Howell v. Tran et al

Filing 43

ORDER DENYING MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE 31 . (Illston, Susan) (Filed on 8/8/2017) (Additional attachment(s) added on 8/8/2017: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KAREEM J. HOWELL, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 15-cv-05377-SI v. C. TRAN, et al., Defendants. ORDER DENYING MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE Re: Dkt. No. 31 12 13 The order of service stated that, if defendants filed a motion for summary judgment, they 14 “must provide to plaintiff a new Rand notice regarding summary judgment procedures at the time they 15 file such a motion. See Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012).” Docket No. 13 at 6; see 16 Rand v. Rowland, 154 F.3d 934, 939 (9th Cir. 2012). Defendants’ motion for summary judgment 17 was not accompanied by a proper Rand notice. Although a paragraph in the motion (see Docket 18 No. 31 at 2) includes the information required by Rand, that does not fully satisfy Rand because 19 Rand also requires that the notice “be in a separate form that the plaintiff will recognize as given 20 pursuant to the court’s requirement. It may not be provided within the summary judgment motion 21 or in the papers ordinarily filed in support of the motion.” Rand, 154 F.3d at 960 (emphasis 22 added). Meticulous compliance with the Rand notice requirement is necessary. The failure to 23 comply with the Rand and Woods notice requirement continues to be a quick route to reversal if a 24 motion for summary judgment is granted. See, e.g., Nelson v. Peck, 2016 WL 6892509 (9th Cir. 25 Nov. 23, 2016) (provision of Rand notice at outset of case but not concurrently with the motion for 26 summary judgment was reversible error). To avoid the possibility of such a reversal, defendants’ 27 motion for summary judgment (Docket No. 31) is DENIED for failure to provide the Rand notice 28 in a separate document. The denial of the motion for summary judgment is without prejudice to 1 defendants filing a new motion for summary judgment that is accompanied by a Rand notice. 2 The court now sets the following briefing schedule for the new motion for summary 3 judgment: Defendants must file and serve a new motion for summary judgment with a Rand 4 notice no later than August 18, 2017. Plaintiff must file and serve his opposition to the new 5 motion for summary judgment no later than September 8, 2017. Defendants must file and serve 6 their reply (if any) no later than September 22, 2017. 7 The court notes that plaintiff has filed an opposition to the motion for summary judgment. 8 In ruling on the new motion for summary judgment, the court will consider those opposition 9 papers already filed by plaintiff, as well as any additional opposition materials plaintiff files by the 10 September 8, 2017 deadline. United States District Court Northern District of California 11 In order to avoid a similar problem in future motions for summary judgment in other pro 12 se prisoner cases, Defendants’ counsel is urged to share with other members of his office the fact 13 that his motion was denied for failure to meticulously comply with Rand notice requirements. 14 15 16 17 IT IS SO ORDERED. Dated: August 8, 2017 ______________________________________ SUSAN ILLSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2

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