The defendants filed an opposition to the plaintiff's motion for judgment. The defendants argue that the plaintiff's motion is procedurally deficient and premature. Specifically, the plaintiff failed to file required documents to support the motion, filed documents late, and filed the motion before the pleadings have closed and discovery has begun. The defendants request that the court deny the plaintiff's motion for judgment.
The defendants filed an opposition to the plaintiff's motion for judgment. The defendants argue that the plaintiff's motion is procedurally deficient and premature. Specifically, the plaintiff failed to file required documents to support the motion, filed documents late, and filed the motion before the pleadings have closed and discovery has begun. The defendants request that the court deny the plaintiff's motion for judgment.
Original Description:
OPPOSITION to 33 Motion for Judgment by Brian Kelly, Mark Tweety. (Besmer, Matthew)
The defendants filed an opposition to the plaintiff's motion for judgment. The defendants argue that the plaintiff's motion is procedurally deficient and premature. Specifically, the plaintiff failed to file required documents to support the motion, filed documents late, and filed the motion before the pleadings have closed and discovery has begun. The defendants request that the court deny the plaintiff's motion for judgment.
The defendants filed an opposition to the plaintiff's motion for judgment. The defendants argue that the plaintiff's motion is procedurally deficient and premature. Specifically, the plaintiff failed to file required documents to support the motion, filed documents late, and filed the motion before the pleadings have closed and discovery has begun. The defendants request that the court deny the plaintiff's motion for judgment.
Case 2:14-cv-00751-GEB-AC Document 35 Filed 07/30/14 Page 1 of 4
1 2 3 4 5 6 7
KAMALA D. HARRIS, State Bar No. 146672
Attorney General of California SCOTT H. WYCKOFF, State Bar No. 191367 Supervising Deputy Attorney General MATTHEW T. BESMER, State Bar No. 269138 Deputy Attorney General 2550 Mariposa Mall, Room 5090 Fresno, CA 93721 Telephone: (559) 477-1680 Fax: (559) 445-5106 E-mail: Matthew.Besmer@doj.ca.gov Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
10 11
REHAN SHEIKH,
12 13
v.
2:14-cv-751 GEB AC PS Plaintiff, DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (Doc. 33)
14 15 16
Date: Time: Dept.: Judge:
BRIAN KELLY Secretary, California State
Transportation Agency and Mark Tweety, Manager, Department of Motor Vehicles,
August 13, 2014
10:00 a.m. 26, 8th Floor Honorable Allison Claire
Defendants. Trial Date:
TBA Action Filed: March 24, 2014
17 18 19 20
On July 14, 2014, Plaintiff filed a Motion for Judgment (Doc. 33) set for hearing on
21
August 13, 2014. On July 24, 2014, Plaintiff filed a Memorandum of Points and Authorities In
22
support of Plaintiffs Motion for Declaratory and Injunctive Relief (Doc. 34). It appears that the
23
memorandum of points and authorities is in support of the Motion for Judgment. Plaintiff is
24
requesting entry of declaratory relief, damages, and injunctive relief. Doc. 34, 14:26-15:6.
25
Although not captioned as such, Defendants construe Plaintiffs motion as one for summary
26
judgment under Rule 56. In this regard, the motion is procedurally deficient, it is premature, and
27
should be denied.
28
1 DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (2:14-cv-751 GEB AC PS)
Case 2:14-cv-00751-GEB-AC Document 35 Filed 07/30/14 Page 2 of 4
1
Plaintiff has not filed a statement of undisputed facts as required by Local Rule 260.
Moreover, Plaintiffs supporting memorandum (Doc. 34) is untimely because it was filed only 20
days before the August 13, 2014 hearing. Local Rule 230(b) requires moving papers to be filed
28 days before the hearing. Additionally, Plaintiffs motion lacks evidentiary support. And
Defendants dispute Plaintiffs claims.
Further, the motion is premature because the pleadings have not yet closed, and discovery
has not yet begun. See Fed. R. Civ. P. 56 (d) (a court may defer or deny a motion for summary
judgment, allow time for discovery, or issue other appropriate relief when the nonmovant cannot
present facts essential to justify its opposition). Normally, an affidavit is required to invoke the
10
remedies provided under Rule 56(d). See Fed. R. Civ. P. 56 (d). Defendants, however, request
11
that the Court take judicial notice of the status of the pleadings and discovery under Federal Rule
12
of Evidence 201.1 Further complicating matters is that Plaintiff improperly filed a first amended
13
complaint (Doc. 32) on July 14, 2014, the same day he filed his Motion for Judgment.2 The
14
pleadings need to close, and discovery needs to at least open, before Defendants can properly
15
oppose a motion for summary judgment.
16
Based on the foregoing, Defendants Motion for Judgment should be denied. To the extent
17
that Plaintiffs motion is construed as an opposition to Defendants Motion to Dismiss (Doc. 20),
18
Defendants will timely file their reply.
19 20 21 22 23 24 25 26 27 28
The pleadings have not yet closed and Defendants have not yet filed an answer. See Docs. 21 and 30 (Defendants motion to dismiss under Rule 12(b)(1) and (6) is pending before the Court and is set for hearing on August 13, 2014). Further discovery has not yet opened. See Fed. R. Civ. P. 26 (discovery opens after the Rule 26(f) conference, or as stipulated by the parties or ordered by the court); see Doc. 4 (status conference scheduled for August 27, 2014). 2 Plaintiff was required to seek leave of court before filing an amended complaint because the time to amend as a matter of course had expired. Defendants served their motion to dismiss on May 7, 2014, and Plaintiff filed his amended complaint on July 14, 2014. See Fed. R. Civ. P. 15(a)(1) (as a matter of course, amendments may be made 21 days after service of a motion under Rule 12(b)). 2 DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (2:14-cv-751 GEB AC PS)
Case 2:14-cv-00751-GEB-AC Document 35 Filed 07/30/14 Page 3 of 4
1
Dated: July 30, 2014
Respectfully submitted,
KAMALA D. HARRIS Attorney General of California SCOTT H. WYCKOFF Supervising Deputy Attorney General
3 4
/S/ Matthew T. Besmer
MATTHEW T. BESMER Deputy Attorney General Attorneys for Defendants
3 DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (2:14-cv-751 GEB AC PS)
Case 2:14-cv-00751-GEB-AC Document 35 Filed 07/30/14 Page 4 of 4
1 2 3 4 5 6 7 8 9 10 11 12 13
DECLARATION OF SERVICE BY U.S. MAIL
Case Name: No.:
Sheikh, Rehan v. Kelly, Brian, et al
2:14-cv-751 GEB AC PS
I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On July 30, 2014, I served the attached DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (Doc. 33) by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 2550 Mariposa Mall, Room 5090, Fresno, CA 93721, addressed as follows: Rehan Sheikh 1219 W. El Monte Street Stockton, CA 95207
14 15 16 17 18 19
I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on July 30, 2014, at Fresno, California. Carol Borunda ________________________________ Declarant
/s/ Carol Borunda
____________________________________ Signature
20 21 22 23 24 25 26 27 28
4 DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (2:14-cv-751 GEB AC PS)
