Olsen v. Daymark Recovery Services

Filing 28

ORDER denying without prejudce 25 Deft's Motion to Strike; denying as untimely 24 Pltf's Motion for Summary Judgment, the Court will construe this pleading as Pltf's supplemental response to Deft's Moti on for Summary Judgment [Doc. 18]; the Court will consider argument contained in pgs 12-23 of Deft's Motion to Strike as a supplemental reply in response to Pltf's supplement response; and denying as moot 27 Pltf's Motion for Extension of Time. Signed by Magistrate Judge Dennis Howell on 1/11/12. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:10cv289
WENDY OLSEN,

)
)
Plaintiff,
)
)
v.
)
)
DAYMARK RECOVERY SERVICES, )
)
Defendant.
)
___________________________________ )

ORDER

Previously, the Court entered a pretrial Order in this case setting the
summary judgment deadline for November 1, 2011. Defendant moved for
summary judgment on October 28, 2011. Plaintiff, who is proceeding pro se, filed
a response the motion. The Court then entered an Order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), explaining the process of responding to a
motion for summary judgment and granted Plaintiff an opportunity to file a
supplemental response to the Motion for Summary Judgment. In response to the
Court’s Roseboro Order, however, Plaintiff filed a pleading styled as a motion for
summary judgment [# 24]. Defendant then moved to strike Plaintiff’s motion
[# 25]. Finally, Plaintiff requested an extension of time to respond to the Motion to
Strike [# 27].

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Upon a review of the parties’ briefs and the record in this case, the Court
DIRECTS the parties as follows:
(1)

The Court DENIES without prejudice the Motion to Strike [# 25].

(2)

Because the time for filing a motion for summary judgment expired
prior to Plaintiff filing her motion, and because the Court’s Roseboro
Order only addressed allowing Plaintiff leave to file a supplemental
response to the Defendant’s Motion for Summary Judgment, the Court
will construe the pleading as Plaintiff’s supplemental response to the
Motion for Summary Judgment. The Court will not entertain an
untimely motion for summary judgment. Accordingly, to the extent
that Plaintiff intended to assert a motion for summary judgment in her
pleading, the Court DENIES the motion [# 24] as untimely.

(3)

In considering Plaintiff’s pleading [# 24] as a supplemental response,
however, the Court will disregard any evidence submitted by the
Plaintiff that would be improper for the Court to consider at the
summary judgment stage.

(4)

The Court will consider the argument contained in pages 12-23 of
Defendant’s Motion to Strike as a supplemental reply in response to
Plaintiff’s supplement response.

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(5)

Finally, the Court DENIES as moot the Motion for Extension of
Time [# 27].

Signed: January 11, 2012

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