Davis v. Kalisher et al

Filing 26

ORDER 22 25 . (Illston, Susan) (Filed on 3/9/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARLON O. DAVIS, Plaintiff, 8 Re: Dkt. Nos. 22 and 25 G. KALISHER, et al., Defendants. 11 United States District Court Northern District of California ORDER v. 9 10 Case No. 15-cv-05997-SI 12 13 Defendants have filed a request for a short extension of the deadline so that their motion 14 for summary judgment filed on March 7, 2017, four days after the deadline, will be timely. Their 15 request for an extension of the deadline is GRANTED. Docket No. 25. The motion for summary 16 judgment is deemed to have been timely filed. The motion has a different procedural problem, 17 however. 18 The order of service stated that any motion for summary judgment “must be accompanied 19 by a Rand notice.” Docket No. 10 at 4 (citing Rand v. Rowland, 154 F.3d 934, 939 (9th Cir. 20 2012), and Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012)). Defendants’ motion for summary 21 judgment was not accompanied by a proper Rand notice. Although a paragraph in the motion 22 includes the information required by Rand (see Docket No. 22 at 6), that does not fully satisfy 23 Rand because Rand also requires that the notice “be in a separate form that the plaintiff will 24 recognize as given pursuant to the court’s requirement. It may not be provided within the 25 summary judgment motion or in the papers ordinarily filed in support of the motion.” Rand, 154 26 F.3d at 960 (emphasis added). Meticulous compliance with the Rand notice requirement is 27 necessary. The failure to comply with the Rand and Woods notice requirement continues to be a 28 quick route to reversal if a motion for summary judgment is granted. See, e.g., Nelson v. Peck, 1 2016 WL 6892509 (9th Cir. Nov. 23, 2016) (provision of Rand notice at outset of case but not 2 concurrently with the motion for summary judgment was reversible error). 3 possibility of such a reversal, defendants’ motion for summary judgment (Docket No. 22) is 4 DENIED for failure to provide the Rand notice in a separate document. The denial of the motion 5 for summary judgment is without prejudice to defendants filing a new motion for summary 6 judgment that is accompanied by a Rand notice. To avoid the The court now sets the following briefing schedule for the new motion for summary 8 judgment: Defendants must file and serve a new motion for summary judgment with a Rand 9 notice no later than March 24, 2017. Plaintiff must file and serve his opposition to the new 10 motion for summary judgment no later than April 21, 2017. Defendants must file and serve their 11 United States District Court Northern District of California 7 reply (if any) no later than May 5, 2017. 12 13 14 15 IT IS SO ORDERED. Dated: March 9, 2017 ______________________________________ SUSAN ILLSTON United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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