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Fernando Shah v. Employment Development Department

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


August 26, 2011

FERNANDO SHAH, PLAINTIFF,
v.
EMPLOYMENT DEVELOPMENT DEPARTMENT, DEFENDANT.

ORDER

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). Defendant moves to dismiss plaintiff's complaint and noticed the motion to be heard on August 10, 2011. Dckt. No. 9.

On August 1, 2011, 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 September 7, 2011; ordered plaintiff to show cause, in writing, no later than August 24, 2011, 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 August 24, 2011. 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 and/or for failure to comply with court orders and this court's Local Rules. See Fed. R. Civ. P. 41(b)." Id.

On August 8, 2011, plaintiff filed a response to the order to show cause, requesting that sanctions not be imposed and requesting that the hearing on the motion to dismiss "continue[] as originally scheduled (September 7, 2011)." Dckt. No. 11. In light of plaintiff's filing, the undersigned will decline to impose sanctions at this time.

However, plaintiff still has not filed a substantive opposition or statement of non-opposition to the pending motion. 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. 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." See also E.D. Cal. L.R. 183 (governing persons appearing in pro se and providing 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); L.R. 110 (providing 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."). Therefore, the hearing on the motion will be continued, and plaintiff will once again be directed to file an opposition or a statement of non-opposition to the pending motion. If plaintiff elects to file an opposition, the opposition shall respond to the arguments made in the motion to dismiss.

Accordingly, it is hereby ORDERED that:

1. The August 1, 2011 order to show cause is discharged.

2. The September 7, 2011 hearing on defendant's motion to dismiss, Dckt. No. 9, is continued to October 19, 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 October 5, 2011.

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. Defendant may file a reply to plaintiff's opposition, if any, on or before October 12, 2011.

SO ORDERED.

20110826

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