Opinion
CASE NO. 1:09-cv-01667 OWW-SKO
08-11-2011
HAROLD WALKER, Plaintiff, v. FRESNO POLICE DEPARTMENT, et al., Defendants.
SECOND INFORMATIONAL ORDER
The parties to this litigation shall take note of the following requirements:
1. Unless otherwise ordered, all motions to dismiss, motions for summary judgment, motions concerning discovery, motions pursuant to Fed. R. Civ. P. 7, 11, 12, 15, 41, 55, 56, 59 and 60, and motions pursuant to Local Rule 110 shall be briefed pursuant to Local Rule 230. Failure to timely oppose such a motion may be deemed a waiver of opposition to the motion.
2. During the litigation, any Defendant may file a motion for summary judgment. Plaintiff is advised that he has the right to oppose the motion in writing.
3. Pursuant to 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 any Defendant pursuant to Fed. R. Civ. P. 56. Such a motion is a request for an order for judgment on some or all of Plaintiff's claims in favor of any moving Defendant without trial. See Fed. R. Civ. P. 56(b). Each Defendant's motion will set forth the facts that each Defendant contends are not reasonably subject to dispute and that entitle each Defendant to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
Written oppositions must be filed not more than 18 days, plus 3 days for mailing, after the date of service of the motion for summary judgment. Local Rule 230(m) provides that the failure to oppose a motion "may be deemed a waiver of any opposition to the granting of the motion . . . . " This means that the court may deem Plaintiff's failure to oppose each Defendant's motion for summary judgment as a waiver, and may recommend that the motion be granted on that basis.
To oppose the motion, Plaintiff must show proof of his or her claims. Plaintiff may agree with the facts set forth in each Defendant's motion but argue that each Defendant is not entitled to judgment as a matter of law. Plaintiff may show each Defendant's facts are disputed in one or more of the following ways: (1) Plaintiff may rely upon statements made under penalty of perjury in the complaint if the complaint shows that Plaintiff has personal knowledge of the matters stated and if Plaintiff calls the Court's attention to those portions of the complaint upon which Plaintiff relies; (2) Plaintiff may also serve and file affidavits or declarations setting forth the facts which Plaintiff believes prove Plaintiff's claims (the persons who sign the affidavit or declaration must have personal knowledge of the facts stated); (3) Plaintiff may also rely upon written records, but Plaintiff must prove that the records are what Plaintiff claims they are; (4) Plaintiff may also rely upon all or any part of the transcript of one or more depositions, answers to interrogatories, or admissions obtained in this proceeding. Should Plaintiff fail to contradict each Defendant's motion with affidavits, declarations, or other evidence, each Defendant's evidence will be taken as true, and final judgment may be entered without a full trial. See Fed. R. Civ. P. 56(e).
An affidavit is a written declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. An unsworn declaration has the same effect as an affidavit, provided that it is dated and signed under penalty of perjury, as follows: "I declare under penalty of perjury that the foregoing is true and correct." 28 U.S.C. § 1746. Affidavits and declarations must be made on personal knowledge and must set forth facts that would be admissible into evidence. See Fed. R. Civ. P. 56(c)(4).
Sworn or certified copies of all papers referred to in an affidavit must be attached to the affidavit and served on the opposing party. See Fed. R. Civ. P. 56(c).
If there is some good reason why such facts are not available to Plaintiff when required to oppose such a motion, the Court will consider a request to postpone considering each Defendant's motion. See Fed. R. Civ. P. 56(d). If Plaintiff does not serve and file a request to postpone consideration of each Defendant's motion or written opposition to the motion, the court may consider Plaintiff's failure to act as a waiver of opposition to each Defendant's motion. Plaintiff's waiver of opposition to each Defendant's motion may result in the entry of summary judgment against Plaintiff.
4. A motion supported by affidavits or declarations that are unsigned will be stricken.
5. The failure of any party to comply with the order, the Federal Rules of Civil Procedure, or the Local Rules of Court, may result in the imposition of sanctions including, but not limited to, dismissal of the action or entry of default.
IT IS SO ORDERED.
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE