Howard v. Sunniland Corp. et al
Filing
60
ORDER accepting 59 Response in Opposition to Motion filed by Garry L. Howard; directing defendants to file a reply within 14 days of this Order. Signed by Judge John E. Steele on 8/31/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GARRY L. HOWARD,
Plaintiff,
v.
Case No:
SUNNILAND
ORTEGON,
CORP.
and
2:16-cv-321-FtM-99MRM
SCOTT
Defendants.
ORDER
This matter comes before the Court on review of the docket.
On August 11, 2017, the Court directed plaintiff to respond to the
pending Motion for Summary Judgment (Doc. #53) or it would be
treated as unopposed.
On August 21, 2017, plaintiff was granted
a brief extension of time until August 22, to file a response.
(Doc. #58.)
On August 29, 2017, a full week after this deadline,
plaintiff filed his Response in Opposition (Doc. #59).
Although the Court does not necessarily excuse the dilatory
filing, discounting the response would make the motion akin to a
request for default judgment.
If a party fails to properly respond
to a request for summary judgment, the Court may consider the facts
undisputed and “grant summary judgment if the motion and supporting
materials--including the facts considered undisputed--show that
the movant is entitled to it. . . .”
(emphasis added).
Fed. R. Civ. P. 56(e)
“Thus, summary judgment, even when unopposed,
can only be entered when “appropriate.”
United States v. One
Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363
F.3d 1099, 1101 (11th Cir. 2004); Dunlap v. Transamerica Occidental
Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988).
This entails
reviewing the merits by at least ensuring that the motion is
supported by evidentiary materials.
Id.
The Eleventh Circuit as a “strong policy” of determining cases
on the merits.
Gulf Coast Fans, Inc. v. Midwest Elecs. Importers,
Inc., 740 F.2d 1499, 1510 (11th Cir. 1984) (citations omitted).
The Court is guided by this preference:
Doubt should be resolved in favor of a
judicial decision on the merits of a case, and
a technical error or a slight mistake by
plaintiff’s
attorney
should
not
deprive
plaintiff of an opportunity to present the
true merits of his claims. The countervailing
factors are the defendants’ and society's
interests in the finality of judgments and the
avoidance of prejudice. [ ] The plaintiff
should not be punished for his attorney’s
mistake absent a clear record of delay,
willful contempt or contumacious conduct.
Blois v. Friday, 612 F.2d 938, 940 (5th Cir. 1980) 1 (per curiam).
The Court will accept the response as it presents a dispute of the
facts as presented by defendants, and proceed with a review on the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc) the Eleventh Circuit adopted as binding
precedent all the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
- 2 -
merits.
That
being
said,
the
Court
desires
a
reply
from
defendants.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Response in Opposition (Doc. #59) is accepted
and will be considered.
2. Defendants shall file a reply within FOURTEEN (14) DAYS of
this Order.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2017.
Copies:
Counsel of Record
- 3 -
31st
day
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