McClelland v. Permanente Medical Group

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/10/12 ORDERING that the hearing on Defendant's MOTION FOR SUMMARY JUDGMENT 18 is CONTINUED to 9/5/2012 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. On or b efore 8/15/2012, Plaintiff shall file a revised response to defendant's statement of undisputed facts. Also on or before 8/15/12, Plaintiff shall file a revised opposition to the Motion for Summary Judgment. On or before 8/22/2012, Defendant may file a reply to Plaintiff's revised opposition. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELIZABETH McCLELLAND,

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Plaintiff,

No. 2:11-cv-1224-LKK-EFB PS

vs.
PERMANENTE MEDICAL GROUP,

ORDER

Defendant.
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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 June 15, 2012, defendant filed a motion for summary

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judgment, or in the alternative, a motion for partial summary judgment. Dckt. No. 18. The

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motion is noticed for hearing before the undersigned on July 17, 2012. Dckt. No. 19.

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On July 5, 2012, plaintiff filed an opposition to the motion and a response to defendant’s

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statement of undisputed facts. Dckt. No. 20. However, plaintiff’s handwritten response to

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defendant’s statement of undisputed facts is difficult for the court to discern and it does not

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clearly state whether each fact is disputed or undisputed, as required by Local Rule 260(b). E.D.

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Cal. L.R. 260(b) (“Any party opposing a motion for summary judgment or summary adjudication

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shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts

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that are undisputed and deny those that are disputed, including with each denial a citation to the
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particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or

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other document relied upon in support of that denial.”). Additionally, although plaintiff cites to

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numerous documents throughout her opposition, she has not filed a copy of those documents or

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cited them as exhibits, as required by Local Rule 260(b). Id. (“The opposing party shall be

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responsible for the filing of all evidentiary documents cited in the opposing papers.”).

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Therefore, the hearing on defendant’s motion for summary judgment will be continued,

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and plaintiff will be ordered to file a revised response to defendant’s statement of undisputed

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facts. The revised response shall be typed or handwritten in a clear manner, shall specifically

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state whether each fact is disputed or undisputed, and shall include with each denial a citation to

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the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or

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other document relied upon in support of that denial. Plaintiff will also be ordered to file a

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revised opposition to the motion which references plaintiff’s supporting evidence as numbered

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exhibits and to file a copy of those numbered exhibits along with the opposition. A failure to

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comply with this order may result in a recommendation that defendant’s motion for summary

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judgment be granted and/or that this action be dismissed for failure to prosecute and for failure to

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comply with court orders and this court’s Local Rules. See Fed. R. Civ. P. 41(b).

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The court informs plaintiff of the following with respect to opposing a motion for

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

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judgment in defendant’s favor without trial. A motion for summary judgment will set forth the

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facts that defendant asserts are not reasonably subject to dispute and that entitle them to

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judgment under applicable law. To oppose a motion for summary judgment, plaintiff must show

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proof of her claims. To do this, she may rely upon statements made in the complaint under

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penalty of perjury if the complaint shows that plaintiff has personal knowledge of the matters

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stated and plaintiff specifies the parts of the complaint upon which she relies. Plaintiff also may

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file one or more affidavits or declarations setting forth the facts that plaintiff believes prove her

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claims, as long as the person who signs it has personal knowledge of the facts stated. Plaintiff
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may rely on written records, but she must prove they are what she asserts them to be. Plaintiff

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may rely on all or any part of responses to discovery propounded in this case, i.e, answers to

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interrogatories, admissions and deposition transcripts. If plaintiff fails to contradict defendant’s

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evidence with counter-affidavits or other admissible evidence, the court may accept defendant’s

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evidence as true and grant the motion. If there is good reason why such facts are not available to

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plaintiff when she is required to oppose a motion for summary judgment, the court will consider

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a request to postpone considering the motion. If plaintiff does not file a written opposition to the

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motion or a request to postpone consideration of it, the court may consider the failure to act as a

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waiver of opposition to the defendant’s motion. If the court grants defendant’s motion, whether

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opposed or unopposed, judgment will be entered for defendant without a trial and the case will

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be closed.

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

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1. The hearing on defendant’s motion for summary judgment, Dckt. No. 18, is continued

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to September 5, 2012 at 10:00 a.m. in Courtroom No. 24.

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2. On or before August 15, 2012, plaintiff shall file a revised response to defendant’s

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statement of undisputed facts. The revised response shall be typed or handwritten in a clear and

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legible manner, shall specifically state whether each fact is disputed or undisputed, and shall

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include 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.

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3. Also on or before August 15, 2012, plaintiff shall file a revised opposition to the

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motion for summary judgment. The revised opposition shall reference plaintiff’s supporting

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evidence as numbered exhibits and shall include a copy of those numbered exhibits.

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4. Failure of plaintiff 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 this action be dismissed for failure to prosecute and for failure to comply with court

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orders and this court’s Local Rules.

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5. On or before August 22, 2012, defendant may file a reply to plaintiff’s revised
opposition.
SO ORDERED.
DATED: July 10, 2012.

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