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Sweet v. Clark County WA Office of Indigent Defense

United States District Court, D. Oregon, Portland Division

June 19, 2018

DIANE R. SWEET, Plaintiff,
v.
CLARK COUNTY WA OFFICE OF INDIGENT DEFENSE, General Services Department, Clark County WA, ANN CHRISTIAN, Clark County WA Indigent Defense Manager, and ANGELA COLAIUTA, Clark County WA Indigent Defense Coordinator, Defendants.

          FINDINGS AND RECOMMENDATIONS

          YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE

         Pro se plaintiff Diane R. Sweet (“Sweet”) is an attorney admitted to practice in Washington State. She has brought this breach of contract action against the Clark County WA Office of Indigent Defense and two of its employees, Ann Christian and Angela Colaiuta, (collectively “defendants”). Compl. 2, ECF #2. Before the court is Sweet's motion for summary judgment (ECF #17) and defendants' motion to dismiss or transfer for improper venue (ECF #19). Sweet has filed neither a response to defendant's motion to dismiss nor a reply in support of her motion for summary judgment. For the reasons set forth below, Sweet's motion for summary judgment (ECF #17) should be DENIED, defendants' motion to dismiss (ECF #19) should be GRANTED, and this case should be dismissed.

         PROCEDURAL HISTORY

         Defendants filed an answer to the complaint on March 8, 2018. Answer, ECF #14. That same day-before the court had an opportunity to issue a discovery and pretrial scheduling order-Sweet moved for summary judgment. Pl.'s Mot. Summ. J., ECF #17; LR 16-1(d). The court issued its discovery and pretrial scheduling order the next day, setting the deadline to complete discovery for July 9, 2018. ECF #15.

         Defendants filed an answer on March 8, 2018. ECF #14. On March 12, 2018, defendants substituted counsel (ECF #18), and approximately two weeks later, defendants' new counsel moved to dismiss or transfer for improper venue. ECF #19.

         Defendants responded to Sweet's motion for summary judgment on March 29, 2018, arguing both that it is premature and that it fails on the merits. (ECF #21). Although Sweet has been given ample opportunity, she has not responded to defendants' motion to dismiss or filed a reply to defendants' response to her motion for summary judgment.

         FINDINGS

         I. Sweet's Motion for Summary Judgment

         The first motion filed in this case was Sweet's motion for summary judgment. It should be denied because it is premature. Sweet has also failed to comply with the certification requirement of Local Rule 7-1.

         A. Prematurity

         Although FRCP 56 allows a party to file a motion for summary judgment “at any time until 30 days after the close of discovery, ” the rule also allows the court to continue or deny the motion when “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition . . . .” FRCP 56(b), (d)(1); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986) (“[S]ummary judgment [may] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.”); see also Glad-A-Way Gardens, Inc. v. Lynn Mayer's Great Lakes Glads, Inc., 52 F.3d 333 (9th Cir. 1995); Texas Partners v. Conrock Co., 685 F.2d 1116, 1119 (9th Cir. 1982), cert. den., 460 U.S. 1029 (1983); Program Eng'g, Inc. v. Triangle Publications, Inc., 634 F.2d 1188, 1193 (9th Cir. 1980).

         Here, defendants declare they have had no opportunity to conduct any discovery and that given the ambiguity of Sweet's handwritten complaint, discovery is needed to both identify the nature of the claims and provide a defense. Decl. of Curtis Burns ¶ 8, ECF #22. This court agrees. Sweet's motion for summary judgment is premature and should be denied on that basis.

         B. Lack of Certification

         Litigants must comply with the district's local rules. E.g., Mehr v. Cty. of Orange, 484 Fed.Appx. 162, 163 (9th Cir. 2012); Miranda v. S. Pac. Transp. Co., 710 F.2d 516, 521 (9th Cir. 1983). Sweet did not comply with the certification requirement of Local Rule 7-1. Local Rule 7-1(a)(3) allows the court to ‚Äúdeny any motion that fails to meet this ...


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