(PC) Church v. Naftzger ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JACK CHURCH, Case No. 1:17-cv-00596-AWI-JLT (PC) 12 Plaintiff, SECOND INFORMATIONAL ORDER - NOTICE AND WARNING OF 13 v. REQUIREMENTS FOR OPPOSING DEFENDANT’S MOTION FOR 14 J. NAFTZGER, SUMMARY JUDGMENT 15 Defendant. (Doc. 43) 16 21-DAY DEADLINE 17 On August 29, 2019, Defendant filed a motion for summary judgment on the merits of 18 Plaintiff’s claims. (Doc. 43.) Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. 19 Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), 20 the Court hereby notifies Plaintiff of the rights and requirements for opposing Defendant’s 21 motion. 22 1. Unless otherwise ordered, all motions for summary judgment are briefed in accordance 23 with Local Rule 230(l). 24 2. Plaintiff is required to file an opposition or a statement of non-opposition to 25 Defendant’s motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an 26 opposition or a statement of non-opposition to the motion this action may be dismissed, with 27 prejudice, for Plaintiff’s failure to obey a court order and failure to prosecute. The 28 opposition or statement of non-opposition must be filed not more than 21 days after the date of 1 service of the motion. Id. 2 3. A motion for summary judgment is a request for judgment on some or all of Plaintiff=s 3 claims in favor of Defendant without a trial. Fed. R. Civ. P. 56(a). Defendant’s motion sets forth 4 the facts which he contends are not reasonably subject to dispute and that entitle him to judgment 5 as a matter of law. Fed. R. Civ. P. 56(c). This is called the Statement of Undisputed Facts. Local 6 Rule 260(a). 7 Plaintiff has the right to oppose a motion for summary judgment. To oppose the motion, 8 Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in 9 Defendant’s motion, but argue that Defendant is not entitled to judgment as a matter of law. In 10 the alternative, if Plaintiff does not agree with the facts set forth in Defendant’s motion, Plaintiff 11 may show that Defendant’s facts are disputed in one or more of the following ways: (1) Plaintiff 12 may rely upon statements made under the penalty of perjury in the complaint or the opposition if 13 (a) the complaint or opposition shows that Plaintiff has personal knowledge of the matters stated 14 and (b) Plaintiff calls to the Court’s attention those parts of the complaint or opposition upon 15 which Plaintiff relies; (2) Plaintiff may serve and file declarations setting forth the facts which 16 Plaintiff believes prove his claims;1 (3) Plaintiff may rely upon written records but Plaintiff must 17 prove that the records are what he claims they are;2 or (4) Plaintiff may rely upon all or any part 18 of the transcript of one or more depositions, answers to interrogatories, or admissions obtained in 19 this proceeding. Should Plaintiff fail to contradict Defendant’s motion with declarations or other 20 evidence, Defendant’s evidence will be taken as truth, and final judgment may be entered without 21 a full trial. Fed. R. Civ. P. 56(e). 22 In opposing Defendant’s motion for summary judgment, Local Rule 260(b) requires 23 Plaintiff to reproduce Defendant’s itemized facts in the Statement of Undisputed Facts and admit 24 1A declaration is a written statement setting forth facts (1) which are admissible in evidence, (2) which are based 25 on the personal knowledge of the person giving the statement, and (3) to which the person giving the statement is competent to testify. 28 U.S.C. ' 1746; Fed.R.Civ.P. 56(c)(4). A declaration must be dated and signed under 26 penalty of perjury as follows: “I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” 28 U.S.C. ' 1746. 27 2 Sworn or certified copies of all papers referred to in the declaration must be included. Fed.R.Civ.P. 56(e). Further, if an exhibit consists of more than one page, Plaintiff must reference the specific page of the exhibit (i.e. 28 “See Exhibit A, page 3”) he relies on to establish a dispute of fact. 1 those facts which are undisputed and deny those which are disputed. If Plaintiff disputes (denies) 2 a fact, Plaintiff must cite to the evidence used to support that denial (e.g., pleading, declaration, 3 deposition, interrogatory answer, admission, or other documents). Local Rule 260(b). 4 4. If discovery has not yet been opened or if discovery is still open and Plaintiff is not yet 5 able to present facts to justify the opposition to the motion, the Court will consider a request to 6 postpone consideration of Defendant’s motion. Fed. R. Civ. P. 56(d). Any request to postpone 7 consideration of Defendant’s motion for summary judgment must include the following: (1) a 8 declaration setting forth the specific facts Plaintiff hopes to elicit from further discovery, (2) a 9 showing that the facts exist, and (3) a showing that the facts are essential to opposing the motion 10 for summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); 11 Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of 12 California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion 13 for summary judgment must identify what information is sought and how it would preclude 14 summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-01; Margolis v. 15 Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 16 5. Unsigned declarations will be stricken, and declarations or statements not signed under 17 penalty of perjury have no evidentiary value. 18 6. The failure of any party to comply with this order, the Federal Rules of Civil 19 Procedure, or the Local Rules of the Eastern District of California may result in the imposition of 20 sanctions including but not limited to dismissal of the action. 21 IT IS SO ORDERED. 22 23 Dated: August 30, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28