Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Gerald Byerly, Plaintiff, vs. Deputy Warden; et al., Defendants.

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No. CIV 04-323-PHX-FJM (GEE) ORDER

The defendant has filed a Motion for Summary Judgment pursuant to Rule 56, Federal Rules of Civil Procedure. The consideration of such motion will proceed as ordered herein.

NOTICE - WARNING TO PLAINTIFF This Notice is Required to Be Given to Plaintiff 1 Defendant's motion for summary judgment seeks to have your case dismissed. The motion will, if granted, end your case. Rule 56 Federal Rules of Civil Procedure, tells you what you must do in order to oppose a motion for summary judgment. In particular, Rule 56(c), Federal Rules of Civil Procedure says: (c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
Document 68 Filed 09/12/2005 Page 1 of 4

Case 2:04-cv-00323-FJM

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of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Generally, that means summary judgment must be granted when there is no genuine

6 issue of material fact -- that is there is no real dispute about any fact that would affect the 7 result of your case and the party who asked for summary judgment is entitled to judgment 8 as a matter of law. 9 When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers 12 to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the 13 facts shown in the defendant's declarations and documents and show that there is a genuine 14 issue of material fact for trial. 15 Rule 56, Fed. R. Civ. P., subsection (e), provides in part as follows: 16 17 18 19 20 If you do not submit your own evidence in opposition, summary judgment, if 21 appropriate, may be entered against you. If summary judgment is granted, your case will 22 be dismissed and there will be no trial. 23 Plaintiff's attention is further directed to the provisions of Local Civil Rule 7.2, Rules 24 of Practice of the United States District Court for the District of Arizona. Subparagraph (e) 25 of that Rule provides: 26 27 28 Unless otherwise permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, each shall not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts. Unless otherwise permitted by the Court, a reply -2Case 2:04-cv-00323-FJM Document 68 Filed 09/12/2005 Page 2 of 4

When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

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including its supporting memorandum shall not exceed eleven (11) pages, exclusive of attachments. Subparagraph (a) of Local Civil Rule 56.1 provides:

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Any party filing a motion for summary judgment shall set forth separately from the memorandum of law, and in full, the specific facts on which that party relies in support of the motion. The specific facts shall be set forth in serial fashion and not in narrative form. As to each fact, the statement shall refer to a specific portion of the record where the fact may be found (i.e., affidavit, deposition, etc.). Any party opposing a motion for summary judgment must comply with the foregoing in setting forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party. In the alternative, the movant and the party opposing the motion shall jointly file a stipulation signed by the parties setting forth a statement of the stipulated facts if the parties agree there is no genuine issue of any material fact. As to any stipulated facts, the parties so stipulating may state that their stipulations are entered into only for the purposes of the motion for summary judgment and are not intended to be otherwise binding. Length Limitations - Plaintiff's Response to the Motion for Summary Judgment, including his Memorandum of Points and Authorities in Support of Plaintiff's Response to Motion for Summary Judgment may not exceed seventeen (17) pages in length, without the prior approval of the court. Attachments in support of his responsive memorandum are not included in the seventeen page limit; nor is the required Statement of Facts. Statement of Facts Requirements - The Statement of Facts must set forth the specific facts upon which Plaintiff relies in support of his position opposing Defendant's Motion for Summary Judgment. The facts must be set forth in regular succession, preferably numbered individually, and each must be accompanied by a reference to where each fact may be located (i.e., in an affidavit, deposition transcript, answers to interrogatories, admissions, etc.). Documentary Evidence Required - Plaintiff is warned that each fact must be supported by documentary evidence. It is not enough for Plaintiff to merely allege that a certain fact exists. This allegation must be supported by an affidavit, deposition transcript, answer to interrogatory under oath, or similar sworn evidence. Failure to Comply - Finally, Plaintiff's attention is directed to Subparagraph (i) of Local Civil Rule 7.2 of the Rules of Practice, which provides: -3Case 2:04-cv-00323-FJM Document 68 Filed 09/12/2005 Page 3 of 4

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If a motion does not conform in all substantial respects with the requirements of this Rule, or if the opposing party does not serve and file the required answering memoranda . . . such non-compliance may be deemed a consent to the . . . granting of the motion and the court may dispose of the motion summarily. In other words, if Plaintiff doesn't substantially comply with each of the above listed requirements, the court may deem that he has consented to entry of judgment in Defendant's favor and may enter judgment against Plaintiff without a trial. IT IS THEREFORE ORDERED that: 1. Response - Plaintiff shall have until October 13, 2005 within which to file a response to Defendant's Motion for Summary Judgment, together with a separate Statement of Facts in support of his response, supporting affidavits and other appropriate exhibits. 2. Reply - Defendant shall have 15 days following service of the response in which to file a reply. 3. Decision - The motion shall be deemed to be ready for decision without oral argument on the day following the date set for filing the reply unless otherwise ordered by the Court. 4. If the motion is not granted in its entirety, the parties shall file a joint proposed pretrial order within 30 days from the date the motion for summary judgment is resolved. The parties should contact the Court for instructions concerning the proper form of the pretrial order. DATED this 12th day of September, 2005.

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