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Gonzalez v. Higgins

United States District Court, E.D. California
May 29, 2008
No. CIV S-07-0135 GEB KJM P (E.D. Cal. May. 29, 2008)

Opinion

No. CIV S-07-0135 GEB KJM P.

May 29, 2008


ORDER


The court notes that defendant Higgins has filed a motion for summary judgment. Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), plaintiff is advised of the following requirements for opposing a motion for summary judgment made by Rule 56 of the Federal Rules of Civil Procedure. Such a motion is a request for an order for judgment in favor of defendant without trial. A defendant's motion for summary judgment will set forth the facts that 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 upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon 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 upon written records, but plaintiff must prove that the records are what plaintiff claims they are. Plaintiff may rely upon 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 defendant's evidence may be taken as the truth and the defendant's motion for summary judgment granted. 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 considering the defendant's motion. If the defendant's motion for summary judgment, whether opposed or unopposed, is granted, judgment will be entered for the defendant without a trial and the case will be closed.

Plaintiff has already submitted an opposition to defendant's motion for summary judgment. In light of the fact that the court had not provided plaintiff with the requirements for opposing summary judgment prior to plaintiff filing his opposition, plaintiff will be given thirty days to file an amended opposition. If plaintiff elects to stand on his previous opposition, he shall inform the court as soon as possible.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff is granted thirty days within which to file an amended opposition to defendant's motion for summary judgment.

2. If plaintiff elects to stand on the opposition he has already filed, he shall so inform the court as soon as possible.

3. If plaintiff files an amended opposition, defendant may file an amended reply within fifteen days of service of the amended opposition.


Summaries of

Gonzalez v. Higgins

United States District Court, E.D. California
May 29, 2008
No. CIV S-07-0135 GEB KJM P (E.D. Cal. May. 29, 2008)
Case details for

Gonzalez v. Higgins

Case Details

Full title:JUAN GONZALEZ, Plaintiff, v. C/O HIGGINS, et al., Defendants

Court:United States District Court, E.D. California

Date published: May 29, 2008

Citations

No. CIV S-07-0135 GEB KJM P (E.D. Cal. May. 29, 2008)