United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOSEPH MCINERNEY,

Plaintiff,

 v.

CITY & COUNTY OF SAN FRANCISCO, et

al.,

Defendants.

 /

No. C 09-00430 JSW

ORDER RESETTING HEARING

ON MOTION FOR SUMMARY

JUDGMENT AND RAND NOTICE

This matter is currently set for a hearing on July 2, 2010 at 9:00 a.m. on Defendants’

Motion for Summary Judgment, to Dismiss Unserved Defendants, and for Judgment on the

Pleadings. Defendants have moved, pursuant to Federal Rule of Civil Procedure 56, for

summary judgment on the ground that there is no genuine dispute regarding any material issue

of fact. Having not received a timely opposition brief to the motion from Plaintiff, Joseph

McInerney (“McInerney”) the Court HEREBY VACATES the hearing date and RESETS the

hearing for August 6, 2010 at 9:00 a.m. The Initial Case Management Conference set for that

date is VACATED.

McInerney has an obligation to file an opposition to Defendants’ motion for summary

judgment and failure to do so may result in the dismissal of this case with prejudice. A motion

for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted,

end Plaintiff’s case. See Rand v. Rowland, 154 F.3d 952, 953-54 (9th Cir. 1998) (en banc). A

principal purpose of the summary judgment procedure is to identify and dispose of factually

supported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). In order to

Case 3:09-cv-00430-JSW Document 41 Filed 06/15/10 Page 1 of 4
United States District Court

For the Northern District of California

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withstand a motion for summary judgment, the opposing party must set forth specific 

facts showing that there is a genuine issue of material fact in dispute. Fed. R. Civ. P. 56(e). A

dispute about a material fact is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). In the absence of such facts, “the moving party is entitled to a judgment as a matter of 

law.” Celotex Corp., 477 at 323. 

In opposing summary judgment, McInerney is not entitled to rely on the allegations of

his complaint. See Fed. R. Civ. P. 56(e); cf. S. A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982) (stating that “a

party cannot manufacture a genuine issue of material fact merely by making assertions in its

legal memoranda”). Rather, McInerney’s response must set forth specific facts supported by

admissible evidence, i.e., affidavits or certified deposition testimony, showing that there is a

genuine issue for trial. See id.; see also Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)

(quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and stating that it is

not a district court’s task to “scour the record in search of a genuine issue of triable fact”). If

summary judgment is granted, McInerney’s case will be dismissed and there will be no trial. 

See Rand, 154 F.3d at 953-54.

Accordingly, McInerney has until Friday, July 9, 2010, to file an opposition to

Defendants’ motion. Defendants may file a reply brief no later than July 16, 2010. If no

opposition is filed, summary judgment may be granted. If summary judgment is granted,

McInerney’s case will be dismissed. If Plaintiff McInerney files an opposition, and if the Court

determines that the matter is suitable for resolution without oral argument, it will so advise the

parties in advance of the hearing date. 

//

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//

//

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United States District Court

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If the parties wish to modify this schedule, they may submit for the Court’s

consideration a stipulation and proposed order demonstrating good cause for any modification

requested.

IT IS SO ORDERED.

Dated: June 15, 2010 

JEFFREY S. WHITE

UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

FOR THE 

NORTHERN DISTRICT OF CALIFORNIA

JOSEPH MCINERNEY,

Plaintiff,

 v.

SF CITY & COUNTY et al,

Defendant. /

Case Number: CV09-00430 JSW 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District

Court, Northern District of California.

That on June 15, 2010, 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.

Joseph McInerney

P.O. Box 2625

San Jose, CA 95113

Dated: June 15, 2010

Richard W. Wieking, Clerk

By: Jennifer Ottolini, Deputy Clerk

Case 3:09-cv-00430-JSW Document 41 Filed 06/15/10 Page 4 of 4