Free Order on Motion for Discovery - District Court of Arizona - Arizona

SRM

1 2 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 Charles A. Hayes, Plaintiff -vsMaricopa Co. Sheriff's Office, et al., Defendant(s) CV-03-2550-PHX-NVW (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

EXTENSION OF DISCOVERY DEADLINES Under consideration is Plaintiff's Motion for Discovery, filed June 9, 2005 (#38). Defendants have not responded to the motion. Plaintiff seeks an extension of the discovery deadline to allow him to pursue various items of discovery. The deadline for discovery requests expired March 21, 2005. The deadline for discovery motions expired April 18, 2005. (See Order 10/22/04, #13.) It was on this basis that the Court denied Plaintiff's Motion to Compel (#36) as untimely, noting Plaintiff's failure to show excusable neglect for his delinquency. (See Order 5/26/05, #37.) When a deadline has expired, a motion to extend must be supported by a showing of excusable neglect. Fed. R. Civ. P. 6(b)(2). Plaintiff's current filing argues that: (1) he was moved to a private prison in Texas; (2) he has not received disclosure from Defendants; (3) Plaintiff's lack of legal counsel. While these assertions might explain the need for an extension, they do not explain Plaintiff's failure to take any action (including seeking an extension) until over two months after the expiration of the applicable deadline. Plaintiff has failed to show excusable neglect. EXTENSION OF DISPOSITIVE MOTION DEADLINES Also under consideration is Defendants' Second Motion to Extend Time to File Dispositive Motion, filed June 17, 2005 (#39). Plaintiff has not responded to the motion.
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Defendants seek a five day extension of the June 17, 2005 deadline for filing dispositive motions, citing delays in obtaining medical records as cause for the extension. On June 22, 2005, Defendants filed their motion for summary judgment (#40). Because this request for extension of time was filed prior to the expiration of the deadline, good cause will support the request. Fed. R. Civ. P. 6(b)(1). The Court finds good cause. BRIEFING ON MOTION FOR SUMMARY JUDGMENT Defendants have filed a Motion for Summary Judgment pursuant to Rule 56, Federal Rules of Civil Procedure (#40). The consideration of such motion will proceed as ordered herein. NOTICE - WARNING TO PLAINTIFF This Notice is Required to Be Given to Plaintiff 1 Defendants' motion for summary judgment seeks to have your case dismissed. Their 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 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 that summary judgment must be granted when there is no genuine issue of material fact -- that is there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly
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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).

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supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. Rule 56, Fed. R. Civ. P., subsection (e), provides in part as follows: 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. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. Plaintiff's attention is further directed to the provisions of the Local Rules of Civil Procedure for the District of Arizona. Subparagraph (e) of Local Civil Rule 7.2 provides: 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 including its supporting memorandum shall not exceed eleven (11) pages, exclusive of attachments. Subparagraph (a) of Local Civil Rule 56.1 provides: 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.
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Length Limitations - Plaintiff's Response to 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 Defendants' 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, which provides: If a motion does not conform in all substantial respects with the requirements of this Local 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 Defendants' favor and may enter judgment against Plaintiff without a trial. IT IS THEREFORE ORDERED that Plaintiff's Motion for Discovery, filed June 9, 2005 (#38) is DENIED. IT IS FURTHER ORDERED that Defendants' Second Motion to Extend Time to File Dispositive Motion, filed June 17, 2005 (#39) is GRANTED. Defendants' Motion for Summary Judgment, filed June 22, 2005 (#40) shall be deemed timely filed.
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IT IS FURTHER ORDERED that: 1. Response - Plaintiff shall have until August 26, 2005 within which to file a response to Defendants' Motion for Summary Judgment, filed June 22, 2005 (#40), together with a separate Statement of Facts in support of his response, supporting affidavits and other appropriate exhibits. 2. Reply - Defendants 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. Joint Proposed Pre-Trial Order - In the event that this motion for summary judgment remains pending within thirty days of any deadline set for filing of a jointly proposed pre-trial order, then such deadline shall be extended to a date thirty (30) days following the entry of an order disposing of this motion for summary judgment.

DATED: July 12, 2005
S:\Drafts\OutBox\03-2550-38o Order 05 07 06 re MExtend MExtend.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

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