Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 United States of America, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court are Defendant's motion for summary judgment and motion for entry of judgment pursuant t o Rule 7.2(i), Rules of Practice of the United States District Court for the District of Arizona ("Local Rules"). Docs . ##59, 63. For the reasons set forth below, the Court will grant the motion for summary judgment and deny the motion for entry of judgment. On M ay 26, 2005, D efendant filed the present motion for summary judgment on Plaintiff's medical malpractice claim on the ground that Plaintiff lacks the expert testimony necessary to prevail on the claim. D oc. #59. On M ay 31, 2005, United States M agistrate v. Thomas Ching, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-02-1959-PHX-DGC (M S) ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Judge M orton Sitver issued an order advising Plaintiff of the nature of a motion for summary judgment and warning him that the failure to respond to Defendant's motion may result in the granting of the motion. Doc. #61. To date, Plaintiff has not filed a response to the motion.

Case 2:02-cv-01959-DGC-MS

Document 64

Filed 08/25/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant filed the present motion for ent ry of judgment on August 12, 2005. Doc. #63. judgment motion. Id. The Court, however, may not grant a motion for summary judgment as a sanction for the nonmoving party's failure to respond. T he Court may grant a motion for summary judgment under Federal Rule of Civil Procedure 56 only if the moving p art y has shown that t here is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c), (e) ("If the adverse party does not . . . respond, summary judgment, if appropriate, shall be entered against the adverse party.") (emphasis added); Henry v. Gill, 983 F.2d 943, 950 (9th Cir. 1993) ("A local rule that requires the entry of summary judgment simply because no papers opposing the motion are filed or served, and without regard to whet her genuine issues of material fact exist, would be inconsistent with Rule 56, hence impermissible under Rule 83."); Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995) ("[W]e have held that a motion for summary judgment cannot be granted simply because the op p osing party violated a local rule.") (citing Henry); Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) ("Several of our prior decisions have made clear that a nonmoving party's failure to comply with local rules does not excuse the moving party's affirmative duty under Rule 56 to demonstrate its entitlement to judgment as a matter of law. Short of t hat , w e turn the summary judgment rule into a mere sanction for Defendant moves the Court to summarily grant t he motion for summary pursuant to Local Rule 7.2(i) based on Plaintiff's failure t o respond to the

noncompliance with local rules.") (citing Henry and Marshall).1 The Court has reviewed the motion for summary judgment and finds that it is welltaken. The Court will accordingly grant the motion on the merits under Rule 56. See F ed. R. Civ. P. 56(c), (e). IT IS ORDERED: Cf. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (holding that the district court did not abuse its discretion in summarily granting the defendant s ' motion to dismiss pursuant to a local rule based on the plaintiff's failure to respond to the motion).
-21

Case 2:02-cv-01959-DGC-MS

Document 64

Filed 08/25/2005

Page 2 of 3

1 2

1. 2.

Defendant's motion for summary judgment (Doc. #59) is granted. D efendant's motion for entry of judgment pursuant to Local Rule 7.2(i)

3 (Doc. #63) is denied. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-3-

3.

The Clerk of Court shall terminate this action.

DATED this 23rd day of August, 2005.

Case 2:02-cv-01959-DGC-MS

Document 64

Filed 08/25/2005

Page 3 of 3