United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
Pending before the Court is Defendant's Motion for Summary Judgment, (Doc. 66), Defendant's Motion for Summary Disposition of Defendant's Motion for Summary Judgment, (Doc. 71), and Plaintiff's Motion Regarding Attorney Fees and Court Costs. (Doc. 72).
I. Procedural Background
On June 19, 2012, Plaintiff filed a pro se Complaint alleging national origin and race discrimination in violation of Title VII of the Civil Rights Act of 1964. (Doc. 1). In her Complaint, Plaintiff describes herself as a dark-skin Hispanic woman. Plaintiff alleges that beginning in the fall of 2007; while she was employed with Defendant as a Community Education and Outreach Coordinator, she was subjected to a pattern of discrimination based upon her national origin and color, which ultimately resulted in her unlawful termination. This alleged harassment involved humiliating comments and false accusations that she could not perform her job.
Plaintiff further alleged that Defendant failed to assist her in gaining reemployment after her position was terminated and she has not been rehired by the Defendant despite available positions for which she is qualified.
On January 8, 2013, the Court granted Defendant's Motion to Dismiss, dismissing Plaintiff's Title VII claims arising prior to December 1, 2009 due to Plaintiff's failure to timely pursue her administrative remedies. (Doc. 12). The Court found that any allegations related to a hostile work environment or unlawful termination were untimely. However, the Court explained that any claims based on Defendant's failure to hire Plaintiff that occurred on or after December 1, 2009 were timely.
On February 8, 2013, Plaintiff filed a First Amended Complaint. (Doc. 13). In her First Amended Complaint, Plaintiff alleged a series of jobs that she applied for with Defendant including: a Housing Assistant job with the Housing Authority Department in October 2009; a Victim Advocate position with the County Attorney's office in November 2009; a Community Nutrition Worker III with the Health Department and a Housing Outreach Coordinator with the Housing Authority Department in July 2010; a Court Interpreter with the Arizona Superior Court in Cochise County in September 2010, January 2011 and a third time in December 2012; and finally an Indigent Defense Support Specialist with the Indigent Defense Coordinator's Office in July 2011. Plaintiff alleged that while she was qualified for all of these positions, she was not interviewed or hired based on national origin discrimination and retaliation for filing complaints regarding discriminatory conduct, in violation of Title VII of the Civil Rights Act of 1964.
On March 3, 2014, Defendant filed a Motion for Summary Judgment. (Doc. 66). On March 5, 2014, the Court issued a Notice, required under Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998), that informed Plaintiff of her obligation to respond to Defendant's Motion on or before April 8, 2014 and of the requirements under Federal Rule of Civil Procedure 56. (Doc. 69). After failing to file a response to Defendant's Motion, Defendant filed a Motion for Summary Disposition of Defendant's Motion for Summary Judgment on April 17, 2014. (Doc. 71). On May 9, 2014, Plaintiff filed a Motion Regarding Attorney Fees and Court Costs. (Doc. 72). Defendant filed a Response on May 12, 2014. (Doc. 73). Plaintiff has not filed a reply. To date, Plaintiff has not filed a response to Defendant's Summary Judgment Motion.
II. Motion for Summary Disposition
Defendant argues that due to Plaintiff's failure to file a response to Defendant's Summary Judgment Motion, Defendant's Motion should be summarily granted pursuant to LRCiv. 7.2(i). Plaintiff has not responded to this Motion.
Pursuant to Local Rule 7.2(i):
If a motion does not conform in all substantial respects with the requirements of this Local Rule, or if the unrepresented party or counsel does not serve and file the required answering memoranda, or if the unrepresented party or counsel fails to appear at the time and place for oral argument, such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.
LRCiv. 7.2(i). Plaintiff has failed to timely file a response to Defendant's Motion for Summary Judgment. While Plaintiff is representing herself, she is still bound by the Rules of Civil Procedure. See American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir.2000) (holding that the pro se litigant must follow court rules).
However, "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 whether genuine issues of material fact exist, would be inconsistent with Rule 56, hence impermissible under Rule 83." Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). Pursuant to Federal Rule of Civil Procedure 56, the moving party is only entitled to summary judgment if the party can establish that there are no issues of material facts requiring a trial. Id. Thus, the Court should deny a motion for summary judgment if the movant fails to establish the absence of triable issues. Id. As such, this Court shall not summarily grant Defendant's Motion based upon Plaintiff's failure to timely file a response to Defendant's Summary Judgment Motion.
III. Motion Regarding Attorney's Fees and Costs
Plaintiff has filed a Motion requesting that the Court direct that each party is responsible for their own attorney fees and court costs. Plaintiff explains that she is unemployed and it would be an undue hardship if she was required to pay Defendant's attorneys' fees. In response, Defendant argues that there has not been an entry of final judgment in this case and as such, any motion regarding attorney's fees is premature.
A motion for attorney's fees is due within 14 days after the entry of judgment and in any such motion, a party must specify the judgment, upon which the motion is based. Fed.R.Civ.P. 54(d)(2)(B); LRCiv. 54.2(b)(2). Since Plaintiff's Motion regarding attorneys' fees was filed before the entry of a judgment, it is premature. Moreover, ...