Faircloth v. Wilcox et al

Filing 9

MEMORANDUM DECISION and Order: The Clerk of Court shall mail Notice of a Lawsuit and Request to Waive Service of a Summons, AO form 398; copies of Waiver of the Service of Summons, AO form 399; and copies of the Complaint, (ECF No. 1 ), and this Order to Salt Lake County defendants Dr. Wilcox, Salt Lake County, and Sheriff Rivera in care of: Salt Lake County Sheriff's Office. MOTION 3 to Appoint Counsel and MOTION 8 to Appoint Counsel are DENIED. Signed by Judge David Barlow on 11/21/2024. (kpf)

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
JAMES ARTHUR FAIRCLOTH,
Plaintiffs,
v.

MEMORANDUM DECISION AND
ORDER FOR SERVICE OF PROCESS
Case No. 2:24-cv-00807 DBB

DR. WILCOX et al.,

District Judge David Barlow
Defendants.

As an unrepresented inmate, Plaintiff filed this civil-rights suit, 42 U.S.C.S. § 1983
(2024), proceeding without prepaying the filing fee, see 28 id. § 1915. (ECF Nos. 1–2, 5.)
Having now screened the Complaint, (ECF No. 1), under its statutory review function, 1 the Court
concludes that official service of process is warranted for Defendants. See 28 U.S.C.S. § 1915(d)
(2024) (“The officers of the court shall issue and serve all process, and perform all duties in such
cases.”).

The screening statute reads:
(a) Screening.—The court shall review . . . a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for dismissal.—On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint—
(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C.S. § 1915A (2024).

1

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Under Federal Rule of Civil Procedure 4(c)(1), the Court requests waiver of service from
the following Salt Lake County defendants: Dr. Wilcox; Salt Lake County; 2 and Sheriff Rosie
Rivera. 3 (ECF No. 1.)
MOTIONS FOR APPOINTED COUNSEL
Plaintiff also moves “for appointment of counsel.” (ECF Nos. 3, 8.)
“As a civil litigant, plaintiff has no Sixth Amendment right to counsel.” Johnson v.
Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). And the Court lacks authority to appoint
counsel; still, federal statute authorizes the Court to ask counsel to agree to represent an indigent
plaintiff free of charge. 4 See 28 U.S.C.S. § 1915(e)(1) (2024) (“The Court may request an

Plaintiff actually names Salt Lake County Sheriff’s Office as the defendant. (ECF No. 1.) However, the
sheriff’s office is not an entity that can sue and be sued. See Hinton v. Dennis, 362 Fed. Appx. 904, 907 (10th Cir.
2010) (“Generally, governmental sub-units are not separate suable entities that may be sued under § 1983.”);
Lindsey v. Thomson, 275 Fed. App’x. 744, 747 (10th Cir. 2007) (acknowledging sheriff and police departments “are
not legally suable entities.”). Thus, an official-capacity claim is construed to be against the main governmental
entity, Salt Lake County.
2

Plaintiff names Defendants in both their individual and official capacities. (ECF No. 1.) As the United
States Court of Appeals for the Tenth Circuit explains:
The Supreme Court has instructed that “official-capacity suits generally
represent only another way of pleading an action against an entity of which an
officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (cleaned up). By
contrast, individual-capacity suits “seek to impose individual liability upon a
government officer for actions taken under color of state law.” Id.
Coates v. Reigenborn, Nos. 22-1339, 2023 U.S. App. LEXIS 27456, at *9–10 (10th Cir. Oct. 16, 2023)
(unpublished); see also Mocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015) (“A suit against a
government agent in his official capacity is treated as a suit against the government.”).
3

The Tenth Circuit has noted:
Each year, the district court receives hundreds of requests for legal
representation and only a small number of attorneys are available to accept these
requests. Accordingly, the district court must use discretion in deciding which
cases warrant a request for counsel. To do otherwise would deprive clearly
deserving litigants of an opportunity to obtain legal representation. The dilemma
is unfortunate for litigants [denied counsel]. But the dilemma [i]s not the district
court’s fault; that dilemma [i]s the product of the court's lack of authority to
compel legal representation or to reimburse attorneys for their time.
Rachel v. Troutt, 820 F.3d 390, 397 n.7 (10th Cir. 2016); see also Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490
U.S. 296, 298 (1989) (stating courts may not “require an unwilling attorney to represent an indigent litigant in a civil
case”); Greene v. U.S. Postal Serv., 795 F. App’x 581, 583 (10th Cir. 2019) (unpublished) (“In most legal
communities, only a limited number of attorneys are willing to take these cases. Thus, the district court [must]
decide how to maximize the benefit from these local resources.”); Gross v. GM LLC, 441 F. App’x 562, 567 (10th
Cir. 2011) (unpublished) (observing courts rarely request counsel to represent parties in civil actions); Castner v.
4

