IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 11, 2011
KARL VANDERVALL, PLAINTIFF,
J. FELTNER, ET AL., DEFENDANTS.
On April 7, 2011, defendants Feltner and Machado filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff had not opposed the motion. Therefore, the court issued an order to show cause requiring plaintiff to file an opposition, if any, to defendants' motion within thirty days. In response to the court's order, plaintiff has filed a letter stating that he cannot respond to defendants' motion for summary judgment in legal terms but knows he does not agree with it. Plaintiff also states in his letter that "I know just to give that answer is not enough, so I'm going to have to stop this case."
To the extent that plaintiff no longer wishes to proceed with this case, he should file a motion to voluntarily dismiss this action. See Fed. R. Civ. P. 41. To the extent that plaintiff needs additional time to oppose defendants' motion, in the interest of justice, the court will grant him thirty additional days in which to do so and advise him once more of the requirements for opposing a motion for summary judgment. A motion for summary judgment is a request for an order for judgment in favor of defendants without trial. A defendant's motion for summary judgment will set forth the facts that the defendants contend are not reasonably subject to dispute and that entitle the defendants to judgment. To oppose a motion for summary judgment, plaintiff must show proof of his or her claims. Plaintiff may do this in one or more of the following ways. 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 plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one or more affidavits or declarations setting forth the facts that plaintiff believes prove plaintiff's claims; the person who signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may rely upon written records, but plaintiff must attempt to establish, by declaration or otherwise, that the records are what plaintiff claims they are. Plaintiff may rely upon all or any part of the transcript of one or more depositions, answers to interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the defendants' evidence with counteraffidavits or other admissible evidence, the defendants' evidence may be taken as the truth and the defendants' motion for summary judgment may be granted. If plaintiff does not serve and file a written opposition to the motion, the court may consider the failure to act as a waiver of opposition to the defendants' motion. If the defendants' motion for summary judgment, whether opposed or unopposed, is granted, judgment will be entered for the defendants without a trial and the case will be closed.
Under the circumstances of this case, the court will grant plaintiff an additional thirty days to either file a motion to voluntarily dismiss this action or file an opposition to defendants' motion for summary judgment.
Accordingly, IT IS HEREBY ORDERED that:
1. The court's May 26, 2011 order to show cause is discharged;
2. Within thirty days of the date of service of this order, plaintiff shall either:
(a) file a motion to voluntarily dismiss this action, or
(b) file an opposition to defendants' motion for summary judgment.
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