Johnson v. State Faem
Decision Date | 22 July 2013 |
Docket Number | CA 12-00534-N |
Parties | MAEVETTE JOHNSON and DEBBIE JOHNSON, Plaintiffs, v. STATE FAEM, Defendant. |
Court | U.S. District Court — Southern District of Alabama |
Now before the Court is the plaintiffs' "motion for leave to re-file excerpts of stricken document as statement of disputed facts" (Doc. 60), filed July 20, 2013. For the reasons discussed below, the motion is DENIED.
In this case, proceeding before the undersigned United States Magistrate Judge for all purposes, including trial, pursuant to 28 U.S.C. § 636(c) (see Docs. 8, 9), the deadline for filing dispositive motions was June 14, 2013 (see Doc. 14, ¶ 11). On that date, Defendant State Farm filed a motion for summary judgment (Doc. 43; see also Docs. 44-51); the plaintiffs did not.
On June 17, 2013, the Court issued an order (Doc. 53), setting July 11, 2013 as the deadline for the plaintiffs to respond to State Farm's motion and July 25, 2013 as the deadline State Farm to file its reply. On July 11, 2013, the plaintiffs filed their response (incorrectly titled a "reply") (Doc. 55); a pleading titled"proposed findings of fact and conclusions of law" (Doc. 56)1 ; and a "request for leave to file additional pages" (Doc. 57). On July 17, 2013, on the basis that the "plaintiffs have filed no motion for summary judgment in this case[,]" the Court struck the "proposed findings" and denied the "request to file additional pages." (Doc. 59.)
In their current motion, the plaintiffs now inform the Court that portions of their "proposed findings" were "intended to serve as statements of facts disputed by Plaintiff[s], in summary form, which were covered by argument in Plaintiffs' Brief" (Doc. 60, ¶ 1); and, while acknowledging that they did not move for summary judgment, the plaintiffs advise the Court that their "proposed findings" were based on Rule 56(f)(1), "which provides that the Court has discretion to enter summary judgment in favor of a nonmovant after giving notice and a reasonable time to respond, if required by the record evidence, and no disrespect for the Court or evasion of the deadline for filing Motions for Summary Judgment was intended" (id., ¶ 2).
San Francisco Residence Club, Inc. v. Baswell-Guthrie, 897 F. Supp. 2d 1122, 1195 (N.D. Ala. 2012) ( )2 ; under 56(f)(1), "the Court may grant summary judgment for the non-moving party '[a]fter giving notice and a reasonable time to respond[,]'" Cabana on Collins, LLC v. Regions Bank, No. 11-21204-CIV, 2012 WL 718806, at *5 (S.D. Fla. Mar. 5, 2012) (quoting FED. R. CIV. P. 56(f)(1)).
Just as under the district court's longstanding power to enter summary judgment sua sponte, under newly minted Rule 56(f)(1),"[t]he key consideration is whether the party against whom judgment was entered had proper notice of the possible judgment against him: 'The party against whom summary judgment is entered must have notice that the court is considering dropping the ax on him before it actually falls.'" California v. Kinder Morgan Energy Partners, L.P., No. 07-CV-1883-MMA(WVG), 2013 WL 314825, at *22 (S.D. Cal. Jan. 25, 2013) ( ).
While it may be advisable to formally notify the parties that the Court is considering a Rule 56(f)(1) request, based on the particular case, such a formality may not be required. Compare Cabana on Collins, 2012 WL 718806, at *5 ( ) and Deutsche Bank Nat'l Trust Co. v. Citibank, N.A., 775 F. Supp. 2d 1334, 1344 n.8 (M.D. Ala. 2011) (), with Kinder Morgan, 2013 WL 314825, at *22 () .
Importantly, Rule 56(f)(1) is a tool to be used by the Court; it is not a substitute for filing a motion for, or cross-motion to, summary judgment. See, e.g., National Exchange Bank & Trust v. Petro-Chemical Sys., Inc., No. 11-C-134, 2013WL 1858621, at *1 (E.D. Wis. May 1, 2013) () ; Smith v. Amaru, No. C11-5080 RJB/KLS, 2012 WL 4882257, at *2 (W.D. Wash. Sept. 24, 2012) (), report and recommendation adopted, 2012 WL 4882209 (W.D. Wash. Oct. 15, 2012); see also National Exchange Bank, 2013 WL 1858621, at *2 ( ); id. at *3 ) .
The plaintiffs' response fulfills their burden, under Rule 56 and Local Rule 7.2, "to go beyond the pleadings and by [their] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Archie v. Home-Towne Suites, LLC, 749 F. Supp. 2d 1308, 1312 (M.D. Ala. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324 (1986)). Thus, because the plaintiffs have not moved for summary judgment, the Court does need the benefits of the "proposed findings" "in summary form[.]" (Doc. 60, ¶ 1.) The motion for leave to re-file the "proposed findings" is accordingly DENIED. If, after a review of the evidence and arguments in support of, and in opposition to, summary judgment, the Court believes the plaintiffs may be entitled to summary judgment, it will issue an order advising the parties of its intent to utilize Rule 56(f)(1) and set an appropriate briefing schedule.
The plaintiffs' motion for leave (Doc. 60) is DENIED. State Farm shall file its reply in support of summary judgment no later than July 26, 2013.3
______________________
KATHERINE P. NELSON
1. The "proposed findings" actually appear to be a proposed order on summary judgment. (See, e.g., id. at 1 (...
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