Davis v. Wells Fargo Bank, National Association, Trustee, As Trustee for Series HBV 2007-3 et al

Filing 118

ORDER. Signed by Judge Hamilton on 9/1/2011. (pjhlc1, COURT STAFF) (Filed on 9/1/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESTELL DAVIS,
Plaintiff,

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ORDER

WELLS FARGO BANK, NATIONAL
ASSOCIATION, et al.,

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For the Northern District of California

United States District Court

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v.

No. C 10-0489 PJH

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Defendants.
_______________________________/

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Plaintiff Estell Davis filed this action on February 3, 2010. Following considerable
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motion practice, the court held the initial case management conference, at which the
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dispositive motions hearing date was set for August 30, 2011, the pretrial conference was
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set for November 10, 2011, and the trial date was set for December 5, 2011. Further
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motion practice ensued, as well as mediation.
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On July 15, 2011, the court signed a stipulation and proposed order setting a
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dispositive motions hearing date of August 24, 2011. On July 20, 2011, defendants filed a
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motion for summary judgment, set for hearing on August 24, 2011. The parties agreed that
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the opposition would be due on August 3, 2011, and that the reply would be due on August
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24, 2011. On July 27, 2011, the parties submitted a stipulation in which they agreed that
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the hearing date for the motion for summary judgment would be September 7, 2011. On
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July 31, 2011, the parties submitted yet another stipulation, in which they agreed that the
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plaintiff’s opposition brief would be due on August 17, 2011, and that the defendants’ reply
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brief would be due on August 24, 2011.
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On August 16, 2011, plaintiff filed an opposition to defendants’ motion, and a
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“counter-motion” for summary judgment, which she claims she is “entitled” to bring, in

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addition to filing her opposition to defendants’ motion, based on a statement in a practice

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treatise. See Schwarzer, Tashima and Wagstaffe, Federal Civil Procedure Before Trial

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(2011 ed.) § 14:118. On August 24, 2011, defendants filed their reply brief, and also filed a

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response to plaintiff’s “counter-motion,” arguing that the motion is untimely and fails to

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provide defendants with sufficient notice.

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While it is true that the court frequently rules on cross-motions for summary

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judgment, where there is a pending deadline for hearing dispositive motions that has been

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set by the court, such cross-motions are usually filed simultaneously. Where a party files a

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cross-motion for summary judgment in conjunction with an opposition to a motion filed by
the opposing side, the opposing side requires sufficient time to oppose the motion, and,

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For the Northern District of California

United States District Court

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more importantly, the court requires sufficient time to consider both motions (a fact of which

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the parties seem oblivious).

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In addition, in this case, the pretrial conference is set for November 10, 2011, which

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means that the parties are required to meet and confer regarding the preparation of the

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pretrial statement no later than October 6, 2011, and the pretrial papers are required to be

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submitted no later than October 10, 2011. Thus, if the court continues the hearing date,

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which it evidently must do if it is to allow defendants sufficient time to oppose the motion,

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and is to allow itself sufficient time to read and consider both motions, it will be left with very

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little time to issue an order on the parties’ cross-motions.

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Also on August 16, 2011, plaintiff filed a motion to “strike” the Declaration of Peter

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Knapp, filed on July 20, 2011, in support of defendants’ motion for summary judgment.

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Plaintiff also moves to “strike” any evidence that defendants might submit in support of their

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reply brief (which has not yet been filed as of the date of plaintiff’s motion). Defendants

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filed an opposition to the motion on August 24, 2011, at which time they also filed separate

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“Objections” to the Declaration of Dr. Wacht in opposition to defendants’ motion for

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summary judgment.

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Plaintiff’s motion to “strike” is DENIED, and defendants’ objections are
OVERRULED. Under Civil Local Rule 7-3, “[a]ny evidentiary and procedural objections to
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[a] motion must be contained within the brief or memorandum [in opposition],” and “[a]ny

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evidentiary and procedural objections to the opposition must be contained within the reply

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brief or memorandum.” Civ. L.R. 7-3(a), (c).

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The date for the hearing on the parties’ cross-motions, previously set for September
14, 2011, is CONTINUED to September 21, 2011.

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IT IS SO ORDERED.

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Dated: September 1, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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