Will Key Jefferson, Plaintiff-appellant, v. John M. Asplund et al., Defendants-appellees, 467 F.2d 199 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 467 F.2d 199 (9th Cir. 1972) Sept. 26, 1972

Will Key Jefferson, in pro. per.

Richard A. Helm (argued), of Burr, Pease & Kurtz, Richard W. Garrett, III, Asst. Atty. Gen. (argued), John E. Havelock, Atty. Gen., Ely, Guess & Rudd, Anchorage, Alaska, for defendants-appellees.

Before MERRILL, DUNIWAY and TRASK, Circuit Judges.


This is an appeal from dismissal of appellant's civil rights action. Appellant makes three assignments of error, all of which we find to be without merit.

1. Appellant asserts that the defendants waived their motion for summary judgment by filing and serving their answer subsequent to the filing of their motion for summary judgment. This we reject as contrary to the plain language of Rule 56(b) of the Federal Rules of Civil Procedure.

2. Appellant asserts that he did not receive the notice prescribed by the Federal Rules of Civil Procedure as to hearing on his motion to set aside summary judgment. The record establishes that he received adequate notice.

3. Appellant asserts that the District Court erred in giving effect to local Rule 5, since that rule is inconsistent with the Federal Rules of Civil Procedure. We disagree. The local rule simply provides a method whereby a party opposing a motion for summary judgment may request oral argument. Dredge Corp. v. Penny, 338 F.2d 456, 461-462 (9th Cir. 1964).

Judgment affirmed.