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Mark A. Van Velzor v. Central Garden & Pet Company
March 16, 2011
MARK A. VAN VELZOR, PLAINTIFF,
CENTRAL GARDEN & PET COMPANY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motions at Dockets 55, 56 & 57]
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.
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.
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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