DURAN v. WARNER et al

Filing 118

OPINION. Signed by Judge Jerome B. Simandle on 11/29/2010. (drw, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MIGUEL DURAN, Plaintiff, v. OFFICER WILLIAM WARNER, et al., Defendants. SIMANDLE, District Judge:

HON. JEROME B. SIMANDLE Civil No. 07-5994 (JBS/AMD) MEMORANDUM OPINION

This matter is before the Court on three of Plaintiff's motions: for an extension of time to file opposition to

Defendants' summary judgment motion; for reconsideration pursuant to L. Civ. R. 7.1(i); and for an extension of time to move to amend the Complaint pursuant to Rule 15, Fed. R. Civ. P. [Docket Item 115]. No opposition to these motions has been filed. The

Court finds as follows: 1. After the filing of Defendants' summary judgment motion

[Docket Item 99], Plaintiff's counsel withdrew from the case [Docket Item 108]. The Court has given Plaintiff, who is now

proceeding pro se, the opportunity to file his own opposition to the summary judgment motion. Plaintiff has requested an

extension of time because he has outstanding discovery motions, because receiving the existing discovery from his former attorney has taken longer than expected, and because his status as a prisoner causes delays.

2.

Plaintiff has presented facts to justify a finding that

he cannot adequately oppose the summary judgment motion at this juncture. In the wake of the withdrawal of Plaintiff's attorney,

Plaintiff is entitled to an opportunity to review the existing evidence, have his discovery requests heard, and have his motion to amend the complaint heard. Additionally, efficient resolution

of this matter calls for dismissal of the summary judgment motion without prejudice until a decision with respect to the motion to amend the complaint is made. 3. Therefore, the Court will dismiss the summary judgment

motion pursuant to Rule 56(f), Fed. R. Civ. P., without prejudice to refiling it after Plaintiff's motion to amend and motions for discovery are decided. This will give Plaintiff adequate time to

review the existing evidence, and resolve the issues that logically precede summary judgment. Although Plaintiff has not

submitted a formal affidavit in compliance with Rule 56(f), his handwritten submission is signed and sworn, and consistent with his former attorney's representations to the Court. Under the

circumstances, including the fact that the motion is being decided on the basis of the known facts regarding the withdrawal of Plaintiff's counsel and in the absence of opposition, the Court will grant Plaintiff's motion for more time. 4. Plaintiff's motion for reconsideration asks this Court

to take some action with respect to his former counsel's 2

voluntary dismissal of certain Defendants [Docket Item 85].

As

this voluntary dismissal was not by order of the Court, it is not the proper subject of reconsideration. If Plaintiff seeks to

rejoin these Defendants to the case, he may propose to do so in his motion to amend the complaint, wherein he must demonstrate good cause to join parties who were previously dismissed. motion for reconsideration will be otherwise denied. 5. Plaintiff's motion for an extension of time to file a Plaintiff will The

motion to amend the Complaint will be granted.

have until January 3, 2011, to file such a motion which must include his proposed amended complaint. Failure to include the

proposed amended complaint will result in denial of the motion with prejudice. 6. If Plaintiff does not move to amend the Complaint before

January 4, 2011, then Defendants may re-submit their summary judgment motion as soon as Plaintiff's discovery motions are decided. 7. The accompanying Order will be entered.

November 29, 2010 Date

s/ Jerome B. Simandle JEROME B. SIMANDLE United States District Judge

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