis, Donald Lown, Jr., and Keith Royal's (the "County defendants") motion to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1) and 12(b)(6), Dckt. Nos. 4 and 12, and defendant Robert Tamietti's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), Dckt. Nos. 6 and 14.

Court records reflect that although plaintiff earlier filed an opposition to the County defendants' motion, Dckt. No. 7, he has not filed an opposition to defendant Tamietti's motion to dismiss.*fn1 Local Rule 230(c) provides that opposition to the granting of a motion, or a statement of non-opposition thereto, must be served upon the moving party, and filed with this court, no later than fourteen days preceding the noticed hearing date or, in this instance, by September 1, 2010. Local Rule 230(c) further provides that "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party."

Local Rule 183, governing persons appearing in pro se, provides that failure to comply with the Federal Rules of Civil Procedure and Local Rules may be ground for dismissal, judgment by default, or other appropriate sanction. Local Rule 110 provides that failure to comply with the Local Rules "may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." See also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) ("Failure to follow a district court's local rules is a proper ground for dismissal."). Pro se litigants are bound by the rules of procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

Accordingly, good cause appearing, IT IS HEREBY ORDERED that: 1. The hearing on defendants' motions to dismiss, Dckt. Nos. 12 and 14, is continued to October 27, 2010;

2. Plaintiff shall show cause, in writing, no later than October 13, 2010, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to defendant Tamietti's motion.

3. Plaintiff shall file an opposition to defendant Tamietti's motion, or a statement of non-opposition thereto, no later than October 13, 2010.

4. Failure of plaintiff to file an opposition will be deemed a statement of non-opposition to the motion, and may result in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).

5. Defendants may file replies to plaintiff's opposition(s), on or before October 20, 2010. SO ORDERED.


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