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Simonis v. Magrini

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 21, 2009

LILIAN SIMONIS, ET AL., PLAINTIFFS,
v.
ERIC MAGRINI, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiffs, who are proceeding pro se, bring this civil action. Pending before the court is plaintiffs' "Motion for Summary Judgment" (Doc. 8), filed on November 5, 2008. For the following reasons, the motion should be denied.

First, it is premature in that it was filed before the parties have had any meaningful opportunity to conduct discovery.

Second, it does not demonstrate the non-existence of genuine material facts which would entitle plaintiffs to judgment as a matter of law. The basis for plaintiffs' motion is their contention that defendants, by way of their answer, have admitted liability. Plaintiffs are incorrect. A review of defendants' answer filed on October 24, 2008, specifically reflects that they have denied a number of the key allegations of the complaint. In addition, they have asserted various affirmative defenses and plaintiffs have not established in their "Motion for Summary Judgment" that defendants cannot prevail on each of those defenses.

Finally, in their motion plaintiffs state that they are entitled to $2,000,000.00 in U.S. gold coins, but do not provide any evidence to establish that amount as the appropriate measure of their damages, even assuming liability could be determined at this point in the case as a matter of law.

Based on the foregoing, the undersigned recommends that plaintiffs' "Motion for Summary Judgment" (Doc. 8) be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 15 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20090121

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