Opinion
Civil Action No. 3:01-CV-0709-R
April 2, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Scheduling Order, filed May 8, 2001, Plaintiffs Motion to Strike Defendant Southwestern Bell Telephone Company's Motion for Summary Judgment, Supporting Brief, and Appendix, filed February 27, 2002, is before this Court for hearing, if necessary, and for recommendation. Having carefully considered the applicable authorities and the pleadings now on file, the Court recommends that the motion be GRANTED.
The Plaintiff moves the Court to strike the Defendant's motion for summary judgment because the motion fails to conform to the filing requirements of Local Rule 56 and the District Court's Scheduling Order of May 8, 2001. ( P.'s Mot. at 1-2.) Specifically, the Plaintiff contends that the Defendant's motion for summary judgment: (1) fails to cite the motion's factual background to a numbered appendix, (2) exceeds the 40-page limit for the brief, (3) fails to provide a numbered appendix, and (4) exceeds the page limit for the appendix. ( Id . at 2.) The Defendant does not contest that its summary judgment brief and appendix fail to conform to the requirements of Local Rule 56 and the District Court's Scheduling Order. ( D.'s Resp. at 2.) In fact, the Defendant has subsequently filed a motion for leave to file a supplemental summary judgment brief and appendix, which purport to cure the defects in the original summary judgment brief and appendix. The Defendant's motion for leave to file is currently pending before the District Court. As such, the Plaintiffs motion to strike should be GRANTED.
For the foregoing reasons, the Court recommends that the Plaintiff's motion to strike be GRANTED. This recommendation does not affect the merits of the Defendant's pending motion for leave to file.
SO RECOMMENDED.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).