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attorney to represent any person unable to afford counsel.”); McCleland v. Raemisch, No. 201390, 2021 U.S. App. LEXIS 29490, at *15 n.3 (10th Cir. Sept. 30, 2021) (unpublished)
(explaining, when prisoner-plaintiffs “refer to appointing counsel,” they “really refer to a request
that an attorney take the case pro bono”). Plaintiff has the burden of convincing the Court that
Plaintiff's claim has enough merit to warrant such a request of counsel. McCarthy v. Weinberg,
753 F.2d 836, 838 (10th Cir. 1985). But “[i]t is not enough” for Plaintiff to argue that he needs
help “in presenting his strongest possible case, as the same could be said in any case.” Steffey v.
Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (cleaned up).
Instead, in deciding whether to ask volunteer counsel to represent Plaintiff at no cost, this
Court considers a variety of factors, like “the merits of the litigant's claims, the nature of the
factual issues raised in the claims, the litigant’s ability to present his claims, and the complexity
of the legal issues raised by the claims.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995) (cleaned up); accord McCarthy, 753 F.2d at 838–39. Considering the above factors, the
Court concludes here that, at this time, Plaintiff's claims may not be colorable, the issues in this
case are not complex, and Plaintiff does not appear to be too incapacitated or unable to
adequately function in pursuing this matter. Thus, the Court denies for now Plaintiff’s motions
for appointed counsel.
ORDER
IT IS ORDERED that:
(1) Defendants Wilcox, Salt Lake County, and Rivera shall answer the Complaint. (ECF
No. 1.)

Colo. Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (cautioning courts that indiscriminately appointing
“volunteer counsel to undeserving claims will waste a precious resource and may discourage attorneys from
donating their time”).

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(2) The Clerk of Court shall mail Notice of a Lawsuit and Request to Waive Service of a
Summons, AO form 398; copies of Waiver of the Service of Summons, AO form 399; and
copies of the Complaint, (ECF No. 1), and this Order to Salt Lake County defendants Dr.
Wilcox, Salt Lake County, and Sheriff Rivera in care of:
Salt Lake County Sheriff’s Office
Ms. Carita Lucey
2001 S. State Street, Suite S2700
Salt Lake City, UT 84190.
(3) Defendants are cautioned that Federal Rule of Civil Procedure 4 requires Defendants
to cooperate in saving unnecessary costs of serving summons and complaint. Under Rule 4, if
Defendants fail to waive service of summons, after being asked by the Court to do so on
Plaintiff’s behalf, Defendants must bear service costs unless good cause be shown for failing to
sign and return the waiver form. If service is waived, this action will proceed as if Defendants
had been served on the day the waiver is filed, except that Defendants need not file an answer
until 60 days from the date on which the waiver request was sent. See Fed. R. Civ. P. 4(d)(3).
(This allows longer time to respond than would be required if formal service of summons is
necessary.) Defendants must read the statement at the bottom of the waiver form that more
completely describes the party’s duties about waiver. If service is waived after the deadline given
in the Notice of a Lawsuit and Request to Waive Service of a Summons, but before Defendants
have been personally served, the Answer shall be due 60 days from the date on which the request
for waiver was sent or 20 days from the date the waiver form is filed, whichever is later.
(4) For every defendant for whom service has been ordered but for whom a waiver has
not been executed, attorneys for the entity at which service was tried for that defendant must file
a notice listing the defendant for whom service has not been waived and the reasons a waiver has
not been provided. This report is due 30 days from the date the Request was sent.
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(5) Defendants shall answer the Complaint, observing the Federal Rules of Civil
Procedure and the following litigation schedule:
(a) If Defendants assert the affirmative defense of Plaintiff’s failure to exhaust
administrative remedies in a grievance process, Defendants must,
(i) within 60 days of date of waiver request, file an answer;
(ii) within 90 days of filing an answer, prepare and file a Martinez report 5
limited to the exhaustion issue; and,
(iii) within 120 days of filing an answer, file a separate summary
judgment motion, with supporting memorandum.
(b) If Defendants challenge the complaint’s bare allegations, Defendants shall,
within 60 days of date of waiver request, file a motion to dismiss based on
Federal Rule of Civil Procedure 12(b)(6).
(c) If Defendants choose not to rely on an exhaustion defense and instead
challenge the merits of the complaint’s allegations, Defendants must,
(i) within 60 days of date of waiver request, file an answer;

