Miller v. Wal-Mart
Filing
71
ROSEBORO ORDER that Plaintiff file and serve his response and any supporting exhibits, including affidavits, to defendants 67 MOTION for Summary Judgment not later than 1/9/2015. Signed by District Judge Max O. Cogburn, Jr on 12/29/2014. (Pro se litigant served by US Mail.)(nv)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:13-cv-00046-MOC-DLH
MARK KEVIN MILLER,
)
)
)
)
)
)
)
)
)
Plaintiff,
Vs.
WAL-MART,
Defendant.
ROSEBORO
ORDER
THIS MATTER is before the court on defendant’s Motion for Summary
Judgment (#67). In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
plaintiff, who is proceeding pro se, is cautioned that he 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 filing a
response 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:
-1-
(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 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
-2-
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 his response and
any supporting exhibits, including affidavits, to defendant’s Motion for Summary
Judgment (#67) not later than January 9, 2015.
Signed: December 29, 2014
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?