Hatcher v. Mildebrandt et al

Filing 50

ORDER denying without prejudice 45 Motion for Summary Judgment. Signed by Judge James C. Mahan on 8/26/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TERRANCE T. HATCHER,

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Case No. 2:13-CR-1378 JCM (CWH)
Plaintiff(s),

ORDER

v.
BRIAN MILDEBRANDT, et al.,
Defendant(s).

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Presently before the court is a motion for summary judgment filed by defendants Juan

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Solis, Richard Sterett, and Stacey Strickland (hereinafter “defendants”). (Doc. # 45). To date,

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pro se plaintiff Terrance Hatcher (hereinafter “plaintiff”) has not responded.

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defendants filed a notice of receipt of response from plaintiff, stating that plaintiff provided an

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unfiled response in the form of a single page letter. (Doc. # 48). In his letter, plaintiff claims

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that he could not respond to defendants’ motion because he did not receive a copy of it. (Doc. #

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48-1). Defendants noted that in response to plaintiff’s letter, they provided plaintiff with a copy

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of the motion at his listed address out of “an abundance of caution.” (Doc. # 48).

However,

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Federal Rule of Civil Procedure 5(a)(1)(D) states: “Unless these rules provide otherwise,

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each of the following papers must be served on every party . . . a written motion, except one that

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may be heard ex parte . . . .” Fed. R. Civ. P. 5(a)(1)(D). District of Nevada Rule 5-1(a) provides

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that “[a]ll papers required or permitted to be served shall have attached . . . a written proof of

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service.” D. Nev. R. 5-1(a). Further, District of Nevada Rule 5-1(c) states that “[f]ailure to

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make the proof of service required by this rule does not affect the validity of the service. Unless

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material prejudice would result, the court may at any time allow the proof of service to be

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amended or supplied.” D. Nev. R. 5-1(c).

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James C. Mahan
U.S. District Judge

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Defendants’ motion for summary judgment was filed on the docket without a certificate

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of service. (Doc. # 45). Therefore, pursuant to the standard above, the court will deny the

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motion without prejudice. The court will allow defendants leave to refile the motion with proof

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of service.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion for

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summary judgment, (doc. # 45), be, and the same hereby is, DENIED without prejudice.
DATED August 26, 2014.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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