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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KAREEM J. HOWELL,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-05377-SI

v.
C. TRAN, et al.,
Defendants.

ORDER DENYING MOTION FOR
SUMMARY JUDGMENT WITHOUT
PREJUDICE
Re: Dkt. No. 31

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The order of service stated that, if defendants filed a motion for summary judgment, they

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“must provide to plaintiff a new Rand notice regarding summary judgment procedures at the time they

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file such a motion. See Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012).” Docket No. 13 at 6; see

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Rand v. Rowland, 154 F.3d 934, 939 (9th Cir. 2012). Defendants’ motion for summary judgment

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was not accompanied by a proper Rand notice. Although a paragraph in the motion (see Docket

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No. 31 at 2) includes the information required by Rand, that does not fully satisfy Rand because

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Rand also requires that the notice “be in a separate form that the plaintiff will recognize as given

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pursuant to the court’s requirement. It may not be provided within the summary judgment motion

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or in the papers ordinarily filed in support of the motion.” Rand, 154 F.3d at 960 (emphasis

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added). Meticulous compliance with the Rand notice requirement is necessary. The failure to

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comply with the Rand and Woods notice requirement continues to be a quick route to reversal if a

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motion for summary judgment is granted. See, e.g., Nelson v. Peck, 2016 WL 6892509 (9th Cir.

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Nov. 23, 2016) (provision of Rand notice at outset of case but not concurrently with the motion for

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summary judgment was reversible error). To avoid the possibility of such a reversal, defendants’

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motion for summary judgment (Docket No. 31) is DENIED for failure to provide the Rand notice

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in a separate document. The denial of the motion for summary judgment is without prejudice to

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defendants filing a new motion for summary judgment that is accompanied by a Rand notice.

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The court now sets the following briefing schedule for the new motion for summary

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judgment: Defendants must file and serve a new motion for summary judgment with a Rand

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notice no later than August 18, 2017. Plaintiff must file and serve his opposition to the new

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motion for summary judgment no later than September 8, 2017. Defendants must file and serve

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their reply (if any) no later than September 22, 2017.

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The court notes that plaintiff has filed an opposition to the motion for summary judgment.

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In ruling on the new motion for summary judgment, the court will consider those opposition

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papers already filed by plaintiff, as well as any additional opposition materials plaintiff files by the

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September 8, 2017 deadline.

United States District Court
Northern District of California

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In order to avoid a similar problem in future motions for summary judgment in other pro

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se prisoner cases, Defendants’ counsel is urged to share with other members of his office the fact

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that his motion was denied for failure to meticulously comply with Rand notice requirements.

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IT IS SO ORDERED.
Dated: August 8, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

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