Nagahi v. California Employment Development Department et al

Filing 149

ORDER Denying 131 Plaintiffs Motion to Strike Counsel's Declaration and Exhibits; Taking Defendants' Motion for Summary Judgment Under Submission; and Continuing Trial Setting Conference to 2:00 p.m. on June 15, 2010. Signed by Judge Patricia V. Trumbull on 5/28/10. (pvtlc1) (Filed on 5/28/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REZA NAGAHI, ) ) Plaintiff, ) ) v. ) ) CALIFORNIA EMPLOYMENT ) DEVELOPMENT DEPARTMENT, et al., ) ) Defendants. ) ___________________________________ ) Case No.: C 07-6268 PVT ORDER DENYING PLAINTIFF'S MOTION TO ST R I K E COUNSEL'S DECLARATION AND EX H I B IT S; TAKING DEFENDANTS' MOTION FO R SUMMARY JUDGMENT UNDER SU BM ISSIO N ; AND CONTINUING TRIAL SETTIN G CONFERENCE TO 2:00 P.M. ON JUNE 15, 2010 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

On March 9, 2010, Plaintiff filed motion to strike counsel's declaration and exhibits. Defendants have not filed any opposition to the motion. Having reviewed the papers submitted by the parties, the court finds it appropriate to issue this order without oral argument. Based on the moving papers and the file herein, and the court's unavailability on June 1, 2010, IT IS HEREBY ORDERED that Plaintiff's motion to strike is DENIED. Rule 901 of Federal Rules of Evidence provides, in relevant part: (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: **** OR D E R, page 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(7) Public records or reports. Evidence that * * * a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. The two documents attached to the Declaration of Counsel in Support of Defendants' Motion for Summary Judgment are both documents that are maintained in a public office of the State of California. The declarant, who is employed by the State of California, attests to the fact that the documents are from the public offices where such items are kept ­ the cancelled check is from the State Controller's Office, and the payment records are from the Employment Development Department. Thus, pursuant to Rule 901(a) & (b)(7), the documents have been adequately authenticated. IT IS FURTHER ORDERED that Defendants' motion for summary judgment is TAKEN UNDER SUBMISSION without oral argument. Although Plaintiff failed to timely file any opposition to the motion, summary judgment cannot be granted based solely on Plaintiff's failure to oppose the motion. See Martinez v. G.D. Stanford, 323 F.3d 1178, 1182-1183 (2003). The lack of an opposition does not excuse Defendants' affirmative duty under Rule 56 to demonstrate their entitlement to judgment as a matter of law. Id. at 1182. Thus, the court must still determine whether "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See FED.R.CIV.PRO. 56(c)(2). IT IS FURTHER ORDERED that the trial setting conference is CONTINUED to 2:00 p.m. on June 15, 2010. Dated: 5/28/10 PATRICIA V. TRUMBULL United States Magistrate Judge

OR D E R, page 2