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). On July 30, 2010, defendant California Horse Racing Board removed the action to this court from Sacramento County Superior Court on the ground that plaintiff's complaint alleges federal claims. Dckt. No. 2. Then, on August 5, 2010, the California Horse Racing Board moved to dismiss plaintiff's complaint. Dckt. No. 7. The motion was noticed to be heard on October 27, 2010. Id.
On October 18, 2010, because plaintiff had not filed either an opposition or a statement of non-opposition to the motion, the undersigned continued the hearing on the motion to November 24, 2010; ordered plaintiff to show cause, in writing, no later than November 10, 2010, why sanctions should not be imposed for his failure to timely file an opposition or a statement of non-opposition to the pending motion; and directed plaintiff to file an opposition to the motion, or a statement of non-opposition thereto, no later than November 10, 2010. Dckt. No. 10. The undersigned further stated that "[f]ailure of plaintiff to file an opposition will be deemed a statement of non-opposition to the pending motion, and may result in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b)." Id.
Plaintiff now requests a forty-five day continuance in this action. See Dckt. No. 12. Plaintiff contends that he "makes this request in order to have time to seek Counsel to represent him," and states that he "believes that the 45-day continuance will allow the necessary time to obtain Counsel and allow Counsel time to review the case and prepare an argument." Id.
The California Horse Racing Board opposes the request for a continuance. Dckt. No. 11. The California Horse Racing Board contends that plaintiff "has failed to specify any good cause for his inability to retain counsel, or even specify that he has been diligently seeking representation." Id. The California Horse Racing Board further argues that "plaintiff's action is precluded by the fact that the same issues between the same parties has already been adjudicated in state court, and plaintiff has failed to state any cause of action against defendant." Id.
Although plaintiff has not shown why he has been unable to retain counsel and does not state that he has been diligently seeking representation, plaintiff does indicate that he "was previously assisted by an attorney in this matter with the preparation of court documents [but that] Said attorney is no longer available to assist plaintiff." Dckt. No. 12. Additionally, plaintiff only seeks a continuance of forty-five days and states that he believes he will be able to obtain counsel within that time. Therefore, plaintiff's request for a continuance will be granted. If plaintiff is able to obtain counsel, he shall notify the court as soon as possible.
Accordingly, it is hereby ORDERED that:
1. Plaintiff's request for a continuance is granted.
2. The November 24, 2010 hearing on the California Horse Racing Board's motion to dismiss, Dckt. No. 7, is continued to January 12, 2011 at 10:00 a.m. in Courtroom No. 24.
3. Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto, no later than December 29, 2010.
4. Failure of plaintiff to file an opposition will be deemed a statement of non-opposition to the pending motion, and may result in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).
5. The California Horse Racing Board may file a reply to plaintiff's opposition, if any, on or before January 5, 2011.
© 1992-2010 VersusLaw ...