Opinion
2:11-cv-01858-JAD-VCF
02-02-2017
Nathaniel Johnson, Plaintiff v. Doe Kelly, et al., Defendants
Order Denying Motion to Enter Summary Judgment By Default Based on L.R. 7-2 [ECF No. 93]
Defendants moved for summary judgment on December 20, 2016. When the plaintiff failed to oppose the motion by the response deadline, defendants filed a separate motion asking the court to grant the motion under Local Rule 7-2, which allows the court to grant a motion when it is unopposed—except when that motion is one for attorneys fees or summary judgment.
ECF No. 91.
In urging the court to enter summary judgment by default, defendants rely on an outdated and superseded version of Local Rule 7-2. Although Local Rule 7-2(d) previously suggested that the court could grant any unopposed motion, the local rules were amended nine months ago. The new version of the rule now clearly says: "The failure of an opposing party to file points and authorities in response to any motion, except a motion under Fed. R. Civ. P. 56 . . . , constitutes a consent to the granting of the motion." The local rule was amended to reflect the Ninth Circuit's ruling in Heinemann v. Satterberg that the failure to oppose a motion for summary judgment does not permit the court to enter summary judgment by default by applying local rules like 7-2(d).
L.R. 7-2(d) (emphasis added), available on the court's website at: http://www.nvd.uscourts.gov/
Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) ("Because this local rule conflicts with the Federal Rule, it cannot provide a valid basis for granting a motion for summary judgment.").
See Summary of Amendments to Local Civil Rules, available at http://www.nvd.uscourts.gov/Files/Summary%20of%20Amendments%20to%20Local%20Civil%20Rules.pdf (explaining, "Subsection (d) is amended to exclude motions for summary judgment and motions for attorney's fees from those that automatically may be granted if unopposed."). --------
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion Pursuant to Local Rule 7-2 in Support of Motion for Summary Judgment [ECF No. 93] is DENIED. The court will address the motion for summary judgment [ECF No. 91] on its merits in due course.
DATED: February 2, 2017
/s/_________
Jennifer A. Dorsey
United States District Judge