(PC) Wagner v. Posner et al, No. 2:2009cv03166 - Document 29 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/26/2010 RECOMMENDING that dfts' 20 motion to dismiss be granted. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due w/in 21 days.(Yin, K)

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(PC) Wagner v. Posner et al Doc. 29 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLINTON WAGNER, 11 Plaintiff, vs. 12 13 MOSS POSNER, et al., Defendants. 14 FINDINGS & RECOMMENDATIONS / 15 On April 20, 2010, defendants Schuster and Posner filed a motion to dismiss 16 17 No. 2:09-cv-3166 FCD KJN P pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff has not opposed the motion. Local Rule 230(l) provides in part: “Failure of the responding party to file written 18 19 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 20 the granting of the motion . . . .” On February 17, 2010, plaintiff was advised of the requirements 21 for filing an opposition to a motion to dismiss and that failure to oppose such a motion may be 22 deemed a waiver of opposition to the motion. 23 //// 24 //// 25 //// 26 //// 1 Dockets.Justia.com 1 Accordingly, plaintiff’s failure to oppose should be deemed a waiver of 2 opposition to the granting of the motion. The defendants’ arguments in the motion are well 3 taken. IT IS HEREBY RECOMMENDED that the motion to dismiss filed April 20, 2010, on 4 behalf of defendants Schuster and Posner (Dkt. No. 20) be granted. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 7 one days after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 shall be served and filed within ten days after service of the objections. The parties are advised 11 that failure to file objections within the specified time may waive the right to appeal the District 12 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: May 26, 2010 14 15 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 16 17 18 wag3166.46 19 20 21 22 23 24 25 26 2

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