United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi, United States District Judge.
At
issue are Defendant Capital One Financial Corporation's
Motion for Summary Judgment (Doc. 56); pro se
Plaintiff Kathryn Marie Nelson's Seventh Motion to Extend
Time to Respond to Defendant's Motion for Summary
Judgment (Doc. 67); and Plaintiff's Motion to Allow
Non-Electronic Filing of Pictures and Audio Recordings (Doc.
66).
Defendant
timely filed a Motion for Summary Judgment on January 25,
2019. (Doc. 56.) Plaintiff filed three prior Motions to
Extend Time to Respond to Defendant's Motion for Summary
Judgment, and the Court granted all of them, ultimately
extending the Response deadline to April 29, 2019-more than
three months after Defendant filed its Motion for Summary
Judgment. (Docs. 58, 59, 60, 61, 63, 65.) Taking into
consideration Defendant's objections (Doc. 64) to
Plaintiff's repeated requests for an extension to the
Response deadline on tenuous grounds, in its latest Order,
the Court stated that no further extensions to the Response
deadline would be granted. (Doc. 65.)
On
April 8, 2019, Plaintiff also filed a Motion to Exceed Page
Limit for Her Response to Defendant's Motion for Summary
Judgment, asking for the Court's leave to file a 57-page
Response. (Doc. 62.) Defendant's Motion contained only 17
pages-within the Court's page limit, see LRCiv
7.2(e)-and the present case is not complex. However,
considering Plaintiff is proceeding pro se, the
Court granted Plaintiff leave to exceed the page limit by ten
pages, for a brief of 27 pages in length.
Now, on
the thrice-extended deadline for filing her Response to
Defendant's Motion for Summary Judgment, Plaintiff has
filed another Motion to Extend Time to Respond (Doc. 67). As
the Court explicitly warned Plaintiff (Doc. 65), the Court
will not grant another extension of time, particularly where
the reasons are as tenuous now as they have been in
Plaintiff's prior motions. At some point-and that point
has already passed- Plaintiff's substantial delay in
meeting her obligations in this case results in a waste of
judicial resources and prejudice to Defendant, the moving
party here. See Henderson v. Duncan, 779 F.2d 1421,
1423 (9th Cir. 1986) (affirming dismissal of a case for the
plaintiff's lack of prosecution).
This is
not solely a question of Plaintiff's failure to prosecute
her case, but also her failure to timely respond to a
dispositive motion. Local Rule 7.2(i) provides that a
party's failure to timely file a responsive brief
“may be deemed a consent to the denial or granting of
the motion and the Court may dispose of the motion
summarily.” At the Rule 16 Scheduling Conference and in
prior Orders, the Court has repeatedly warned Plaintiff of
her obligations to timely respond to motions and comply with
all applicable Rules and Court Orders and that the
consequences of failing to respond to a dispositive motion
include the granting of the motion and dismissal of the case.
Moreover, the Court granted three requests by Plaintiff to
extend the Response deadline even though they were all on
weak grounds, including that Plaintiff did not see
Defendant's Motion for Summary Judgment until it was
filed-which is always the case-and that this case is
particularly complex-which is not true. (See, e.g.,
Doc. 58 at 2.)
On the
deadline to file a Response, Plaintiff filed an
“incomplete” Response. (Doc. 68.) The document is
38 pages in length, far exceeding the page limit set by the
Court, and even so contains no citation to the evidence as
required by Federal Rule of Civil Procedure 56(c)(1)(A). The
Court must strike the “incomplete” Response both
for violating the Court-ordered page limit and for failing to
comply with Rule 56.
Plaintiff's
pro se status does not provide an excuse for her
failure to comply with Scheduling Order deadlines and Court
rules. See Am. Ass'n of Naturopathic Physicians v.
Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000) (noting
that pro se litigants are not excused from following
court rules); Carter v. Comm'r of Internal
Revenue, 784 F.2d 1006, 1008-09 (9th Cir. 1986) (same).
Three months have passed since Defendant filed a Motion for
Summary Judgment and, after repeated extensions to the
deadline, Plaintiff has failed to timely file a Response that
is even close to complying with the applicable requirements.
Because the Court warned Plaintiff of the consequences of
failing to timely file responsive briefs in this matter and
warned Plaintiff that it would not grant any further
extensions for the tenuous reasons Plaintiff has presented,
the Court will now grant Defendant summary disposition of its
Motion for Summary Judgment under Local Rule 7.2(i). See
Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994)
(per curiam) (concluding that the pro se
plaintiff's failure to timely respond to the
defendant's motion for summary judgment when the court
had warned plaintiff of the consequence of a failure to
respond warranted granting the motion for summary judgment in
the defendant's favor under the applicable Local Rule).
IT IS
THEREFORE ORDERED striking Plaintiff's
“incomplete” Response to Motion for Summary
Judgment (Doc. 68).
IT IS
FURTHER ORDERED granting Defendant's Motion for Summary
Judgment (Doc. 56).
IT IS
FURTHER ORDERED denying Plaintiff's Seventh Motion to
Extend Time to Respond to Defendant's Motion for Summary
Judgment (Doc. 67).
IT IS
FURTHER ORDERED denying as moot Plaintiff's Motion to
Allow NonElectronic Filing of Pictures and Audio Recordings
(Doc. 66)
IT IS
FURTHER ORDERED directing the Clerk of Court to enter
judgment in ...