Wiseman v. Herrera et al

Filing 40

ORDER Granting Defendants' 34 Motion to Strike Plaintiff's 32 Motion for Partial Summary Judgment, signed by Magistrate Judge Jennifer L. Thurston on 12/31/14. Motion for Extension of Time 35 Disregarded as Moot. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHESTER RAY WISEMAN,

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Plaintiff,

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v.

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HERRERA, et al

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Case No. 1:12-cv-01730-AWI-JLT (PC)
ORDER GRANTING DEFENDANTS'
MOTION TO STRIKE PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT
(Docs. 32, 34, 35)

Defendants.

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On October 31, 2014, Plaintiff filed a motion for partial summary judgment. (Doc. 32.)

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On November 13, 2014, Defendants filed a motion to strike Plaintiff's motion on the grounds that

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it failed to comply with Federal Rule of Civil Procedure 56(e) and Local Rule 260(a). (Doc. 34.)

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Plaintiff filed an opposition on December 24, 2014. (Doc. 38.)

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In their motion to strike, Defendants correctly state that Plaintiff failed to cite to record

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material to support his Statement of Undisputed Facts. (Doc. 34, p.1.) Further, upon review, no

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assistance is found in his memorandum of points and authorities supporting his motion as

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Plaintiff only generally refers to the attached exhibits (i.e., "See Exhibits A, C, and D") rather

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than pointing the reader the specific evidence used to support his position/arguments (e.g., "See

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Exhibit A, Def. Godinez resp to Rog. #3, p. 3"). Thus, Plaintiff’s motion for partial summary

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judgment is deficient as it fails to comply with both Local Rule 260 and Federal Rule of Civil

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Procedure 56.
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Defendants also argue that Plaintiff's declaration in support of his motion contains

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improper legal conclusions and opinion testimony in violation of Federal Rule of Civil Procedure

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56(c)(4). (Doc. 34, p. 3.) Indeed, both of the declarations that Plaintiff attached to his motion do

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contain improper legal conclusions and opinion testimony rather than statements based on his

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personal knowledge.

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In opposition to Defendants' motion to strike, Plaintiff acknowledges the errors and argues

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that he can rectify the errors by being allowed to submit a new Statement of Undisputed Facts and

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new declarations to support his motion. However, since his motion and all supporting documents

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have already been filed with the Court and total nearly two-hundred pages, it appears that

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confusion would easily be created by allowing Plaintiff to submit edited versions of various

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excerpted documents. The clearer, less confusing path, would be to strike Plaintiff's motion for

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partial summary judgment and grant him leave to file anew.1

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Accordingly, it is HEREBY ORDERED that:

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1.

Defendants' motion to strike Plaintiff's partial motion for summary judgment, filed
on November 13, 2014 (Doc. 34) is GRANTED;

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2.

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Plaintiff's motion for partial summary judgment, filed on October 31, 2014 (Doc.
32), and is STRICKEN from the record in this action, without prejudice;

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3.

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Plaintiff is granted leave to file another motion for summary judgment prior to the

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dispositive motions deadline of March 23, 2015 (see Doc. 27) and if Plaintiff

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desires to do so, but is unable to timely comply, he should request an extension of

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time prior to that deadline, which will be liberally considered; and

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Plaintiff would do well to look to the motion for summary judgment that Defendants filed on December 19, 2014
(Doc. 37) for guidelines/formatting if he desires to file another motion for summary judgment.

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4.

Defendant's motion for an extension of time to file an opposition to Plaintiff's

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motion for partial summary judgment, filed November 13, 2014 (Doc. 35), is

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DISREGARDED as moot.

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IT IS SO ORDERED.
Dated:

December 31, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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