Christ v. Blackwell

          ORDER

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983.^[1] Currently pending are: (1) defendants’ response to the court’s December 3, 2015 order to show cause (ECF No. 194); (2) defendants’ motion for summary judgment (ECF No. 193); and (3) various motions and objections filed by plaintiff in response to the motion for summary judgment (ECF Nos. 197, 199, 204-206). For the following reasons, the court will impose sanctions on defense counsel for failing to adhere to the schedule without good cause, deny plaintiff’s motions, and grant the motion for summary judgment in part and deny it in part.

         I. Defendants’ Response to the Order to Show Cause

         A. Background

         Plaintiff filed this action in Santa Clara County Superior Court on January 5, 2010. ECF No. 1-1. Defendants removed the case to federal court. ECF No. 1. The case progressed through discovery, and defendants allowed the dispositive motion filing deadline (April 22, 2011) to pass without filing a motion to dismiss or a motion for summary judgment. ECF No. 19. In May 2013, after reviewing the pretrial statements filed by the parties, the court discovered that two named defendants - Weiglein and Roszko - had not responded to the complaint. See ECF No. 101. Plaintiff informed the court that he was pursuing his claims against Weiglein in a separate action and the court accordingly dismissed Weiglein from this action. ECF No. 106. After a long process that need not be recounted here (see Id. at 2), defendant Roszko was properly served with the complaint. ECF No. 135. The court then issued a revised schedule governing discovery and dispositive motions “so that plaintiff and defendant Roszko may engage in discovery and pretrial motions with respect to plaintiff’s claims against defendant Roszko.” ECF No. 145 at 1.

         On December 30, 2014, defendants filed a motion for summary judgment addressing all of plaintiff’s claims against all defendants. ECF No. 159. Defendants did not seek relief from the schedule that governed all of them except Roszko, under which the dispositive motion filing deadline had passed. ECF No. 19 (providing a dispositive motion deadline of April 22, 2011). Defendants argued that that they filed a motion addressing all claims against all defendants because they “were unable to determine which claims or causes of actions were directed to which defendant.” ECF No. 161. The court found this representation disingenuous. Because defendants Blackwell, Broyles, Lopez, Voight, and Zuniga did not show good cause why they did not seek summary judgment on or before April 22, 2011, the court declined to consider their arguments. ECF No. 176 at 2-3 (citing Fed.R.Civ.P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”) and Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (holding that a motion to modify the schedule must be supported by a showing of good cause; i.e., that the schedule could not have been met despite the moving party’s diligence)). The court noted that, if these defendants wished to seek summary judgment on plaintiff’s claims against them, they were required to file a motion for modification of the schedule, supported by a showing of good cause. Id.

         Defendants filed such a motion. ECF No. 179. The court concluded that the non-Roszko defendants had not shown good cause for their failure to comply with the April 22, 2011 dispositive motion deadline. ECF No. 190. Nevertheless, the court allowed these defendants to file a motion for summary judgment outside that deadline because the court cannot waste resources trying claims that may be resolved on summary judgment. Id. The court ordered defense counsel to show cause why they should not be sanctioned for violating the scheduling order. Id. The court has received counsel’s response. ECF No. 194.

         B. Analysis

         Federal Rule of Civil Procedure 16(f) provides that the court may, on its own motion, issue “any just order, ” including sanctions, where a party “fails to obey a scheduling order.” In the response to the order to show cause, defense counsel states that they allowed the April 22, 2011 deadline to pass in a “good faith-although obviously mistaken-assumption about how to best proceed in an effort to save the Court’s time and resources.” ECF No. 194 at 1. According to counsel, they knew that defendant Roszko might eventually be served and were waiting until that time to file a summary judgment motion addressing plaintiff’s claims against all defendants. Id. at 2.

