Henson v. Department of Health and Human Services et al
Filing
109
ORDER providing pro se plaintiff Henson notice re 89 MOTION for Summary Judgment filed by Food & Drug Administration, Department of Health and Human Services. In light of this notice, the Court ALLOWS plaintiff up to and including January 24, 2017, to respond to the pending motion for summary judgment with any additional materials he feels are relevant and necessary to the dispute. Signed by Judge David R. Herndon on 1/10/17. (Attachments: # 1 Exhibit Rule 56)(lmp)
Rule 56. Summary Judgment
(a) Motion for Summary Judgment or Partial
Summary Judgment. A party may move for
summary judgment, identifying each claim or
defense — or the part of each claim or defense —
on which summary judgment is sought. The court
shall grant summary judgment if the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to
judgment as a matter of law. The court should
state on the record the reasons for granting or
denying the motion.
(b) Time to File a Motion. Unless a different time is
set by local rule or the court orders otherwise, a
party may file a motion for summary judgment at
any time until 30 days after the close of all
discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party
asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents,
electronically stored information,
affidavits or declarations, stipulations
(including those made for purposes of the
motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a
genuine dispute, or that an adverse party
cannot produce admissible evidence to
support the fact.
(2) Objection That a Fact Is Not Supported by
Admissible Evidence. A party may object
that the material cited to support or dispute a
fact cannot be presented in a form that would
be admissible in evidence.
(3) Materials Not Cited. The court need consider
only the cited materials, but it may consider
other materials in the record.
(4) Affidavits or Declarations. An affidavit or
declaration used to support or oppose a
motion must be made on personal knowledge,
set out facts that would be admissible in
evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.
(d) When Facts Are Unavailable to the
Nonmovant. If a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations
or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact.
If a party fails to properly support an assertion of
fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the
court may:
(1) give an opportunity to properly support or
address the fact;
(2) consider the fact undisputed for purposes of
the motion;
(3) grant summary judgment if the motion and
supporting materials - including the facts
considered undisputed - show that the movant
is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After
giving notice and a reasonable time to respond, the
court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a
party; or
(3) consider summary judgment on its own after
identifying for the parties material facts that
may not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the
court does not grant all the relief requested by the
motion, it may enter an order stating any material
fact — including an item of damages or other
relief — that is not genuinely in dispute and
treating the fact as established in the case.
(h) Affidavit or Declaration Submitted in Bad
Faith. If satisfied that an affidavit or declaration
under this rule is submitted in bad faith or solely
for delay, the court — after notice and a
reasonable time to respond — may order the
submitting party to pay the other party the
reasonable expenses, including attorney’s fees, it
incurred as a result. An offending party or
attorney may also be held in contempt or subjected
to other appropriate sanctions.
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