Jackson v. Mead Westvaco

Filing 23

REPORT AND RECOMMENDATION; the Magistrate Judge RECOMMENDS that Plf's 22 MOTION for Summary Judgment, be DENIED; Objections to R&R due by 12/22/2009. Signed by Honorable Wallace Capel, Jr on 12/8/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION H A R R Y LEE JACKSON, P l a in tif f , v. M E A D WESTVACO COATED B O A R D , INC., D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CASE NO. 3:09-cv-695-MEF

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE B e f o re the Court is Plaintiff's "Motion For Summary Judgment" (Doc. #22). Plaintiff f ile d his Complaint (Doc. #1) on July 24, 2009, and an Amended Complaint (Doc. #4) on A u g u st 4, 2009. On September 18, 2009, Defendant filed an Answer (Doc. #12). The Court c o n d u c ted a scheduling conference with the parties on November 16, 2009, and entered its S c h e d u lin g Order (Doc. #20) that same day. Plaintiff filed the instant Motion on December 1 , 2009. P la in tif f 's Motion consists of one page and is essentially a replica of the Amended C o m p la in t.1 Thus, Plaintiff's Motion is premised on nothing more than the allegations

Specifically, the Motion For Summary Judgment includes, verbatim, the two paragraphs which comprise the Amended Complaint and simply adds the following paragraph: "I, Harry Lee Jackson, Plaintiff, respectfully request that the Scheduling Order be dismissed in this case and that the case be decided by only the facts presented on November 16, 2009, pro se, and a decision or ruling be made by Your Honor or through voluntary mediation in favor of the Plaintiff." Motion (Doc. #22). 1

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P la in tif f has lodged in his Amended Complaint.2 Plaintiff has submitted no evidentiary s u p p o rt for the allegations in his Amended Complaint.3 As such, Plaintiff's Motion For S u m m a ry Judgment does not comply with this Court's Orders (Docs. #20, 21) setting forth th e form and content for dispositive motions. For this reason, as well as its prematurity, P la in tif f 's Motion is due to be denied. P lain tiff ' s Motion is also due to be denied pursuant to the legal requirements g o v e rn in g motions for summary judgment. Under Rule 56(c) of the Federal Rules of Civil P ro c e d u re , summary judgment is appropriate "if the pleadings, depositions, answers to interrog ato ries, 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 a s a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole could lead a reasonable trier of fact to find for the n o n m o v in g party. An issue is `material' if it might affect the outcome of the case under the g o v e rn in g law." Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th C ir.1 9 9 6 ) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). T h e party asking for summary judgment "always bears the initial responsibility of

Plaintiff's "request" that he be awarded summary judgment based on "only the facts presented on November 16, 2009," is confusing, as this simply marks the date on which the Court conducted the scheduling conference with the parties. No evidence or argument was presented to or entertained by the Court on November 16, 2009. The failure to submit such evidence is understandable, and expected, given that discovery in this case has only just commenced and is scheduled to last until June 14, 2010. See Uniform Scheduling Order (Doc. #20) at 2. 2
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in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. In this instance, Plaintiff's Motion For Summary Judgment consists only of the exact a lle g a tio n s of his Complaint, with no supporting evidentiary submissions. As Plaintiff has f a ile d to present any evidence supporting the allegations of the Amended Complaint, and D e f e n d a n t has already filed an Answer denying each of the substantive allegations of w ro n g d o in g in the Amended Complaint, see Answer (Doc. #12), the Court is unable to co n c lu d e that there does not exist a genuine issue of material fact. Plaintiff has therefore fa iled to sustain his initial burden in requesting summary judgment. Accordingly, summary ju d g m e n t is due to be denied. F o r the reasons specified above, the Magistrate Judge RECOMMENDS that P la in tif f 's Motion for Summary Judgment (Doc. #22), be DENIED. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n by December 22, 2009. Any objections filed must specifically identify the f in d in g s in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive or

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g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g i s tr a te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th C ir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. DONE this 8th day of December, 2009.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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