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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM M. ENDRES,

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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

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For the Northern District of California

United States District Court

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

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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.
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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.
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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.
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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.
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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.
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23 IT IS SO ORDERED.
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25 Dated: 01/27/12
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THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT

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