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Alvaro Hernandez v. K. Bouwman
July 10, 2012
ALVARO HERNANDEZ, PLAINTIFF,
K. BOUWMAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Pursuant to the Ninth Circuit's recent decision in Woods v. Carey, No.
09-15548 (9th Cir. July 6, 2012), the court hereby reminds plaintiff
of the following requirements for opposing the motion for summary
judgment filed by defendant McDaniels on July 2, 2012.*fn1
The motion arises under Rule 56 of the Federal Rules of Civil
Procedure. Such a motion is a request for an order for judgment in
favor of the defendant without trial. A defendant's motion for summary
judgment will set forth the facts that the defendant contends are not
reasonably subject to dispute and that entitle the defendant 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 on plaintiff's statements made
under penalty of perjury in the complaint if the complaint shows that plaintiff has personal
knowledge of the matters stated and plaintiff specifies those parts of
the complaint on 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 on written records, but plaintiff must
prove that the records are what plaintiff asserts they are. Plaintiff
may rely on 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 defendant's
evidence with counteraffidavits or other admissible evidence, the
court may accept defendant's evidence as true and grant the motion. If
there is some good reason why such facts are not available to
plaintiff when required to oppose a motion for summary judgment, the
court will consider a request to postpone consideration of the
defendant's motion. See Fed. R. Civ. P. 56(d). If plaintiff does not
serve and file a written opposition to the motion, or a request to
postpone consideration of the motion, the court may consider the
failure to act as a waiver of opposition to the defendant's motion.
SeeL.R. 230(l). If the court grants the motion for summary judgment,
whether opposed or unopposed, judgment will be entered for the
defendant without a trial and the case will be closed as to that
Unsigned affidavits or declarations will be stricken, and affidavits or declarations not signed under penalty of perjury have no evidentiary value.
Plaintiff now having received the notice required under Woods v. Carey, No. 09-15548 (9th Cir. July 6, 2012), IT IS HEREBY ORDERED that
1. Plaintiff's opposition to defendant McDaniels's June 29, 2012 motion for summary judgment is due by August 8, 2012. Failure to file an opposition by August 8, 2012 will result in a recommendation that this action be dismissed under Federal Rule of Civil Procedure 41(b).
2. Any reply to plaintiff's opposition shall be due no later than 14 days after ...
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