It's worth publishing this opinion just to point out what the 2010 amendments to the Federal Rules of Civil Procedure alerady make crystal clear: You can't grant a summary judgment motion just because the opposing party failed to oppose it. Regardless of what the local rules might say. Can't do it.
Mind you, as the Ninth Circuit held, the motion for summary judgment here had merit. So the district court's decision gets affirmed.
But on the merits. Not because -- as the district court held -- the local rules say that the failure to file an opposition is deemed consent to the motion. That may be good enough for ordinary motions, but not motions for summary judgment.
P.S. - I'm not entirely sure what type of lawyer wants to jump into a meritless case that the plaintiff has unsuccessfully (and repeatedly) litigated below pro se. But somehow Mr. Heinemann gets an attorney in the Ninth Circuit. Doesn't prevail. But at least gets the Ninth Circuit to agree with him on one point. Albeit an irrelevant one in this particular (meritless) case.
POSTSCRIPT - Informed readers tell me that plaintiff's lawyer was appointed by the Ninth Circuit. Which makes sense, and I had thought that was possible at the time. But the attorney wasn't part of the "usual" Ninth Circuit pro bono crowd, and I didn't immediately look up the docket. Thanks for the informed e-mails, as always.
