Opinion
Civil Action No. 3:04-CV-2348-D.
August 23, 2005
ORDER
In this removed action challenging an appraisal award entered by final judgment in a prior state-court lawsuit, defendant filed a motion for summary judgment on July 12, 2005. Plaintiff's response was due August 1, 2005, 20 days after defendant filed its motion. See N.D. Tex. Civ. R. 7.1(e) ("A response and brief to an opposed motion must be filed within 20 days from the date the motion is filed."). Plaintiff has failed, however, to respond to the motion. Although plaintiff's failure to respond to the motion does not permit the court to enter a "default" summary judgment, the court may accept as true all of defendant's undisputed facts. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). Moreover, "[a] summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence." Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)).
Defendant relies on defenses as to which it will have the burden of proof at trial. Therefore, to be entitled to summary judgment, it must "must establish `beyond peradventure all of the essential elements of the . . . defense[s].'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Defendant has established on several grounds that plaintiff is legally precluded from seeking to set aside in this lawsuit the appraisal award previously entered by final judgment of the 191st Judicial District Court. Accordingly, defendant's July 12, 2005 motion for summary judgment is granted, and this action is dismissed with prejudice by judgment filed today.
SO ORDERED.