Olsen v. Daymark Recovery Services
Filing
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ROSEBORO ORDER denying 20 Motion Waiver of Mediator Fee; Court further ORDERED that Plaintiff file and serve her response and any supporting exhibits, including affidavits, to Defendants Motion for Summary Judgment [# 18] not later than November 30, 2011. Signed by Magistrate Judge Dennis Howell on 11/17/11. (Pro se litigant served by US Mail.)(nll) Modified text on 11/17/2011 (nll). NEF Regenerated.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:10cv289
WENDY OLSEN,
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Plaintiff,
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v.
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DAYMARK RECOVERY SERVICES, )
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Defendant.
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___________________________________ )
ROSEBORO
ORDER
Pending before the Court is Defendant’s Motion for Summary Judgment [# 18].
Plaintiff is proceeding pro se and will be advised of her obligation to respond and the
time for doing so.
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiff, who is proceeding pro se, is cautioned that she carries a heavy burden in
responding to a motion for summary judgment. Rule 56(a), Federal Rules of Civil
Procedure, provides:
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.
Fed.R.Civ.P. 56(a). The rule goes on to provide procedures for plaintiff to use in
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responding to a Motion for Summary Judgment:
(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.
Fed.R.Civ.P. 56(c). This language means that if Plaintiff has any evidence to offer to
show that there is a genuine issue for trial, Plaintiff must now present it to this court
in a form which would otherwise be admissible at trial, i.e., in the form of affidavits
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or unsworn declarations. An affidavit is a written statement under oath; that is, a
statement prepared in writing and sworn before a notary public.
An unsworn
statement, made and signed under the penalty of perjury, may also be submitted.
Affidavits or statements must be presented by plaintiff to this court within the time
provided in this Order for a response and served on counsel for the moving party as
evidenced in a certificate of service attached to Plaintiff’s response. Failure to
respond may result in summary judgment being entered against Plaintiff by reason of
default.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff file and serve her response
and any supporting exhibits, including affidavits, to Defendant’s Motion for Summary
Judgment [# 18] not later than November 30, 2011. Upon a review of Plaintiff’s
Motion for Waiver of Mediator Fee and the record in this case, the Court DENIES the
motion [# 20].
Signed: November 17, 2011
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