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HILEMAN v. MAZE
July 1, 2005.
SUSAN C. HILEMAN, Plaintiff,
LOUIS MAZE, Defendant.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
The Court takes up this matter for purposes of docket control.
The FEDERAL RULES OF CIVIL PROCEDURE and case law forbid a
district court from acting on a summary judgment motion without
giving the nonparty a reasonable opportunity to respond. FED. R.
CIV. P. 56; see Timms v. Frank, 953 F.2d 281, 284 (7thp>
Cir. 1992). A motion for summary judgment should not be granted
against a pro se litigant unless the pro se litigant receives
clear notice of the need to file affidavits or other responsive
materials and of the consequences of not responding. See Timms,
953 F.2d at 284; Lewis v. Faulkner, 689 F.2d 100, 102
(7thp> Cir. 1982). This "notice" should come from opposing
counsel and should include a short, plain statement of the need
to respond to a summary judgment motion, giving both the text of
RULE 56(e) and an explanation of the rule in ordinary English.
Id. If opposing counsel fails to provide the requisite notice
then the district court should do so. Id.
In this case, Plaintiff has moved for partial summary judgment
but has failed to provide pro se Defendant Louis Maze with the
requisite Timms notice. Therefore, the Court must provide the
proper notice and DIRECTS Defendant to follow FEDERAL RULE OF
CIVIL PROCEDURE 56(e) in responding to the motion for summary
judgment. RULE 56(e) states:
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show
affirmatively that the affiant is competent to
testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto
or served therewith. The court may permit affidavits
to be supplemented or opposed by depositions, answers
to interrogatories, or further affidavits. When a
motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest
upon the mere allegations or denials of the adverse
party's pleading, but the adverse party's response,
by affidavits or otherwise specifically provided by
in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the
adverse party does not so respond, summary judgment,
if appropriate, shall be entered against the adverse
Further, the Court ADVISES Defendant that if he does not
respond with his own evidence to Plaintiff's evidence, if any, in
support of summary judgment then summary judgment may be granted
in Plaintiff's favor. Specifically, any factual assertion will be
taken as true by the Court unless Defendant submits his own
affidavits or other documentary evidence contradicting the
assertion. In other words, Defendant cannot merely rely on mere
allegations to survive the motion for summary judgment. See
Bryant v. Madigan, 84 F.3d 246, 248 (7thp> Cir. 1996). Because this Timms notice has been issued within a short time
of the filing of Plaintiff's summary judgment motion, Defendant
Maze's response time will still be calculated from the date
Plaintiff's motion was filed.
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