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Jacob Winding v. Allstate Insurance Company and Does 1 Through 25

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


September 20, 2011

JACOB WINDING, PLAINTIFF,
v.
ALLSTATE INSURANCE COMPANY AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS,
ALLSTATE INSURANCE COMPANY, COUNTER-CLAIMANT,
v.
JACOB WINDING, COUNTER-DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

By this order, the undersigned advises the parties that the "amended" documents filed by plaintiff and counter-defendant in regards to the pending motions for summary judgment and summary adjudication (Dkt. Nos. 84-88) are disregarded and will not be considered by the court. Any further attempt by plaintiff to circumvent the court's September 6, 2011 order, or any other court order, court rule, or other procedural rule, will result in recommendations that plaintiff's affirmative claims be dismissed with prejudice and that judgment by default be entered in defendant Allstate Insurance Company's ("Allstate") favor on Allstate's counterclaim.*fn1

On August 1, 2011, Allstate filed a motion for summary judgment, or partial summary judgment in the alternative, with respect to plaintiff's claims against it (Dkt. No. 60). On the same day, Allstate filed a motion for summary judgment addressed to its counterclaim against plaintiff (Dkt. No. 59). Allstate noticed both motions for a hearing to take place before the undersigned on September 15, 2011. Plaintiff failed to file oppositions to either of Allstate's motions. (See Order, Sept. 6, 2011, Dkt. No. 76.) In light of plaintiff's failure and status as a pro se party, the undersigned continued the hearing on Allstate's motions to October 27, 2011, and ordered plaintiff to oppose Allstate's motions consistent with Local Rules 230 and 260 on or before September 15, 2011. (Id. at 3.) The undersigned specifically advised plaintiff that his failure to follow the Federal Rules of Civil Procedure and the court's orders and Local Rules would result in recommendations that his claims be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a), and that Allstate be granted judgment on its counterclaim. (See id. at 2-4.)

On September 15, 2011, plaintiff filed a memorandum of points and authorities in opposition to Allstate's motions, two affidavits, a separate statement of disputed facts, and evidentiary objections. (Dkt. Nos. 78-82.) None of these documents explains why plaintiff failed to oppose Allstate's motions in the first instance. Nonetheless, plaintiff filed these documents within the time provided by the court in the September 6, 2011 order.

However, on September 19, 2011, plaintiff filed two "amended" memoranda of points and authorities, an "amended" separate statement of disputed facts, and an "amended" affidavit. (Dkt. Nos. 84-87.) On September 20, 2011, plaintiff filed yet another "amended" separate statement of disputed facts. (Dkt. No. 88.) All of these documents are materially different from the documents filed by plaintiff on September 15, 2011, and plaintiff has not explained why he believes he is entitled to file these documents. Regardless, plaintiff's acts of filing "amended" documents on September 19th and 20th are in clear contravention of the court's September 6, 2011 order, and readily appear to constitute plaintiff's attempt to circumvent the briefing schedule provided by the court. Accordingly, plaintiff's "amended" documents (Dkt. Nos. 84-88) are disregarded and will not be considered by the court. Any subsequent filings through which plaintiff violates the court's order will also be summarily disregarded.

The undersigned notes that due to plaintiff's failure to timely oppose defendant's motions it would have been appropriate to recommend that plaintiff's affirmative claims be dismissed with prejudice and that a judgment by default be entered as to Allstate's counterclaim.*fn2

However, the undersigned will consider plaintiff's September 15, 2011 filings in resolving the pending motions. That said, if plaintiff subsequently violates the court's orders, the court's Local Rules, or the Federal Rules of Civil Procedure, the undersigned will vacate the October 27, 2011 hearing and enter findings and recommendations that recommend the dismissal of plaintiff's claims and the entry of a judgment by default as to Allstate's counterclaim.

In light of the foregoing, IT IS HEREBY ORDERED that plaintiff's "amended" documents filed on September 19, 2011 (Dkt. Nos. 84-87), and September 20, 2011 (Dkt. No. 88), are disregarded and will not be considered by the court.

IT IS SO ORDERED.


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