Davis v. Hollins Law

Filing 53

STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 8/20/13 ORDERING Defendant is hereby DIRECTED to file a statement with the court indicating whether it wishes to continue the hearing on the cross-motions for summary judgment from Septe mber 9, 2013 to September 23, 2013 subject to the conditions set forth above. The statement must be filed no later than 4:30 p.m. on Wednesday, August 21, 2013. In the absence of such a statement, the court will assume that defendant no longer has any objection to the existing hearing date, and the matter will be heard on September 9 as scheduled. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL DAVIS,

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Plaintiff,
NO. CIV. S-12-3107 LKK/GGH

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v.
HOLLINS LAW, A PROFESSIONAL
CORPORATION,

O R D E R

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Defendant.
/

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Pending before the court in the above-captioned case is a

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motion

for

summary

judgment

filed

by

defendant

Hollins

Law,

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originally set for hearing on August 26, 2013. (ECF No. 35.) By

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Order dated August 7, 2013, the court continued the hearing until

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September 9, 2013. (ECF No. 42.) The Order specified that the dates

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for filing an opposition (August 12, 2013) and a reply (August 19,

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2013) remained unchanged.

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On August 12, 2013, plaintiff Michael Davis filed both an

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opposition to defendant’s motion for summary judgment and a cross-

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motion for summary judgment. (ECF No. 43.) This would ordinarily

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have been proper under Local Rule 230(e) (“Any counter-motion . . .
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that is related to the general subject matter of the original

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motion shall be served and filed in the manner and on the date

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prescribed for the filing of opposition.”) However, as defendant

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points out in its reply and its opposition to the cross-motion, the

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scheduling order herein sets a strict deadline of September 5, 2013

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for the completion of law and motion.

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The court is of the view that, while plaintiff should have

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filed a motion for a continuance in order to set the cross-motion

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for hearing after September 5, some confusion may have been

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engendered by the language of the Local Rule, coupled with the

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court’s sua sponte continuance of the original hearing date.

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Moreover, it appears that issues raised by plaintiff’s cross-motion

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are potentially “susceptible to resolution without trial,” and

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therefore merit consideration at this stage of the proceedings.

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(Scheduling Order 3:17, ECF No. 24.) Accordingly, the court is of

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the view that plaintiff’s cross-motion should be heard along with

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defendant’s motion.

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Nevertheless, given the defendant’s view that its due process

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rights have been violated by an untimely filing, the court is

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willing to continue the hearing on both motions until September 23,

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2013 at 10:00 a.m., and allow defendant to file an amended

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opposition to plaintiff’s cross-motion in lieu of the already-filed

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opposition. If defendant chooses to exercise this option, its

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amended

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plaintiff’s reply, if any, would be due on September 16, 2013.

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(Neither party will be permitted to amend its pleadings with

opposition

would

be

due

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on

September

9,

2013,

and

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respect to the original motion for summary judgment.)

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Defendant is hereby DIRECTED to file a statement with the

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court indicating whether it wishes to continue the hearing on the

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cross-motions for summary judgment from September 9, 2013 to

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September 23, 2013 subject to the conditions set forth above. The

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statement must be filed no later than 4:30 p.m. on Wednesday,

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August 21, 2013. In the absence of such a statement, the court will

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assume that defendant no longer has any objection to the existing

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hearing date, and the matter will be heard on September 9 as

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scheduled.

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IT IS SO ORDERED.

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DATED:

August 20, 2013.

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