Leonard v. Denny, et al

Filing 162

ORDER signed by Magistrate Judge Allison Claire on 08-22/18 ORDERING plaintiffs motion to strike or deny the defendants motion for summary judgment 158 is GRANTED in part and defendants motion for summary judgment 141 is stricken without prejudice to refilling. The February 1, 2018 dispositive motion deadline is vacated and re-set to August 30, 2018. Defendants shall have until August 30, 2018 to re-serve and re-file their motion for summary judgment. The motion must be accompanied by a Rand Notice and the Notice must bein a document separate from the motion. Failure to contemporaneously serve plaintiff with a Rand Notice will result in sanctions. Plaintiffs motion for an extension of time 160 is DENIED as moot. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID G. LEONARD,

12
13
14
15

No. 2:12-cv-0915 TLN AC P

Plaintiff,
v.

ORDER

JIM DENNY, et al.,
Defendants.

16
17

Plaintiff is a current state and former county prisoner, proceeding pro se with a civil rights

18

action pursuant to 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act, 42 U.S.C.

19

§§ 12131-12134; Section 504 of the Rehabilitation Act of 1973; and state tort law.

20

Plaintiff moves the court to strike or deny defendants’ motion for summary judgment on

21

the grounds that it was defectively filed and was not accompanied by the notice required by Rand

22

v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). ECF No. 158. Specifically, he argues that

23

defendants failed to properly file the motion for summary judgment because it was not

24

accompanied by a certificate of service, and when the certificate of service was filed a week later,

25

it reflected that the motion had been served on plaintiff the day after the filing deadline. Id. at 2-

26

4. Plaintiff further argues that the motion for summary judgment was defective because it was

27

not accompanied by a Rand Notice, as required by court order. Id. at 4-7. Defendants oppose the

28

motion, arguing that plaintiff was not prejudiced by the oversights and that sanctions are
1

1
2

inappropriate.
Both the Federal and Local Rules require that a certificate of service be attached to a

3

motion when it is filed. Fed. R. Civ. P. 5(d)(1); L.R. 135(c). This means that service must occur

4

prior to or at the same time as filing, which is evidenced by Rule 5, which states that filing must

5

occur “within a reasonable time after service,” not that service may occur after filing. Fed. R.

6

Civ. P. 5(d)(1).

7

Defendants’ motion for summary judgment and the accompanying exhibits were filed on

8

February 1, 2018. ECF Nos. 141, 142. However, a certificate of service was not filed until

9

nearly a week later on February 7, 2018, and the certificate showed that the motion and exhibits

10

had been served on February 2, 2018. ECF No. 143. Dispositive motions were to be filed by

11

February 1, 2018. ECF No. 134. It appears that in order to meet the filing deadline set by the

12

court, defendants’ counsel did not serve the motion prior to or contemporaneously with filing so

13

that the motion could be filed with a certificate of service as required. Then, due to an oversight,

14

counsel failed to file the certificate of service until nearly a week later. Counsel also failed to

15

serve plaintiff with a Rand Notice until February 8, 2018 (ECF No. 144), even though defendants

16

were ordered to contemporaneously serve a Rand Notice with any motion for summary judgment

17

or face potential denial of their motion (ECF No. 17 at 5, ¶ 13).

18

Plaintiff is correct that defendants’ filing of the motion for summary judgment was not in

19

technical compliance with the Federal Rules of Civil Procedure and Local Rules, because service

20

did not occur until after filing and the certificate of service was not attached to the motion when it

21

was filed. He is also correct that defendants failed to comply with the court’s order when they

22

served the Rand Notice a week after serving the motion for summary judgment. Although

23

defendants corrected their oversight relatively promptly (ECF No. 144), plaintiff asserts that he

24

did not receive the notice sent by defendants and did not obtain a copy until July 15, 2018, after it

25

was sent to him by a third party (ECF No. 160 at 2, ¶ 11).

26

Defendants’ failure to strictly comply with the rules regarding certificates of service is a

27

minor violation that alone would warrant, at most, a warning about diligence. However, the

28

Ninth Circuit has stressed the importance of pro se prisoners receiving a Rand Notice at the same
2

1

time as the motion for summary judgment, and failure to provide contemporaneous notice is

2

grounds for reversal. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012). The undersigned is

3

committed to enforcement of the Rand Notice requirement in all cases, and will not entertain a

4

motion for summary judgment against a pro se prisoner unless a Rand Notice was

5

contemporaneously served. This policy is intended to ensure consistent compliance with Rand

6

obligations by § 1983 defendants, and therefore will be applied strictly and regardless of actual

7

prejudice to plaintiff.

8
9

Accordingly, the court will follow its general policy here even though plaintiff has not yet
responded to the motion. Although defense counsel cannot be faulted for the apparent loss of

10

their notice in the mail, this situation would not have arisen had the notice been properly served

11

with the motion. Given the excessive delay between plaintiff’s receipt of the summary judgment

12

motion and the notice, the court will grant plaintiff’s request and strike the motion for summary

13

judgement. However, this order will be without prejudice to a properly filed motion that is

14

accompanied by a Rand Notice, and the dispositive motion deadline will be extended for that

15

purpose.

16

The court notes that this is not counsel’s first failure to properly carry out their

17

obligations, and while these oversights do not appear to be willful, counsel’s carelessness has led

18

to additional work for the already overburdened court. See ECF No. 75 at 2-3 (addressing

19

counsel’s failure to serve plaintiff at the correct address and failure to notify the court of the

20

mistake); ECF No. 121 (addressing counsel’s failure to notify the court of the completion of

21

discovery discussions); ECF No. 157 at 1 n.1 (noting that counsel failed to file the stipulated

22

protective order after advising plaintiff he had done so). The Eastern District of California

23

maintains one of the heaviest caseloads in the nation and it does not have the time or resources,

24

nor is it the court’s responsibility, to continually remind counsel of their responsibilities and

25

deadlines. Counsel is warned that any further failures to comply with the rules and orders of this

26

court will likely result in monetary sanctions.

27
28

Since defendants’ motion for summary judgment is being stricken, plaintiff’s motion for
an extension of time to respond to the motion will be denied as moot.
3

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s motion to strike or deny the defendants’ motion for summary judgment

3

(ECF No. 158) is GRANTED in part and defendants’ motion for summary judgment (ECF No.

4

141) is stricken without prejudice to refiling.

5

2. The February 1, 2018 dispositive motion deadline is vacated and re-set to August 30,

6

2018. Defendants shall have until August 30, 2018 to re-serve and re-file their motion for

7

summary judgment. The motion must be accompanied by a Rand Notice and the Notice must be

8

in a document separate from the motion. Failure to contemporaneously serve plaintiff with a

9

Rand Notice will result in sanctions.

10
11

3. Plaintiff’s motion for an extension of time (ECF No. 160) is DENIED as moot.
DATED: August 22, 2018

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4