United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Plaintiff Vivian Epps has sued Defendant CVS Health
Corporation, alleging that she was injured at a local CVS
store in January 2017. Doc. 1. The parties have filed motions
for summary judgment. Docs. 71, 74. Plaintiff's motion
and response briefs fail to comply with the applicable rules.
Given her pro se status, Plaintiff shall have until
March 11, 2019 to file an appropriate
response to Defendant's summary judgment motion, and
until February 28, 2019 to file a new
summary judgment motion of her own, if she so chooses.
Summary Judgment Standards and Procedures.
Court previously directed Plaintiff to familiarize herself
with the Federal Rules of Civil Procedure and the Court's
Local Rules of Civil Procedure, both of which Plaintiff can
find on the Court's website at
www.azd.uscourts.gov. Doc. 24 at 3. The Court warned
Plaintiff that if she fails to comply with the rules or any
Court order, the Court may dismiss the action with prejudice.
Id.; Doc. 63; see Ferdik v. Bonzelet, 963
F.2d 1258, 1260 (9th Cir. 1992). Plaintiff has failed to
comply with the rules governing summary judgment. But instead
of dismissing this action, the Court will give Plaintiff some
additional time to file proper summary judgment briefs.
assist Plaintiff in this regard, the Court provides the
following procedural guidance. See Rand v. Rowland,
154 F.3d 952, 958 (9th Cir. 1998) (noting that the
“purpose of the Federal Rules to eliminate
‘procedural booby traps' which could prevent
‘unsophisticated litigants from ever having their day
in court'” (citations omitted)). Summary judgment
motions are governed in part by Federal Rule of Civil
Procedure 56, which provides that “[t]he 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.” Fed.R.Civ.P.
56(a). This means that if there is no real dispute about
facts that would affect the outcome of the case, the party
who requested summary judgment is entitled to judgment as a
matter of law, which would end the case.
56(c) requires the party asserting that a fact cannot be
disputed, or is genuinely disputed, to “support the
assertion by: (A) citing to particular parts of materials in
the record, . . or (B) showing that the materials cited do
not establish the absence or presence of a genuine
dispute[.]” Fed.R.Civ.P. 56(c)(1); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). This means
that in response to a defendant's summary judgment
motion, the plaintiff cannot simply rely on what the
complaint says, but instead must set forth specific facts
supported by evidence. Such evidence includes documents,
emails, depositions, admissions, interrogatory answers,
stipulations, and sworn testimony in the form of affidavits
or declarations. See Fed. R. Civ. P. 56(c)(1)(A).
The Court need consider only the cited materials in ruling on
a summary judgment motion. See Fed. R. Civ. P.
56(c)(3). 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
consider the fact undisputed for purposes of the motion and
grant summary judgment. See Fed. R. Civ. P. 56(e).
The granting of summary judgment against the plaintiff means
that the case will be dismissed and there will be no trial.
Rule of Civil Procedure 56.1 provides additional requirements
for summary judgment motions and responses. Local Rule 56.1
requires the parties to include a separate statement of facts
with their summary judgments motions, and a separate
controverting statement of facts with their responses to such
motions. LRCiv 56.1(a)-(b). Each material fact in the
separate statement must be set forth in a separately numbered
paragraph, and must refer to the specific portion of the
record where the fact finds support (for example, a document,
deposition, discovery response, etc.). Id. A failure
to submit a separate statement of facts in this form may
provide a basis for the denial of the summary judgment
motion. See LRCiv 56.1(a). The parties must also
cite to the specific paragraph in the statement of facts that
supports any factual claims made in their motions and
response briefs (i.e., their “memoranda of law”).
See LRCiv 56.1(e). The subsections of Local Rule
56.1 discussed in this paragraph provide as follows:
(a) Separate Statement of Facts. Any party
filing a motion for summary judgment must file a statement,
separate from the motion[, ] . . . setting forth each
material fact on which the party relies in support of the
motion. The separate statement should include only those
facts that the Court needs to decide the motion. Other
undisputed facts (such as those providing background about
the action or the parties) may be included in the [motion],
but should not be included in the separate statement of
facts. Each material fact in the separate statement must be
set forth in a separately numbered paragraph and must refer
to a specific admissible portion of the record where the fact
finds support (for example, affidavit, deposition, discovery
response, etc.). A failure to submit a separate statement of
facts in this form may constitute grounds for the denial of
(b) Controverting Statement of Facts. Any
party opposing a motion for summary judgment must file a
statement, separate from that party's [response], setting
forth: (1) for each paragraph of the moving party's
separate statement of facts, a correspondingly numbered
paragraph indicating whether the party disputes the statement
of fact set forth in that paragraph and a reference to the
specific admissible portion of the record supporting the
party's position if the fact is disputed; and (2) any
additional facts that establish a genuine issue of material
fact or otherwise preclude judgment in favor of the moving
party. Each additional fact must be set forth in a separately
numbered paragraph and must refer to a specific admissible
portion of the record where the fact finds support. No reply
statement of facts may be filed. . . . .
(e) Citations in Memoranda. Memoranda of law
filed in support of or in opposition to a motion for summary
judgment, including reply memoranda, must include citations
to the specific paragraph in the statement of facts that
supports assertions made in the memoranda regarding any
material fact on which the party relies in support of or in
opposition to the motion.
Plaintiff Has Failed to Comply with the Rules.
filed a separate statement of facts to support her summary
judgment motion (Doc. 75), but - in violation of Local Rule
56.1(a) - the facts alleged in the statement are not set
forth in separately numbered paragraphs, and the statement
does not cite to the specific parts of the record that
support the facts. Plaintiff's motion (Doc. 74) does not
cite to the specific paragraph in the statement of facts that
supports assertions made in the motion, in violation of Local
Rule 56.1(e). Although Plaintiff attached certain documents
to her responses to Defendant's summary judgment motion
(Docs. 73, 76), she failed to file a separate and complete
controverting statement of facts as required by Local Rule
is again warned that, although she is proceeding pro se, she
must become familiar with, and follow, all applicable rules.
See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1986) (“Pro se litigants must follow the same rules of
procedure that govern other litigants.”); Carter v.
Comm'r of Internal Revenue, 784 F.2d 1006, 1008 (9th
Cir. 1986) (“Although pro se, [plaintiff] is expected
to abide by the rules of the court in which he
litigates.”). If Plaintiff fails to properly respond to
Defendant's motion (Doc. 71), the Court may grant summary
judgment against Plaintiff and terminate this case.