(PC) Wheaten v. Knoll ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WHEATEN, Case No. 1:18-cv-00885-AWI-JLT (PC) 12 Plaintiff, SECOND INFORMATIONAL ORDER NOTICE AND WARNING OF REQUIREMENTS 13 v. FOR OPPOSING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 KNOLL, et al., (Doc. 35) 15 Defendants. 21-DAY DEADLINE 16 17 On August 5, 2019, Defendants filed a motion for summary judgment. (Doc. 35.) 18 Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 154 F.3d 952 (9th 19 Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the Court hereby notifies 20 Plaintiff of the rights and requirements for opposing the motion. 21 1. Unless otherwise ordered, all motions for summary judgment are briefed in accordance 22 with Local Rule 230(l). 23 2. Plaintiff is required to file an opposition or a statement of non-opposition to 24 Defendants’ motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an 25 opposition or a statement of non-opposition to the motion, this action may be dismissed, 26 with prejudice, for failure to prosecute. The opposition or statement of non-opposition must be 27 filed not more than 21 days after the date of service of the motion. Id. 28 3. A motion for summary judgment is a request for judgment on some or all of Plaintiff’s 1 claims in favor of Defendants without trial. Fed. R. Civ. P. 56(a). Defendants’ motion sets forth 2 the facts which they contend are not reasonably subject to dispute and that entitle them to 3 judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the Statement of Undisputed 4 Facts. Local Rule 260(a). 5 Plaintiff has the right to oppose a motion for summary judgment. To oppose the motion, 6 Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in 7 Defendants’ motion but argue that Defendants are not entitled to judgment as a matter of law. 8 In the alternative, if Plaintiff does not agree with the facts set forth in Defendants motion, 9 Plaintiff may show that Defendants’ facts are disputed in one or more of the following ways: (1) 10 Plaintiff may rely upon statements made under the penalty of perjury in the complaint or the 11 opposition if (a) the complaint or opposition shows that Plaintiff has personal knowledge of the 12 matters stated and (b) Plaintiff calls to the Court’s attention those parts of the complaint or 13 opposition upon which Plaintiff relies; (2) Plaintiff may serve and file declarations setting forth 14 the facts which Plaintiff believes prove his claims;1 (3) Plaintiff may rely upon written records but 15 Plaintiff must prove that the records are what he claims they are;2 or (4) Plaintiff may rely upon 16 all or any part of the transcript of one or more depositions, answers to interrogatories, or 17 admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendants’ motion 18 with declarations or other evidence, Defendants’ evidence will be taken as truth, and final 19 judgment may be entered without a full trial. Fed. R. Civ. P. 56(e). 20 In opposing Defendants’ motion for summary judgment, Local Rule 260(b) requires 21 Plaintiff to reproduce Defendants’ itemized facts in the Statement of Undisputed Facts and admit 22 those facts which are undisputed and deny those which are disputed. If Plaintiff disputes (denies) 23 a fact, Plaintiff must cite to the evidence used to support that denial (e.g., pleading, declaration, 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: AI 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 and served on the opposing party. Fed. R. Civ. P. 56(e). Further, if an exhibit consists of more than one page, Plaintiff must reference 28 the specific page of the exhibit (i.e. “See Exhibit A, page 3”) he relies on to establish a dispute of fact. 1 deposition, interrogatory answer, admission, or other document) and must describe how the 2 evidence cited disputes Defendants’ facts. Local Rule 260(b). If an exhibit contains more than 3 one page, Plaintiff must cite which page(s) of the exhibit he relies on to establish a dispute (i.e. 4 “Exh. A, pp. 5-7,” not merely “Exh. A”). 5 4. If discovery has not yet been opened or if discovery is still open and Plaintiff is not yet 6 able to present facts to justify the opposition to the motion, the Court will consider a request to 7 postpone consideration of Defendants’ motion. Fed. R. Civ. P. 56(d). Any request to postpone 8 consideration of Defendants’ motion for summary judgment must include the following: (1) a 9 declaration setting forth the specific facts Plaintiff hopes to elicit from further discovery, (2) a 10 showing that the facts exist, and (3) a showing that the facts are essential to opposing the motion 11 for summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); 12 Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of 13 California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion 14 for summary judgment must identify what information is sought and how it would preclude 15 summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-01; Margolis v. 16 Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 17 5. Unsigned declarations will be stricken, and declarations not signed under penalty of 18 perjury have no evidentiary value. 19 6. The failure of any party to comply with this order, the Federal Rules of Civil 20 Procedure, or the Local Rules of the Eastern District of California may result in the 21 imposition of sanctions including but not limited to dismissal of the action or entry of 22 default. 23 IT IS SO ORDERED. 24 25 Dated: August 7, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28