Opinion
Case No. 8:01CV580
August 2, 2002
ORDER
This matter is before the court on the following filings by the plaintiff, Gary L. Abraham: (1) Filing No. 16, the motion for a protective order; (2) Filing No. 20, the Objection to the defendant's motion to dismiss the Amended Complaint; (3) Filing No. 22, the motion to instruct the plaintiff regarding the filing of his index of evidence; and (4) Filing No. 34, the motion for summary judgment. Filing Nos. 16, 20, 22 and 34 are denied, as discussed below.
In Filing No. 16, the plaintiff requests a protective order directing the defendant to cease collection of statements and reports from the plaintiff's creditors. That motion is denied because the defendant has a right to investigate matters which may lead to admissible evidence in this case. There is no basis in the record or the applicable law for requiring the defendant to cease making inquiries about the plaintiff.
Filing No. 20, the plaintiff's Objection to the defendant's motion to dismiss the Amended Complaint, is overruled as moot. The court has entered an Order (Filing No. 32) denying the defendant's motion to dismiss. Motions to dismiss another party's pleadings do not constitute harassment but are instead commonplace in litigation.
Regarding Filing No. 22, the plaintiff is encouraged to request a copy of the local rules of this court from the Clerk of Court. There is no charge, and the local rules address such matters as the filing of an index of evidence. Generally, however, items other than paper exhibits should not be filed with the court. In particular, the plaintiff should not file the currency mentioned in Filing No. 22 or the item he has indicated is being preserved in a plastic bag. Filing No. 22 will be denied because the proposed exhibits discussed in that motion should not be filed with the court at this time. Any further procedural questions may be raised at the conference which Magistrate Judge Kathleen A. Jaudzemis will be conducting in her courtroom on August 14, 2002 at 2:30 p.m.
Finally, Filing No. 34, the plaintiff's motion for summary judgment, is denied. With respect to a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. See, e.g., Brandt v. Davis, 191 F.3d 887, 892 (8th Cir. 1999) ("Summary judgment is properly granted [only] when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law."). In addition, when reviewing the record in connection with a pending motion for summary judgment, the court may consider only materials which are admissible or usable at trial. Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir. 2001). Because the record in this case contains many issues of fact, the court cannot enter summary judgment.
THEREFORE, IT IS ORDERED:
(1) That Filing No. 16, the plaintiff's motion for a protective order, is denied;
(2) That Filing No. 20, the plaintiff's Objection to the defendant's motion to dismiss, is denied as moot;
(3) That Filing No. 22, the motion to instruct the plaintiff regarding the filing of his index of evidence, is denied because the items referenced in the motion should not be filed with the court; and
(4) That Filing No. 34, the plaintiff's motion for summary judgment, is denied.