Opinion
Civil Action No. 05-cv-01691-EWN-OES.
November 23, 2005
ORDER
Service of process has been waived in this case by defendants Colorado Department of Corrections and Joe Ortiz, but they have not appeared in this matter and the deadline for them to do so has not yet passed. Counsel on their behalf has also not appeared of record. Additionally, waiver of service of process upon defendant Anthony A. Decesaro has not been given, and service by the United States Marshal has not yet been completed. Therefore, this court lacks personal jurisdiction over defendant Decesaro. Finally, while the plaintiff has served copies of his currently pending motions upon the Colorado Attorney General's office, that office has not yet indicated it is accepting representation of these three defendants nor has it appeared as counsel of record on their behalf. Plaintiff has provided no proof that he has served these documents upon the defendants individually.
The Federal Rules of Civil Procedure provide that "[n]o preliminary injunction shall be issued without notice to the adverse party. FED.R.CIV.P. 65(a)(1). A Motion For Summary Judgment must be served upon the opposing party. See FED.R.CIV.P. 5(a)
Accordingly, based on the current record herein, plaintiff's Motion For Temporary Injunction [Filed October 17, 2005; Docket #18], Motion For Summary Judgment [Filed November 4, 2005; Docket #24], and Motion For Temporary Injunction [Filed November 21, 2005; Docket #33] are all DENIED, without prejudice, as premature. Case management issues such as the scope and timing of the filing of pretrial motions will be addressed at the Preliminary Scheduling/Status Conference to be held on December 20, 2005, at 9:45 a.m., as set by the court's Order of September 30, 2005.