Free Motion for Ruling - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 Shannon Michael Clark, 9 Plaintiff, 10 v. 11 ValueOptions, Inc., et al. 12 Defendant. 13 14 Pursuant to Local Rule 7.2(i), Defendants Thomas Nathan Crumbley ("Crumbley") 15 and Karen Lynette Marshall ("Marshall") (collectively "Defendants") hereby request that 16 this Court summarily dispose of the presently pending Motions for Summary Judgment (the 17 "Motions"). 18 Fed.R.Civ.P. [Doc. 266 and 267]. The time for Plaintiff to file a response, as established 19 by Rule and by this Court in its Order filed on October 5, 2006, is thirty (30) days from the 20 21 In its October 5, 2006 Order, this Court expressly advised Plaintiff that his failure to file 22 a response may be deemed as a consent to granting of Defendants' Motions, which may 23 result in the dismissal of Plaintiff's case against Defendants pursuant to Local Rule 7.2(i). 24 [Id]. Defendants have not been served with any response nor has Plaintiff submitted a 25 single Rule 56 affidavit in opposition to the Motions. Wherefore, Defendants respectfully 26 27 28 Even if the time is calculated to include three (3) days for mailing, the deadline to file a response was October 30, 2006.
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Case

No.

CIV-03-1344-PHX-EHC (HCE)

MOTION FOR SUM M ARY DISPOSITION REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

The Motions were filed on September 27, 2006 pursuant to Rule 56,

date of filing of the Motions on September 27, 2006 or by October 27, 2006.1 [Doc. 269].

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request that this Court enter an order granting judgment in favor of Defendants. This Motion is supported by the following Memorandum of Points and Authorities. DATED this ___ day of December, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By:________________________________ Russell A. Kolsrud Brad M. Thies Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS AND PROCEDURAL POSTURE Defendants filed the Motions on September 27, 2006 based upon the same justification relied upon by this Court in its order dismissing Defendant ValueOptions. [Doc. 266 and 267]. On October 12, 2006, Plaintiff filed a Motion to Stay Summary Judgment Proceedings based upon inapplicable legal grounds and insufficient factual allegations. [Doc. 272]. Defendants' responded in opposition to Plaintiff's Motion to Stay on October 23, 2006. [Doc. 279 and 280]. Plaintiff then filed a one page reply on October 30, 2006, which, similar to Plaintiff's Motion to Stay, also lacked any substantive legal justification to stay the matter. [Doc. 282]. On October 5, 2006, almost immediately after Defendants filed their Motions for Summary Judgment, this Court issued an Order placing Plaintiff on notice that he must file a response pursuant to Rule 56 within thirty (30) days of the date of filing of the Motions. [Doc. 269]. The Order specifically advised Plaintiff: "that his failure to file a response may be deemed as his consent to the granting of Defendants' Motions, which may result in dismissal of Plaintiff's case against Defendants." [Id.]. Despite this Court's clear notice to Plaintiff that he was required to file a response to the Motions within thirty (30) days after being served with the Motions, Plaintiff has failed to file any response compliant with the

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mandates of Rule 56. [Docket]. Plaintiff has failed to do so even though approximately ninety (90) days have passed since the filing of Defendants' Motions. [Id]. II. ARGUMENT Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a non-moving party must respond to a properly supported motion for summary judgment by setting 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." Id. Furthermore, Local Rule 7.2(i) provides that, "If the opposing party does not serve and file the required answering memoranda ... such non-compliance may be deemed a consent to the denial or granting of the motion and the court may dispose of the motion summarily." In the present matter, Defendants Marshall and Crumbley filed their Motions for Summary Judgment on September 27, 2006. [Doc. 266 and 267]. Though Plaintiff has filed a frivolous and baseless Motion to Stay Summary Judgment Proceedings, Plaintiff has not filed any response to the Defendants' Motions even though approximately ninety (90) days have passed. Plaintiff's failure to file a response is inexcusable, especially based upon this Court's express notice to Plaintiff that his failure to respond within thirty (30) days would be deemed as consent to the granting of the Motions that could result in dismissal of his case against Defendants. [Doc. 269]. It is Plaintiff's obligation to timely respond to all Motions. The failure of Plaintiff to respond to Defendants' Motions for Summary Judgment may, in the discretion of the Court, be deemed as consenting to the granting of the Motions without further notice, and judgment may be entered dismissing the Complaint and action with prejudice pursuant to L.R.Civ. 7.2(i). Brydges v. Lewis, 18 F.3d 651 (9 th Cir. 1994) (upholding dismissal based upon prisoner pro se plaintiff's failure to respond to defendant's summary judgment after being warned of the consequences of a failure to respond through an order of the court). Similarly here, Plaintiff's failure to file a response should be deemed a consent to the

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granting of Defendants' Motions. III. CONCLUSION Based upon the foregoing, Defendants Marshall and Crumbley respectfully request that this Court enter an order granting the Motions due to Plaintiff's failure to respond or provide any opposition despite being given specific notice of such a requirement by this Court's Order. DATED this 14th day of December, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 /s/ Pam Whitmore Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per The Honorable Hector C. Estrada United States District Court 405 West Congress Street Tucson, AZ 85701 Copy of the foregoing mailed this 14 th day of December, 2006, to: Original of the foregoing e-filed with the Clerk this 14 th day of December, 200, and Copy hand-delivered this 15th day of December, 2006, to: The Honorable Earl H. Carroll United States District Court 401 West Washington Street Phoenix, AZ 85003

/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendants

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