5

See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving district court’s practice of ordering
prison administration to prepare report to be included in pleadings in cases when prisoner has filed suit alleging
constitutional violation against institution officials).
In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained the nature and function of a
Martinez report, saying:
Under the Martinez procedure, the district judge or a United States magistrate
[judge] to whom the matter has been referred will direct prison officials to
respond in writing to the various allegations, supporting their response by
affidavits and copies of internal disciplinary rules and reports. The purpose of
the Martinez report is to ascertain whether there is a factual as well as a legal
basis for the prisoner's claims. This, of course, will allow the court to dig
beneath the conclusional allegations. These reports have proved useful to
determine whether the case is so devoid of merit as to warrant dismissal without
trial.
Id. at 1007.

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(ii) within 90 days of filing an answer, prepare and file a Martinez report
addressing the complaint’s substance; and,
(iii) within 120 days of filing an answer, file a separate summary
judgment motion, with supporting memorandum.
(d) If Defendants want to seek relief otherwise contemplated under procedural
rules, Defendants must file an appropriate motion within 90 days of filing an
answer.
(6) Plaintiff must, within 30 days of its filing, respond to Martinez report, including any
request and justification for other discovery, if needed.
(7) Plaintiff must, within 30 days of its filing, respond to any motion to dismiss or
summary-judgment motion. Failure to respond is a ground for dismissal. For Plaintiff’s
information and convenience, the Court has attached the procedural rules governing summaryjudgment practice.
(8) Defendants may file a reply brief within 14 days after the day Plaintiff’s opposition is
filed.
(9) A motion to dismiss or for summary judgment is deemed submitted as of the date the
reply brief is due. No hearing will be held on a motion unless the Court so orders at a later date.
(10) Plaintiff’s motions for appointed counsel are DENIED. (ECF Nos. 3, 8). However,
if--after the case develops further--it appears that counsel may be needed or of specific help, the
Court may ask an attorney to appear pro bono on Plaintiff's behalf. The Court will continually
reevaluate the need for counsel; thus, no further motions for appointed counsel are needed.

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(11) Together with their answer, Defendants must file a response to Plaintiff’s motions
for preliminary injunctive relief. (ECF Nos. 4, 7.)
DATED this 21st day of November, 2024.
BY THE COURT:

JUDGE DAVID BARLOW
United States District Court

Fed Rule of Civil Procedure 56
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Summary Judgment
(a) Motion for Summary Judgment or Partial Summary Judgment. 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.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a
party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
(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.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of
fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the
court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that may
not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the
motion, it may enter an order stating any material fact—including an item of damages or other relief—
that is not genuinely in dispute and treating the fact as established in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under
this rule is submitted in bad faith or solely for delay, the court—after notice and a reasonable time to
respond—may order the submitting party to pay the other party the reasonable expenses, including

