United States Of America v. Andre

Filing 69

ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND VACATING HEARING by Hon. William Alsup denying 56 Motion for Summary Judgment.(whalc1, COURT STAFF) (Filed on 1/11/2013)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 UNITED STATES OF AMERICA, 11 For the Northern District of California United States District Court 10 12 13 14 15 16 No. C 11-04175 WHA Plaintiff, v. ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND VACATING HEARING STEVE ANDRE, Defendant. / In this action to recover on two defaulted student loans, the United States moves for 17 summary judgment. Defendant Steve Andre, a licensed attorney proceeding pro se, opposes. 18 For the reasons explained below, the motion is DENIED. The January 17 hearing is VACATED. 19 Denial of instant motion requires little analysis. Summary judgment is proper when the 20 pleadings and the evidence in the record “show that there is no genuine issue as to any material 21 fact and that the moving party is entitled to judgment as a matter of law.” FRCP 56(c). An issue 22 is genuine only if there is sufficient evidence for a reasonable fact-finder to find for the 23 non-moving party, and material only if the fact may affect the outcome of the case. Anderson v. 24 Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). 25 Here, defendant disputes the authenticity of the promissory notes that undergird 26 plaintiff’s two claims for relief. Defendant states in a sworn declaration “under penalty of 27 perjury” that he “has no recollection” of loans asserted by plaintiff and denies that the signatures 28 on the promissory notes match his own (Dkt. No. 64 ¶ 3). Defendant further declares that the 1 student “loan or loans” that he took out as an undergraduate were from a different year than the 2 promissory notes asserted by plaintiff (see id. ¶ 2). 3 Plaintiff does not address these contentions in its reply. Plaintiff does not appear to have 4 taken the defendant’s deposition yet, and plaintiff does not otherwise establish that defendant has 5 filed a sham or perjurious declaration. On the present record, this order holds that defendant has 6 raised a genuine issue of material fact as to whether the promissory notes are authentic. 7 Accordingly, summary judgment is DENIED. The January 17 hearing is VACATED. 8 9 * * * Defendant, without explanation, filed his opposition to plaintiff’s motion more than a week late. Although defendant is proceeding pro se, he is a licensed attorney who should have 11 For the Northern District of California United States District Court 10 known better. Plaintiff requests that the late filing be disregarded. Doing so this first time 12 would operate as a default on the merits, and this order finds that such a harsh sanction is not 13 warranted. Defendant is admonished, however, to strictly adhere to all applicable deadlines and 14 rules in the future on pain of default or other appropriate sanction. 15 16 IT IS SO ORDERED. 17 18 Dated: January 10, 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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