Durbin et al v. Dacar

Filing 31

MEMORANDUM OPINION AND ORDER Denying Without Prejudice Dft's 27 Motion for Summary Judgment As Premature. Signed by Senior Judge Frederick P. Stamp, Jr on 1/6/10. (mji)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA JAMES W. DURBIN and JOANIE DURBIN, his wife, Plaintiffs, v. ARLEN M. DACAR, individually and d/b/a ARLEN M. DACAR MASONRY, Defendant. MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS PREMATURE On July 1, 2009, this Court entered a scheduling order in the above-styled civil action, ordering that all dispositive motions shall be filed by January 5, 2010. Thereafter, the Court granted Civil Action No. 5:09CV54 (STAMP)

the parties' joint motion for extension to disclose experts and to complete examination, and accordingly extended the deadline for dispositive motions until January 22, 2010. On January 5, 2010,

the defendant filed a motion for summary judgment, erroneously believing that the dispositive motion deadline was still scheduled for that date. On January 6, 2010, this Court held a status and scheduling conference regarding the parties' joint motion for modification of the Court's scheduling order. At that time, this Court entered an

amended scheduling order, in which discovery is to be completed by April 6, 2010, and dispositive motions shall be filed by April 20, 2010.

This Court believes, and case law suggests, that the parties are entitled to conduct discovery regarding any potential issues of material fact before responding to a summary judgment motion. The

Supreme Court has found that summary judgment is appropriate only when "no serious claim can be made that [the nonmovant] was in any sense `railroaded' by a premature motion for summary judgment." Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). This Court finds that the plaintiffs should be given "the opportunity to discover information that is essential to [their] opposition." (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

Furthermore, the defendant conceded at the status and

scheduling conference held on January 6, 2010, that his motion for summary judgment was premature, especially in light of this Court's ruling to amend the scheduling order and extend discovery until April 6, 2010. Accordingly, the defendant's motion for summary

judgment is hereby DENIED WITHOUT PREJUDICE as premature, subject to refiling after the parties have completed discovery in this action. IT IS SO ORDERED. The Clerk is directed to transmit a copy of this order to counsel of record herein. DATED: January 6, 2010

/s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

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