Opinion
23-cv-1676-BAS-DEB
10-17-2023
DEAN L. KNUTH, Plaintiff, v. CAP PATROL, LLC OHIO, et al., Defendants.
ORDER DENYING PLAINTIFF'S PARTIAL MOTION FOR SUMMARY JUDGMENT (ECF No. 5)
HON. CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE.
Plaintiff commenced this action a little over a month ago when he filed his Complaint, at which point the Clerk of Court issued a summons. (ECF Nos. 1-2.) Yesterday, Plaintiff filed a First Amended Complaint as a matter of right. (ECF No. 4.) That same day, Plaintiff filed a partial motion for summary judgment, which is now pending before the Court. (ECF No. 5.) Plaintiff has yet to provide proof of service of process, and Defendants have yet to file an Answer or otherwise appear in this case.
“Although [Federal Rule of Civil Procedure 56] allows a motion for summary judgment to be filed at the commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had.” Fed.R.Civ.P. 56, Advisory Committee's Notes (2010 Amendments, Note to Subdivision (b)). Courts have denied pre-answer and pre-discovery motions for summary judgment as premature despite technical compliance with the timing provisions of Rule 56. See Williams v. Yuan Chen, No. S-10-1292-CKD-P, 2011 WL 4354533, at * 3 (E.D. Cal. Sept. 16, 2011) (denying plaintiff's summary judgment motion as premature where defendant had not yet filed an answer and the court had not issued a discovery order); Bradford v. Ogbuehi, No. 1:17-CV-01128-SAB (PC), 2020 WL 9886194, at *1 (E.D. Cal. Feb. 20, 2020) (holding that although Plaintiff's motions for summary judgment “technically” met the timing requirements, they were premature as the pleadings in the case were “not yet set.”)
While Plaintiff's partial motion for summary judgment is technically compliant with the timing requirements of Federal Rule of Civil Procedure 56, it is premature because Defendants have not yet responded to the Complaint nor does the docket reflect that they have been served. Accordingly, Plaintiff's motion for partial summary judgment, (ECF No. 5), is hereby DENIED, without prejudice.
IT IS SO ORDERED.