PNC Bank v. Smith et al

Filing 46

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/28/2012 ORDERING that defendant Winding's 44 motion for an extension of time is GRANTED. Defendant Winding's 44 request for sanctions is DENIED. The hearing on plaintiff's [39 ] motion for summary judgment is CONTINUED to 11/7/2012. Plaintiff's 43 request to appear at the 9/5/2012 hearing telephonically is DENIED AS MOOT. Within fourteen days of the date of this order, plaintiff's counsel shall re-serve defend ant Winding with a copy of the summary judgment motion and shall file a proof of such service. Defendants shall file an opposition to the motion, or a statement of non-opposition thereto, and a response to plaintiff's statement of undisputed fac ts, no later than 10/17/2012. Failure of defendants to comply with this order may be deemed a statement of non-opposition to the motion, and may result in a recommendation that the motion be granted and/or that defendants' answers be stricken and their default be entered due to their failure to comply with court orders and this court's Local Rules. Plaintiff may file a reply to defendants' opposition(s), if any, on or before 10/24/2012. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PNC BANK, N.A., a National Association,
as successor in interest to National City Bank,

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Plaintiff,

No. 2:10-cv-1916-JAM-EFB

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vs.
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BELINDA L. SMITH, in personam; JACOB
WINDING, in personam; B & B DREAMIN',
Hull No. GMKD283C505 (the “Vessel”),
its engines, machinery, appurtenances, etc., in rem;
ORDER
Defendants.

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This case is before the undersigned pursuant to Eastern District of California Local Rule

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302(c)(21). See 28 U.S.C. § 636(b)(1). On July 31, 2012, plaintiff filed a motion for summary

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judgment and noticed the motion for hearing before the undersigned on September 5, 2012.

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Dckt. No. 39.

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Then, on August 22, 2012, defendant Jacob Winding filed an affidavit from Gloria

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Rosario in support of Winding’s motion for a continuance and sanctions.1 Dckt. No. 42. Rosario

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states that she collects Winding’s mail and delivers it to him and that she has not seen any mail

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Defendant Belinda Smith has not filed any response to the motion for summary
judgment.
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sent to Winding from plaintiff’s lawyers. Id. The implication of the affidavit is that Winding did

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not receive a copy of the motion for summary judgment.

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On August 24, 2012, Winding filed the motion for a continuance and sanctions that was

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referenced in Rosario’s affidavit. Dckt. No. 44. Winding requests a continuance of 60 days and

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an award of $3006.25 because Winding contends he has “not received any documentation (called

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‘Interrogator[ies] and/or Summary Judgment’) from Plaintiff . . . or their attorneys of record,”

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even though his address of record is correct. Id. at 1, 3. Winding also filed a declaration under

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penalty of perjury in which he reiterates that he has not received any mail from plaintiff or

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plaintiff’s counsel. Id. at 6-7.

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In light of Winding and Rosario’s representations, Winding’s request for a continuance

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will be granted, and the hearing on plaintiff’s motion for summary judgment will be continued.

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Plaintiff’s counsel will also be directed to re-serve Winding with a copy of the motion.

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However, because Winding has not shown that sanctions are warranted, Winding’s request for

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sanctions will be denied.

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Additionally, the court informs defendants of the following with respect to opposing a

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motion for summary judgment under Fed. R. Civ. P. 56: Such a motion is a request that the

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court grant judgment in plaintiff’s favor without trial. A motion for summary judgment will set

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forth the facts that plaintiff asserts are not reasonably subject to dispute and that entitle plaintiff

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to judgment under applicable law. To oppose the motion for summary judgment, defendants

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must show that there are genuine issues of material fact regarding plaintiff’s claims such that

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plaintiff is not entitled to judgment as a matter of law. To do this, defendants may cite to

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particular materials in the record that show such dispute, show that plaintiff’s materials fail to

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establish absence of a genuine dispute, show that plaintiff cannot produce admissible evidence to

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support its factual position, or object to plaintiff’s materials on the ground that they cannot be

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presented in a form that would be admissible in evidence. Defendants may file one or more

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affidavits or declarations setting forth facts, as long as the person who signs it has personal
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knowledge of the facts stated. Defendants may rely on written records, but they must prove the

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documents are what defendants assert them to be. Defendants may rely on all or any part of

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responses to discovery propounded in this case, i.e, answers to interrogatories, admissions and

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deposition transcripts. If there is good reason why facts needed to oppose the motion are not

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available to defendants, the court may consider a request to postpone considering the motion. If

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defendants do not file a written opposition to the motion or a request to postpone consideration

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of it, the court may consider the failure to act as a waiver of opposition to the motion. If the

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court grants the motion, whether opposed or unopposed, judgment will be entered for plaintiff

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without a trial and the case will be closed.

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Further, Local Rule 260(b) provides that “[a]ny party opposing a motion for summary

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judgment or summary adjudication shall reproduce the itemized facts in the Statement of

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Undisputed Facts and admit those facts that are undisputed and deny those that are disputed,

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including with each denial a citation to the particular portions of any pleading, affidavit,

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deposition, interrogatory answer, admission, or other document relied upon in support of that

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denial.” Local Rule 260(b) further provides that “[t]he opposing party may also file a concise

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‘Statement of Disputed Facts,’ and the source thereof in the record, of all additional material

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facts as to which there is a genuine issue precluding summary judgment or adjudication,” and

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that “[t]he opposing party shall be responsible for the filing of all evidentiary documents cited in

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the opposing papers.”

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Accordingly, good cause appearing, IT IS HEREBY ORDERED that:

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1. Defendant Winding’s motion for an extension of time, Dckt. No. 44, is granted.

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2. Defendant Winding’s request for sanctions, Dckt. No. 44, is denied.

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3. The hearing on plaintiff’s motion for summary judgment, Dckt. No. 39, is continued

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to November 7, 2012.
4. Plaintiff’s request to appear at the September 5, 2012 hearing telephonically, Dckt.
No. 43, is denied as moot.
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5. Within fourteen days of the date of this order, plaintiff’s counsel shall re-serve

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defendant Winding with a copy of the summary judgment motion and shall file a proof of such

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service.

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6. Defendants shall file an opposition to the motion, or a statement of non-opposition

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thereto, and a response to plaintiff’s statement of undisputed facts, no later than October 17,

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2012.

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7. Failure of defendants to comply with this order may be deemed a statement of

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non-opposition to the motion, and may result in a recommendation that the motion be granted

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and/or that defendants’ answers be stricken and their default be entered due to their failure to

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comply with court orders and this court’s Local Rules.

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8. Plaintiff may file a reply to defendants’ opposition(s), if any, on or before October 24,
2012.
SO ORDERED.
DATED: August 28, 2012.

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