         The court has reviewed the docket in this action and finds defense counsel’s proffered reason for allowing the dispositive motion deadline to pass difficult to believe. To credit counsel’s story, the court would have to believe that counsel was willing to forego filing a potentially successful summary judgment motion on behalf of five defendants because there was a chance that a sixth defendant (who had not been served and was not participating in the case) would later be given an opportunity to file such a motion. If defense counsel had truly wanted to save the court’s time by filing a single motion for all defendants, counsel could have alerted the court to the fact that plaintiff’s attempt to serve Roszko prior to removal had been unsuccessful and resolved the question of whether he would be added to the case before the April 22, 2011 deadline passed (by, for example, filing a motion to dismiss Roszko under Federal Rule of Civil Procedure 4(m)). It appears that, instead, counsel hoped that plaintiff and the court would not notice Roszko’s sudden disappearance from the case and that the case would conclude without his further participation. Once that was no longer possible, counsel tried to piggyback a now-extraordinarily-late motion for summary judgment for the five pre-existing defendants onto defendant Roszko’s motion.

         Defense counsel’s conduct placed the court in the untenable position of either dispensing with Rule 16’s good cause standard or holding a possibly needless trial. The court’s docket is far too impacted to allow a case to proceed to a jury trial when it could have been resolved by summary judgment. But the court must ensure that parties adhere to schedules or provide good cause when they depart from them. Accordingly, the court will impose monetary sanctions of $500 jointly and severally on current defense counsel Jeffrey E. Beeson, Michael A. Terhorst, and Beeson Terhorst LLP.

         II. Plaintiff’s Motions and Objections to the Motion for Summary Judgment

         Plaintiff has filed a number of objections to defendants’ motion for summary judgment and requests that the court deny the motion for technical reasons. ECF Nos. 197, 199, 204-206. Plaintiff contends that defendants violated the court’s order that their motion be filed within 30 days of December 3, 2015. ECF Nos. 197, 199, 204, 206. The docket in this action shows that defendants filed the notice to plaintiff informing him of his obligations in responding to the motion, the points and authorities in support of the motion, the exhibits, and the statement of undisputed facts on December 28, 2015, within the 30-day deadline. ECF No. 193. Defendants served these same documents by mail the same day. However, the 3-paragraph notice of motion was not filed until January 8, 2016, for reasons defendants have not explained. ECF No. 195.

         Defendants filed the substantive portions of their summary judgment motion within the 30-day time limit set by the court. While the notice of motion was filed four days outside the 30-day window, plaintiff has not shown that the tardy notice caused him any prejudice. Accordingly, plaintiff’s request that the court deny the motion for summary judgment due to untimeliness is denied.

         Plaintiff argues that defendants were late in responding to the court’s order to show cause. ECF No. 197. The docket shows that defendants timely filed their response on December 28, 2015. ECF No. 193.

         Plaintiff also objects that defendants have not been consistent in including defendant Roszko’s name in various places in the motion for summary judgment. ECF No. 199. Plaintiff is aware that defendant Roszko has already been granted summary judgment. ECF No. 176. Defendants’ lack of care in listing the defendants who now seek summary judgment is not a basis for denying the motion.

         Plaintiff further requests that the court deny the motion because defendants have not filed a reply brief. ECF No. 205. While reply briefs are almost always helpful, and when submitted must be filed timely, defendants were not obligated to file a reply brief. E.D. Cal. L.R. 230(d) (the moving party “may” file a reply, but is not required to).

         Lastly, plaintiff “requests to settle this case.” ECF No. 205 at 2. One of plaintiff’s claims survives summary judgment (see below). Accordingly, the court will refer the case to a randomly-assigned magistrate judge for a settlement conference.

         III. Defendants’ Motion for Summary Judgment

         A. General Summary Judgment Principles

         Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.

         The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995).

         A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance, summary judgment must be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323.

         To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322.

         Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute, the evidence relied on by the opposing party must be such that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

         The court does not determine witness credibility. It believes the opposing party’s evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air, ” and the proponent must adduce evidence of a factual predicate from which to draw inferences. Am. Int'l Group, Inc. v. Am. Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary judgment.

         Concurrent with the motion for summary judgment, defendants advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 193-2; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

         B. The Parties’ ...