Elawyers Elawyers
Washington| Change

Mills v. Bankers Life and Casualty Company, 2:14-cv-2322 MCE CKD PS. (2016)

Court: District Court, E.D. California Number: infdco20160406880 Visitors: 8
Filed: Apr. 05, 2016
Latest Update: Apr. 05, 2016
Summary: ORDER CAROLYN K. DELANEY , Magistrate Judge . This action was referred to the undersigned pursuant to Local Rule 302(c)(21). Calendared for hearing on April 27, 2016 is defendant's motion for summary judgment. Because plaintiff had not timely filed opposition, the matter was continued and plaintiff was directed to file opposition no later than April 6, 2016. Plaintiff has filed a response indicating that he is not a lawyer and that he does not know what effect a summary judgment may have on
More

ORDER

This action was referred to the undersigned pursuant to Local Rule 302(c)(21). Calendared for hearing on April 27, 2016 is defendant's motion for summary judgment. Because plaintiff had not timely filed opposition, the matter was continued and plaintiff was directed to file opposition no later than April 6, 2016. Plaintiff has filed a response indicating that he is not a lawyer and that he does not know what effect a summary judgment may have on his case. ECF No. 37. Plaintiff has filed no substantive opposition.

Although plaintiff is pro se, he is expected to comply with the Federal Rules of Civil Procedure. Motions for summary judgment are described in Federal Rule of Civil Procedure 56. Plaintiff is cautioned that if no substantive opposition is filed, the court will recommend that this action be dismissed with prejudice. Because it appears plaintiff did not understand the need for filing a substantive opposition and addressing the arguments made in defendant's motion for summary judgment, the court will grant a brief continuance of the hearing and afford plaintiff a further extension of time to file opposition.

The court hereby informs plaintiff of the following requirements for opposing a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. See generally Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); see also Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 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. See L.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 defendant.

Good cause appearing, IT IS HEREBY ORDERED that:

1. The hearing date of April 27, 2016 is vacated. Hearing on defendant's motion is continued to May 11, 2016 at 10:00 a.m. in courtroom no. 24.

2. Plaintiff shall file opposition, if any, to the motion no later than April 20, 2016. Failure to file opposition will be deemed as a statement of non-opposition and shall result in submission of the motion on the papers and a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

3. Reply, if any, shall be filed no later than April 27, 2016.

Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer