Free Order on Motion for Summary Judgment - District Court of California - California

Case 3:07-cv-05113-JSW

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Filed 09/09/2008

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1 2 3 4 5 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 10 v. SAN FRANCISCO CULINARY BARTENDERS AND SERVICE EMPLOYEES PENSION FUND, Defendant. / 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant San Francisco Culinary Bartenders and Service Employees Pension Fund ("Defendant") has filed what purports to be a motion for summary judgment. However, upon review of the entire filings in the record, the Court notes that the motion itself indicates that it is filed pursuant to Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (See Br. at 1.) Although the motion also indicates that it moves on the ground that there is no genuine issue as to any material fact, the standard under the appropriate Federal Rule 56, the Court is concerned that because Plaintiffs appear pro se and has opposed the motion referencing the standard under Rule 12(b)(6) as well as having submitted no evidence to the Court, that Defendant's motion engendered confusion. Therefore, the Court DENIES the motion for summary without prejudice to Defendant re-noticing and re-drafting such a motion to indicate the proper standard. Therefore, the hearing date of September 19, 2008 is HEREBY VACATED. ORDER DENYING MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE TO REFILING JUANITA E. SUGUITAN, et al., Plaintiffs, No. C 07-05113 JSW IN THE UNITED STATES DISTRICT COURT

United States District Court

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For the Northern District of California

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Case 3:07-cv-05113-JSW

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Plaintiffs should be aware that failure to oppose a proper motion for summary judgment 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 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, Plaintiff 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, Plaintiff'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 Defendant re-files the motion and summary judgment is granted, Plaintiffs' case will be dismissed and there will be no trial. See Rand v. Rowland 154 F.3d at 953-54.

United States District Court

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For the Northern District of California

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IT IS SO ORDERED. Dated: September 9, 2008 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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Case 3:07-cv-05113-JSW

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1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 7 8 9 10 v. SAN FRANCISCO CULINARY BARTENDERS AND SERVICE EMPLOYEES PENSION FUND et al, Defendant. / JUANITA E. SUGUITAN et al, Plaintiff, Case Number: CV07-05113 JSW CERTIFICATE OF SERVICE

United States District Court

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For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: September 9, 2008 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk John E. Suguitan 2509 La Union Gonzales, Tubao Phillipines, 601 Juanita Suguitan 2509 La Union Gonzales, Tubao Phillipines, 601 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 September 9, 2008, 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.