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Mark A. Van Velzor v. Central Garden & Pet Company

March 16, 2011

MARK A. VAN VELZOR, PLAINTIFF,
v.
CENTRAL GARDEN & PET COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION

[Re: Motions at Dockets 55, 56 & 57]

I. MOTION PRESENTED

At docket 55, plaintiff Mark A. Van Velzor ("plaintiff" or "Mr. Van Velzor") moves to reopen the case. At docket 56, plaintiff moves to stay the judgment and taxing of costs. At docket 57, plaintiff requests that no appeal bond be required. Defendants Central Garden & Pet Company and Petco Animal Supplies Stores, Inc. (collectively "defendants") oppose the motions at docket 64. Mr. Van Velzor's reply is at docket 66. Oral argument was not requested and would not assist the court.

II. BACKGROUND

Mr. Van Velzor maintained that defendants sold a substrate that harmed his monitor lizard. Plaintiff initially filed suit in Alaska state court and asserted claims for products liability and unfair trade practices based on the alleged misrepresentation of the substrate's suitability for monitor lizards. The case was removed on the basis of diversity jurisdiction.*fn1

On October 5, 2010, plaintiff moved for leave to amend his complaint.*fn2 On October 29, 2010, the court granted plaintiff's motion and ordered the plaintiff to file his amended complaint within 14 days.*fn3 On November 24, 2010, plaintiff was ordered to show cause why his case should not be dismissed for failing to file his amended complaint as required by the court's previous order.*fn4 On December 29, 2010, the court dismissed the case without prejudice for failure to comply with the court's orders.*fn5

Judgment was entered for defendants.*fn6 Mr. Van Velzor has appealed to the Ninth Circuit Court of Appeals.

III. DISCUSSION

A. Motion to Reopen Case and Motion for No Appeal Bond

Local Rule 7.1 requires that the document which initiates a motion must be accompanied by "a brief statement of points and authorities relevant to the relief requested."*fn7 Moreover, "[f]ailure to include proper materials in support of . . . a motion . . . subjects the motion to summary ruling by the court."*fn8 Where "the failure is by the moving party, it may be deemed an admission that the motion is without merit."*fn9
Plaintiff's motion to reopen the case and his motion for no appeal bond are unaccompanied by supporting memoranda. Although plaintiff's pro se status entitles him to special consideration under some circumstances, compliance with procedural rules is inflexible. "Pro se litigants must follow the same rules of civil procedure that govern other litigants."*fn10 That includes local rules, and alleged ignorance of the rules does not excuse noncompliance.*fn11 Pursuant to Local Rule 7.1, Mr. Van Velzor's motion to reopen the case and motion for no appeal bond are deemed to be without merit.

B. Motion for Stay of Judgment and Taxing of Costs

Mr. Van Velzor's motion to stay the judgment is accompanied by a supporting memorandum. The factors governing whether a stay should be issued pending appeal are the same factors as those governing preliminary injunctive relief.*fn12 Those factors are (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm in the absence of a stay, (3) the ...


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