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attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or
subjected to other appropriate sanctions.
DISTRICT OF UTAH LOCAL CIVIL RULE 56-1
SUMMARY JUDGMENT MOTIONS AND MEMORANDA
(a) Compliance with DUCivR 7-1.
A motion for summary judgment, response, and reply must comply with DUCivR 7-1 in addition to the
requirements in this rule.
(b) Motion.
If a party files more than 1 summary judgment motion at the same time, the court may strike the motions
and require that the motions be consolidated into a single motion. A motion for summary judgment must
be titled “Motion for Summary Judgment,” be supported by an Appendix of Evidence, as described in 561(e), and include the following sections:
(1) Introduction and Relief Requested. A concise statement of each claim or defense for which
summary judgment is sought and a clear statement of the relief requested.
(2) Background (Optional). An optional section to provide context for the case, dispute, and
motion. If included, this section should be placed between the Introduction and Relief Requested and the
Statement of Undisputed Material Facts. The Background need not be limited to undisputed facts and
need not cite to evidentiary support.
(3) Statement of Undisputed Material Facts. A concise statement of the undisputed material facts
that entitle the moving party to judgment as a matter of law. Only facts necessary to decide the motion
should be included in this section. The moving party must cite with particularity the evidence in the
Appendix that supports each factual assertion.
(4) Argument. An explanation for each claim or defense, establishing, under the applicable
supporting authority, why the moving party is entitled to judgment as a matter of law. The argument
section should include a statement of each claim or defense on which the party is seeking summary
judgment and supporting authorities. Any factual references must cite to the Appendix.
(c) Response.
A response to a motion for summary judgment may be accompanied by an Appendix of Evidence, if
applicable, and must include the following sections.
(1) Introduction. A concise statement explaining why summary judgment should be denied.
(2) Background (Optional). An optional section to provide context for the case, dispute, and
motion. If included, this section should be placed between the Introduction and the Response to Statement
of Undisputed Material Facts. The Background need not be limited to undisputed facts and need not cite
to evidentiary support.
(3) Response to Statement of Undisputed Material Facts. A party must restate only those specific
facts the opposing party contends are genuinely disputed or immaterial, providing a concise statement
explaining why the fact is disputed or immaterial, and cite to the evidence used to refute the fact. The
responding party should not restate undisputed facts. If a fact is inadmissible, the responding party must
object, as provided in DUCivR 7-1(b), rather than move to strike the inadmissible fact. Factual citations
must reference the appropriate Appendix.
(4) Statement of Additional Material Facts (if applicable). If additional material facts are relevant
to show that there is a genuine dispute of material fact, the party must state each additional fact and cite
with particularity to the Appendix that contains the supporting evidence. Do not include duplicate copies
of evidence already in the record. Instead, the party must cite to evidence in a previously filed Appendix.
(5) Argument. An explanation for each claim or defense, establishing, under the applicable
supporting authority, why summary judgment should be denied. Any factual citations must cite to the
appropriate Appendix.
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(d) Reply.
The moving party may file a reply. In the reply, a party may cite to evidence that was not previously cited
only to rebut a claim that a material fact is in dispute. Otherwise, a reply may not contain additional
evidence, and, if it does, the court may disregard it.
(e) Appendix of Evidence.
(1) All evidence cited in a motion, response, or reply must be compiled in an appendix. Do not
include duplicate copies of evidence already in the record. Instead, the party must cite to evidence in a
previously filed Appendix.
(2) The Appendix must include:
(A) a captioned, cover-page index that—
(i) lists each exhibit by number;
(ii) includes a description or title of the exhibit; and
(iii) identifies the source of the exhibit;
(B) complete copies of all exhibits, including deposition transcripts. For lengthy
deposition transcripts, the party may submit the relevant pages of the deposition and the 4 pages before
and 4 pages after the sections cited. Manuscript transcripts are permitted, unless otherwise ordered by the
court.
(f) Failure to Respond. If a party fails to timely respond, the court may grant the motion without further
notice if the moving party has established that it is entitled to judgment as a matter of law.
DISTRICT OF UTAH LOCAL CIVIL RULE 7-1
MOTIONS AND MEMORANDA
(a) Motion, Response, and Reply.
(1) Motion and Memorandum. Except as otherwise allowed by this rule, a motion and
memorandum must be contained in the same document and include the following:
(A) an initial separate section stating succinctly the specific relief sought and the grounds
for the relief; and
(B) a recitation of relevant facts, supporting authority, and argument.
(2) Exception to the Requirement to Include Facts and Supporting Authority. The requirement to
include facts and supporting authority under section 7-1(a)(1)(B) does not apply to the following motions:
(A) to extend time for the performance of an act, whether required or permitted, if the
motion is made before the current deadline expires;
(B) to continue a hearing or other court proceeding;
(C) to appoint a next friend or guardian ad litem;
(D) to substitute a party;
(E) for a settlement conference;
(F) for referral to or withdrawal from the court’s ADR program; and
(G) for approval of a stipulation between the parties.
(3) No Motion Within a Response or Reply. A party may not make a motion, including a motion
under Fed. R. Civ. P. 56(d), or a cross-motion in a response or reply. Any motion must be separately
filed. A cross-motion may incorporate by reference the arguments contained in a response, if applicable.
(4) Page and Word Limits and Filing Times. Unless the court orders otherwise or the parties
stipulate to shorter requirements, the following apply:
(A) Motions Filed Under Fed. R. Civ. P. 12(b), 12(c), or 23(c).
(i) A motion or a response may not exceed 25 pages or 7,750 words.
(ii) A reply may not exceed 10 pages or 3,100 words.
(iii) A response to a motion must be filed within 28 days after service of the
motion.
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motion.

motion.

3,100 words.
motion.

