Davis v. Kalisher et al

Filing 26

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

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARLON O. DAVIS,
Plaintiff,

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Re: Dkt. Nos. 22 and 25
G. KALISHER, et al.,
Defendants.

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United States District Court
Northern District of California

ORDER

v.

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Case No. 15-cv-05997-SI

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Defendants have filed a request for a short extension of the deadline so that their motion

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for summary judgment filed on March 7, 2017, four days after the deadline, will be timely. Their

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request for an extension of the deadline is GRANTED. Docket No. 25. The motion for summary

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judgment is deemed to have been timely filed. The motion has a different procedural problem,

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however.

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The order of service stated that any motion for summary judgment “must be accompanied

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by a Rand notice.” Docket No. 10 at 4 (citing Rand v. Rowland, 154 F.3d 934, 939 (9th Cir.

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2012), and Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012)). Defendants’ motion for summary

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judgment was not accompanied by a proper Rand notice. Although a paragraph in the motion

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includes the information required by Rand (see Docket No. 22 at 6), that does not fully satisfy

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Rand because Rand also requires that the notice “be in a separate form that the plaintiff will

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recognize as given pursuant to the court’s requirement. It may not be provided within the

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summary judgment motion or in the papers ordinarily filed in support of the motion.” Rand, 154

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F.3d at 960 (emphasis added). Meticulous compliance with the Rand notice requirement is

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necessary. The failure to comply with the Rand and Woods notice requirement continues to be a

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quick route to reversal if a motion for summary judgment is granted. See, e.g., Nelson v. Peck,

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2016 WL 6892509 (9th Cir. Nov. 23, 2016) (provision of Rand notice at outset of case but not

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concurrently with the motion for summary judgment was reversible error).

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possibility of such a reversal, defendants’ motion for summary judgment (Docket No. 22) is

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DENIED for failure to provide the Rand notice in a separate document. The denial of the motion

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for summary judgment is without prejudice to defendants filing a new motion for summary

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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

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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 March 24, 2017. Plaintiff must file and serve his opposition to the new

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motion for summary judgment no later than April 21, 2017. Defendants must file and serve their

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United States District Court
Northern District of California

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reply (if any) no later than May 5, 2017.

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IT IS SO ORDERED.
Dated: March 9, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

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