Filed: Aug. 09, 2013
Latest Update: Aug. 09, 2013
Summary: MEMORANDUM & ORDER DAVID R. HERNDON, Chief District Judge. This matter comes before the Court on Automobile Club of Missouri's ("ACMO") motion to dismiss (Doc. 77). In part, ACMO states it is incorrectly identified in plaintiff Atrella Reynolds' complaint as "AAA Auto Club Enterprises," an allegedly non-existent entity. Reynolds' response, in part, states ACMO is not and never was a party to this litigation and thus "lacks standing for any legal input." (Doc. 92-1). ACMO has filed a reply ad
Summary: MEMORANDUM & ORDER DAVID R. HERNDON, Chief District Judge. This matter comes before the Court on Automobile Club of Missouri's ("ACMO") motion to dismiss (Doc. 77). In part, ACMO states it is incorrectly identified in plaintiff Atrella Reynolds' complaint as "AAA Auto Club Enterprises," an allegedly non-existent entity. Reynolds' response, in part, states ACMO is not and never was a party to this litigation and thus "lacks standing for any legal input." (Doc. 92-1). ACMO has filed a reply add..
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MEMORANDUM & ORDER
DAVID R. HERNDON, Chief District Judge.
This matter comes before the Court on Automobile Club of Missouri's ("ACMO") motion to dismiss (Doc. 77). In part, ACMO states it is incorrectly identified in plaintiff Atrella Reynolds' complaint as "AAA Auto Club Enterprises," an allegedly non-existent entity. Reynolds' response, in part, states ACMO is not and never was a party to this litigation and thus "lacks standing for any legal input." (Doc. 92-1). ACMO has filed a reply addressing Reynolds' above allegation, which the Court will consider (Doc. 97). ACMO attaches an affidavit of Carl Kraft, the manager of legal services for ACMO located at 12901 North Forty Drive, St. Louis, Missouri, 63141. Because ACMO submitted documents outside the pleading, the Court construes the motion to dismiss as one for summary judgment. See Fed.R.Civ.P. 12(b).
The Federal Rules of Civil Procedure forbid a district court from acting on a summary judgment motion without giving the nonmovant a reasonable opportunity to respond. Fed.R.Civ.P. 56. A motion for summary judgment should not be granted against a pro se litigant unless the pro se litigant receives clear notice of the need to file affidavits or other responsive materials and of the consequences of not responding. See Timms v. Frank, 953 F.2d 281, 284 (7th Cir. 1992). This "notice" should include a short, plain statement of the need to respond to a summary judgment motion, giving both the text of Rule 56(e) and an explanation of the rule in ordinary English. Id. If opposing counsel fails to provide the requisite notice then the district court should do so. Id.
Here, the Court must provide Reynolds with the proper notice as ACMO has not. Thus, the Court DIRECTS Reynolds to follow FEDERAL RULE OF CIVIL PROCEDURE 56, particularly Rule 56(e), in responding to the motion for summary judgment (Doc. 77). Rule 56(e) states:
(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.
Further, the Court ADVISES Reynolds that the failure to respond to the evidence presented in support of ACMO's motion for summary judgment with evidence of her own may result in the dismissal of her case with prejudice in favor of ACMO. Specifically, any factual assertion will be taken as true by the Court unless Reynolds submits her own affidavits or other documentary evidence contradicting the assertion. In other words, Reynolds cannot merely rely upon the allegations of her complaint to survive the motion for summary judgment. See Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996). A copy of Rule 56 of the Federal Rules of Civil Procedure is attached to this Order.
The Court ALLOWS Reynolds up to and including September 9, 2013, to respond to the motion or risk judgment being entered in favor of ACMO and against her.
IT IS SO ORDERED.
Rule 56. 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 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.
