Opinion
Case No: 3:06cv8/RV/MD.
March 17, 2008
ORDER
Pursuant to court order, defendants have filed their special reports (docs. 116 117). Plaintiff will now be required to file a response in opposition to these reports. At some time in the future, the court may by order treat defendants' reports and the plaintiff's response as summary judgment motions and response. Therefore, in preparing a response to the reports, plaintiff is directed to file and serve affidavits and any other documents or materials required by Fed.R.Civ.P. 56 and Local Rule 56.1(A).
In opposing a motion for summary judgment plaintiff is the nonmoving party, and as plaintiff he is the party with the burden of proof. Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The rule does not require the party seeking summary judgment to submit evidence negating the opposing party's claim, but instead to demonstrate (" with or without supporting affidavits") that the Rule 56(c) standard is satisfied. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Rule 56(e) permits opposition to summary judgment by any of the evidentiary materials listed in Rule 56(c) except the mere pleadings themselves. 106 S.Ct. at 2553. Affidavits offered in support of or in opposition to summary judgment must be based on personal knowledge, set forth facts as would be admissible as evidence, and demonstrate that the affiant is competent to testify to the matters asserted. Fed.R.Civ.P. 56(e).
Accordingly, it is ORDERED:
1. Within thirty (30) days from the date of this order, plaintiff shall respond to the written reports filed by defendants, and shall file any evidence in support of his response.
2. Failure to comply with this order may result in a recommendation of dismissal for failure to comply with a court order pursuant to Local Rule 41.1(B).
DONE AND ORDERED.