Chevalier v. Ray & Joan Kroc Corps. Community Center et al
Filing
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ORDER: That Plaintiff's Opposition/Statement of Non-Opposition is due no later than (10) ten-days from the date of this Order. Defendant's Reply due no later than (7) seven-days after Plaintiff's Response re 34 Motion to Dismiss Amended Complaint. Signed by Judge Saundra Brown Armstrong, on 8/9/12. (lrc, COURT STAFF) (Filed on 8/14/2012) Modified on 8/15/2012 (jlm, COURT STAFF).
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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KIA CHEVALIER,
Case No: C 11-4891 SBA
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Plaintiff,
ORDER
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vs.
Docket 34.
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RAY & JOAN KROC CORPS.
10 COMMUNITY CENTER, SALVATION
ARMY RAILTON PLACE, 242 TURK
11 STREET (SF), 94102-3808,
Defendants.
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Pro se Plaintiff Kia Chevalier ("Plaintiff") filed the instant action on September 30,
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2011. Compl., Dkt. 1. On June 8, 2012, this Court issued an Order dismissing the
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complaint with leave to amend for failure to state an actionable claim. Dkt. 31. Plaintiff
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filed a first amended complaint ("FAC") on July 2, 2012. Dkt. 33. On July 16, 2012,
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Defendant The Salvation Army ("Defendant") filed a motion to dismiss under Rule
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12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 34. Under Civil Local Rule 7-3(a),
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any opposition or statement of non-opposition to Defendant's motion was due no later than
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14 days after the motion was filed.1 This Court's Standing Orders specifically warn that
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"failure of the opposing party to file a memorandum of points and authorities in opposition
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to any motion shall constitute a consent to the granting of the motion." Civil Standing
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Orders at 5, Dkt. 11. Notwithstanding the requirements of Civil Local Rule 7-3(a) and the
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Court's warning, Plaintiff has not filed a response to Defendant's motion.
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However, under this rule, the Court extends by 3 days the deadline to file an
opposition to a motion if the motion was not filed and served through the Court's Electronic
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A district court may properly grant a motion for failure to file an opposition. See
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Gwaduri v. I.N.S., 362 F.3d 1144, 1146-1147, n. 3 (9th Cir. 2004) (noting that courts have
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the authority to grant unopposed motions); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.
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1995) (the failure to file an opposition to a motion in violation of a local rule is a proper
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ground to grant the motion). Here, although Plaintiff's failure to file an opposition to the
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motion to dismiss is a proper ground to grant the motion, the Court, in light of Plaintiff's
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pro se status, will afford her another opportunity to file a response to the motion.
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Accordingly, IT IS HEREBY ORDERED THAT:
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1.
Plaintiff shall file an opposition or statement of non-opposition to Defendant's
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motion to dismiss (Dkt. 34) by no later than ten (10) days from the date this Order is filed.
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In the event that Plaintiff files a timely response to the motion, Defendant shall file a reply
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brief by no later than seven (7) days from the date Plaintiff's response is filed. Upon the
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completion of briefing, this matter will be taken under submission without oral argument.
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The Court warns Plaintiff that the failure to timely comply with this Order will result in
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dismissal of this action.
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2.
The hearing scheduled for August 21, 2012 is VACATED.
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Defendant shall notify the Court if Plaintiff fails to comply with this Order.
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IT IS SO ORDERED
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Dated: 8/9/12
_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
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CHEVALIER et al,
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Plaintiff,
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v.
RAY & JOAN KROC CORPS. COMMUNITY
CENTER et al,
Defendant.
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Case Number: CV11-04891 SBA
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CERTIFICATE OF SERVICE
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
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That on August 14, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
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Kia Chevalier
Post Office Box 55641
Hayward, CA 94545-0641
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Dated: August 14, 2012
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk
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