Long v. City of San Francisco et al

Filing 27

NOTICE REGARDING SUMMARY JUDGMENT MOTIONS AND RULE 12(b)(6) DISMISSAL MOTIONS. Signed by Judge Joseph C. Spero on 11/19/12. (Attachments: # 1 Certificate/Proof of Service)(klh, COURT STAFF) (Filed on 11/19/2012)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ORZELL LONG, 8 9 Plaintiff(s), v. NOTICE REGARDING SUMMARY JUDGMENT MOTIONS AND RULE 12(b)(6) DISMISSAL MOTIONS CITY OF SAN FRANCISCO, ET AL., 11 For the Northern District of California United States District Court 10 No. 3:12-cv-01424 (JCS) Defendant(s). ___________________________________/ 12 13 Defendant in this case may file a motion for summary judgment under Rule 56 of the Federal 14 Rules of Civil Procedure or a motion for dismissal under Rule 12(b)(6) of the Federal Rules of Civil 15 Procedure. This notice is written to explain to the pro se plaintiff the process involved in each type 16 of motion. 17 A. 18 A motion for summary judgment provides a procedure for terminating an action without trial 19 if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as 20 a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of 21 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact 22 is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the party 23 opposing the motion for summary judgment. Id. 24 SUMMARY JUDGMENT The party filing the motion for summary judgment is called the “moving party.” The moving 25 party bears the initial burden of identifying those portions of the pleadings, discovery and affidavits 26 which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 27 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it 28 must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving 1 party. But on an issue for which the opposing party will have the burden of proof at trial, the 2 moving party need only point out that there is an absence of evidence to support the opposing 3 party’s case. Id. 4 Once the moving party meets its initial burden, the opposing party may not rest upon the 5 allegations or denials of unverified pleadings, but must file an opposition setting forth specific facts 6 showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). The facts relied upon must be 7 admissible under rules governing admission of evidence generally, and must be presented in items 8 such as: (1) declarations based on personal knowledge, accompanied by sworn or certified copies of 9 all documents referred to in the declaration1; id.; (2) discovery documents, such as answers to deposition questions, answers to interrogatories or answers to requests for admissions, that have 11 For the Northern District of California United States District Court 10 been properly authenticated by a declaration by someone with personal knowledge of the 12 documents’ accuracy, Fed. R. Civ. P. 56(c); (3) verified complaints that meet the requirements of 13 Rule 56(e) (that is, complaints containing factual assertions that are within the pleader’s personal 14 knowledge and are otherwise admissible evidence), see Schroeder v. McDonald, 55 F.3d 454,460 15 (9th Cir. 1995); Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996)). The evidence presented on 16 each claim must not only be admissible, but also must be sufficient for a jury to reasonably return a 17 verdict for the opposing party. Anderson, 477 U.S. at 249. If the opposing party fails to contradict 18 the moving party with declarations or other evidence, the moving party’s evidence may be taken as 19 the truth. 20 It is not the district court’s job to search the record for a genuine issue of triable fact. 21 Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The opposing party has the burden of 22 identifying with reasonable particularity the evidence that precludes summary judgment. Id. If the 23 opposing party fails to do so, the district court may properly dismiss the claims. Id. 24 25 If the moving party has met its burden of proof and the opposing party fails to set forth specific facts showing that there is a genuine issue for trial, then “the moving party is entitled to 26 27 28 1 A declaration is a statement of facts which are personally known to the person making the declaration. The facts in a declaration must be admissible in evidence, i.e., evidentiary facts and not conclusions or argument. The declaration must show affirmatively that the person making the declaration is competent to testify to the matters stated therein and contain no inadmissible hearsay or opinions. A declaration must be made under penalty of perjury, i.e., it must be signed at the end after the statement “I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on [date].” 2 1 judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. A successful motion for summary 2 judgment terminates the action without trial, and will result in a final judgment on the merits. 3 B. 4 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendant may file a DISMISSAL MOTION 5 motion to dismiss for failure of the pleading to state a claim upon which relief can be granted Such 6 motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all 7 parties shall be given reasonable opportunity to present all material made pertinent to such a motion 8 by Rule 56. 9 11 For the Northern District of California United States District Court 10 12 Dated: November 19, 2012 _______________________________ JOSEPH C. SPERO United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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