(iv) A reply may be filed within 14 days after service of the response.
(B) Motions Filed Under Fed. R. Civ. P. 56(a).
(i) A motion or a response may not exceed 40 pages or 12,400 words.
(ii) A reply may not exceed 20 pages or 6,200 words.
(iii) A response to a motion must be filed within 28 days after service of the
(iv) A reply may be filed within 14 days after service of the response.
(C) Motions Filed Under Fed. R. Civ. P. 65.
(i) A motion or a response may not exceed 25 pages or 7,750 words.
(ii) A reply may not exceed 10 pages or 3,100 words.
(iii) A response to a motion must be filed within 14 days after service of the
(iv) A reply may be filed within 14 days after service of the response.
(D) All Other Motions.
(i) A motion, response, or reply not specified above may not exceed 10 pages or
(ii) A response to a motion must be filed within 14 days after service of the

(iii) A reply may be filed within 14 days after service of the response.
(5) Stipulation to Extend Filing Time. Parties seeking to extend the filing time for a response or
reply must file a stipulated motion before the filing time has passed. A stipulation to extend a filing time
is ineffective without a court order.
(6) Sections Applicable to Page or Word Limits and Certification Requirement.
(A) All headings, citations, quotations, and footnotes count toward the page or word
limit.
(B) The caption, face sheet, table of contents, table of authorities, signature block,
certificate of service, and exhibits do not count toward the page or word limit.
(C) When a document exceeds the page limit, a party must certify at the end of the
document that the document complies with the word limit (e.g., “I, [attorney’s name], certify that this
[name of document] contains [number of words] words and complies with DUCivR 7-1(a)(4).”).
(7) Overlength Motion, Response, or Reply.
(A) Unless modified by the assigned judge in a court order or on their “practices and
procedures” page on the court website, a party must first obtain a court order authorizing the additional
pages or words before filing a motion, response, or reply that exceeds the page or word limits in section
7-1(a)(4). The motion must be filed, and the order obtained, before filing the overlength motion, response,
or reply. The motion to exceed the page or word limit must include:
(i) the number of additional pages or words that are needed; and
(ii) a statement of good cause why additional pages or words are needed. (B) An
overlength motion, response, or reply must contain a table of contents.
(8) Motion Seeking Relief Similar to Another Party’s Motion. Each party seeking relief from the
court must file a motion that identifies the relief sought and grounds for the requested relief. A party may
incorporate by reference another party’s arguments in the party’s own motion, if applicable, but filing a
“Notice of Joinder” is improper.
(9) Additional Memoranda. Unless otherwise ordered, the court will not consider additional
memoranda.
(b) Motion to Strike Evidence Improper; Evidentiary Objections Permitted.
(1) A motion to strike evidence offered in another party’s motion, response, or reply is improper.
(2) If evidence is offered in a motion or a response, the response or reply may include an
objection to the evidence. In exceptional circumstances, the objection may be filed as a separate
document simultaneously with the response or reply.
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(3) If new evidence is offered in a reply, an evidentiary objection must be filed within 7 days after
service of the reply.
(4) A party may file a response to an evidentiary objection at the same time any response or reply
is due or no later than 7 days after the objection was filed, whichever is later.
(c) Supplemental Authority.
When pertinent and significant authority comes to the attention of a party before the court has entered a
decision on a motion, the party may file a Notice of Supplemental Authority, which may not exceed 2
pages.
(1) The notice must contain, without argument, the following:
(A) a reference either to the page of the memorandum or to a point argued orally to which
the supplemental authority pertains; and
(B) the reasons why the supplemental authority is relevant.
(2) The court may decide a motion without waiting for a response to the notice. If the court has
not ruled on the motion, a party may file a response, which may not exceed 2 pages, within 7 days after
service of the notice.
(d) Supporting Exhibits.
When evidence is cited in a motion, response, or reply, the relevant portions of the evidence must be
attached or filed separately and contemporaneously with the document.
(e) Proposed Orders.
(1) When Required. A party must provide a proposed order when filing a motion under section 71(a)(2) of this rule or when the court orders otherwise.
(2) Filing Procedures. To file a proposed order, a party must:
(A) attach it as an exhibit to the motion; and
(B) email an editable copy of the proposed order, copied to other parties or their
counsel—
(i) for motions filed under DUCivR 77-2, to [e-mail]; and
(ii) for all other motions, to the assigned judge’s chambers.
(f) Failure to Respond.
Except as provided in DUCivR 56-1(f), failure to respond timely to a motion may result in the court
granting the motion without further notice.
(g) Oral Arguments on Motions.
The court may set any motion for oral argument. Otherwise, a party may request oral argument on a
motion and must show good cause. If oral argument is not set, the court will determine a motion based
upon the parties’ written memoranda.
(h) Summary Judgment.
This rule and DUCivR 56-1 apply to motions for summary judgment and related memoranda.
(i) Courtesy Copies.
The court may require a party to provide courtesy copies as described in the court’s ECF Procedures
Manual and on the Judge Information section of the court’s website.
(j) Sanctions.
Failure to comply with the requirements of this rule may result in the court imposing sanctions, including:
(1) returning the document for resubmission in accord with the rule;
(2) denial of the motion; or
(3) any other sanction the court deems appropriate.

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