Summary
recognizing that "[t]here is general agreement that a summary judgment cannot be entered for part of a claim" but that Rule 56(d) permits a court to enter an order deeming certain facts established for trial
Summary of this case from United Magazines v. Murdoch Magazines Distrib.Opinion
00 Civ. 1374 (MBM)
November 1, 2001
Beverly A. Riddle, New York, NY, Plaintiff pro se.
Kelly A. Ryan, Esq., Grotta Glassman Hoffman Roseland NJ, Attorneys for Defendants.
OPINION AND ORDER
This case, all too frequently before the court, is here again on plaintiff's purported motion under Fed.R.Civ.P. 12(f) to strike defenses in defendants' answer. For the reasons set forth below, the motion is denied, and plaintiff is directed not to file any further substantive motions until after the close of discovery.
To the extent that plaintiff is actually relying on Rule 12(f), the only rule she cites, her motion is plainly untimely, and is denied. That Rule provides that motions to strike addressed to a pleading that itself requires no responsive pleading — such as defendants' answer — must be served within 20 days of service of that pleading. That deadline has long since passed.
However, I am obligated not to hold a pro se party to the technical standard that might be appropriate for a lawyer, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), and to give a pro se party's papers a close and sympathetic reading, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and so I must consider whether plaintiff might rely on another Rule as the basis for her motion. The only other Rule that suggests itself is Rule 56, the Rule that governs summary judgment motions. Thus, plaintiff's motion may be analyzed as an application for summary judgment as to certain issues.
Plaintiff's motion seeks an order that would not seem to resolve any claim in its entirety, but rather appears directed at particular defenses or factual issues. There is general agreement that a summary judgment cannot be entered for part of a claim. See, e.g., Primavera Familienstifung v. Askin, 130 F. Supp.2d 450, 539 (S.D.N.Y. 2001). and authorities cited therein. Rule 56(d) does permit a court to which a summary motion is addressed to "make an order specifying the facts that appear without substantial controversy" and to enter an order deeming such facts established for purposes of trial. However, I agree with Judge Koeltl's characteristically persuasive reasoning in S.E.C. v. Thrasher, 152 F. Supp.2d 291, 296-97 (S.D.N.Y. 2001), which shows that that feature of the Rule is designed to be used only in response to a proper motion for summary judgment, and only when such an order would be helpful to the progress of the litigation. I agree also with his conclusion that the Rule does not permit a party to apply for such an order in the first instance.
Even if plaintiff's papers could be read as a motion for summary judgment as to an entire claim, it is plain from the face of those papers that such relief should be denied. Plaintiff simply presents a tendentious reading of what she claims are statements by defendants that constitute admissions or otherwise undercut defendants' position, and demands that her reading of these statements be accepted and govern the future course of the litigation. The motion is plainly premature, and seems designed to do little but burden the court and defendants.
For the above reasons, plaintiff's motion is denied in all respects without prejudice to renewal as part of a proper summary judgment motion, if warranted, following the close of discovery. Because plaintiff's submissions are burdensome for both the court and her adversary, plaintiff is directed not to file any further substantive motions before the close of discovery without leave of the court. Any unauthorized filings will be returned unread.
SO ORDERED