The opinion of the court was delivered by: The Honorable Clifford J. Proud, Magistrate Judge presiding
Before the Court is plaintiff's motion to continue the bench trial set to commence Monday, January 8, 2007, and for leave to file a motion for summary judgment. (Doc. 51).
Plaintiff notes that the Court has yet to rule on defendant's motion for summary judgment, which includes an argument that plaintiff has failed to exhaust administrative remedies. The Court has been awaiting plaintiff's response to defendant's motion; that response was just filed on December 21, 2006. Although the Court is prepared to rule quickly on defendant's motion, because plaintiff's response was filed at the beginning of the holiday season, defendant will be given until January 11, 2007, to file any reply to plaintiff's response. Consequently, the January 8, 2007, trial setting will necessarily have to be reset.
Insofar as plaintiff desires to file his own motion for summary judgment, the Court appreciates that the parties were hastily exchanging discovery after the amended complaint was permitted. Therefore, plaintiff will be permitted to file a motion for summary judgment. However, a ruling on defendant's motion for summary judgment is imminent and will not be stayed if plaintiff files a motion for summary judgment. Plaintiff has already filed his response to defendant's motion, and he will not be given a "second bite at the apple."
IT IS THEREFORE ORDERED that plaintiff's motion (Doc. 51) is GRANTED, in that:
(1) the January 8, 2007, trial setting is CANCELLED, to be reset by separate notice;
(2) Plaintiff is granted leave to file a Motion for Summary Judgment on or before January 18, 2007; no extensions of this deadline will be granted.
IT IS FURTHER ORDERED that defendant shall have through January 11, 2007, to file a reply to plaintinff's response to defendant's motion for summary judgment; no extensions of this deadline will be granted.
CLIFFORD J. PROUD U. S. MAGISTRATE JUDGE
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