Endres v. California Department of Corrections & Rehabilitation et al

Filing 48

ORDER by Judge Thelton E. Henderson denying 38 Motion for Summary Judgment without prejudice; ORDER vacating trial and pretrial dates; and ORDER TO SHOW CAUSE. 41 Order and writ of habeas corpus ad testificandum is VACATED. Case Management St atement and Show Cause Response due by 2/2/2012 at 12:00 noon. Case Management Conference and Order to Show Cause Hearing set for 2/6/2012 at 10:00 AM in Courtroom 2, 17th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 01/27/12. (tehlc3, COURT STAFF) (Filed on 1/27/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 WILLIAM M. ENDRES, 6 7 8 9 Plaintiff, v. ELENA TOOTELL, Defendant. NO. C10-3924 TEH ORDER DENYING MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE; ORDER VACATING TRIAL AND PRETRIAL DATES; and ORDER TO SHOW CAUSE 11 For the Northern District of California United States District Court 10 This matter comes before the Court on Defendant Elena Tootell’s motion for summary 12 judgment. Plaintiff William Endres filed a timely opposition on January 12, 2012, but 13 Tootell’s reply was not filed until January 25 – six days after the January 19 deadline. 14 Moreover, Tootell’s counsel, Kay K. Yu, filed a declaration stating that she was unaware of 15 the change in the Civil Local Rules governing the deadline for filing oppositions and replies, 16 but she miscalculated the date even under the old rule. Yu contended that the reply would 17 have been due on January 20, when it actually would have been due on January 23. 18 Nonetheless, Yu did not file the reply until January 25, which would have been late in any 19 event. In addition, when Yu filed the motion, the Court’s electronic filing system generated 20 the correct reply deadline of January 19, as reflected in the entry for ECF Docket No. 38. 21 More substantively, Tootell’s reply failed to respond to two evidentiary issues raised 22 in Endres’s opposition: first, that none of the evidence submitted with the motion was 23 admissible because it was supported only by a declaration of counsel and was therefore not 24 properly authenticated; and, second, that the motion should be denied or continued because 25 Endres has been unable to depose Tootell. The Court agrees with Endres that it would be 26 unfair and improper to grant summary judgment before he has had an opportunity to depose 27 Tootell. Tootell’s reply makes this evident: She argues that Endres cannot “point to any 28 facts that show Dr. Tootell knew of should have known about the delay in [his] surgery,” 1 Reply 2, but it is, of course, possible that such evidence could be revealed during Tootell’s 2 deposition. 3 Accordingly, with good cause appearing, IT IS HEREBY ORDERED that: 4 1. Tootell’s motion for summary judgment is DENIED without prejudice. Tootell 5 may file a new motion for summary judgment after her deposition has been taken. 6 2. The trial and all related pretrial dates are VACATED. The January 10, 2012 Order 7 and Writ of Habeas Corpus Ad Testificandum is also VACATED. 8 3. The parties shall meet and confer and jointly propose: a deadline by which 9 Tootell’s deposition will be taken; a date for the mandatory settlement conference (after 11 will calculate pretrial dates, including the last day for hearing a motion for summary For the Northern District of California United States District Court 10 checking availability with the assigned magistrate judge); and a new trial date. The Court 12 judgment, based on the new trial date. 13 4. The parties shall file a joint case management conference statement proposing the 14 above dates, and discussing any other relevant matters, before February 2, 2012, at 12:00 15 noon. The parties shall appear for a case management conference on February 6, 2012, at 16 10:00 AM, in Courtroom No. 2, 450 Golden Gate Avenue, San Francisco, California. 17 5. Also on February 6, 2012, at 10:00 AM, Tootell’s counsel shall show cause as to 18 why sanctions should not be imposed against her for her failure to file a timely reply brief 19 and her failure to make her client available for deposition before the December 12, 2011 20 discovery cut-off date. Any written response to this order to show cause shall be filed before 21 February 2, 2012, at 12:00 noon. 22 23 IT IS SO ORDERED. 24 25 Dated: 01/27/12 26 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT 27 28 2

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