Opinion
Civil No. 03cv1800 J (AJB).
September 26, 2005
ORDER SUA SPONTE GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT PROFESSIONAL EXAMINATION SERVICE
On June 24, 2005, this Court issued an Order granting former defendant California Board of Psychology's (the "Board") Motion for Summary Judgment on all claims and terminating the Board as a defendant in this case. [Doc. No. 74.] In that Order, the Court made findings of fact resolving all material issues in this case. For that reason, as explained below, the Court now sua sponte GRANTS summary judgment in favor of the only remaining defendant, Professional Exam Service ("Defendant").
Procedural Background
On May 17, 2005, former defendant Board filed a Motion for Summary Judgment on all claims against the Board. [Doc. No. 64.] Defendant did not join in the Motion. On June 24, 2005, the Court issued an Order granting the Board's Motion for Summary Judgment in its entirety and terminating the Board as a defendant. [Doc. No. 74.]A final Pretrial Conference for this case was scheduled for August 15, 2005. ( See Am. Scheduling Order at 3.) On July 25, 2005, the Court received a joint Proposed Pretrial Order signed by both parties.
Subsequently, the Court was alerted to the fact that all issues of material fact appeared to have been resolved in the June 24, 2005 Order granting former defendant Board summary judgment. On August 12, 2005, the Court signed an Order vacating the final Pretrial Conference. [Doc. No. 82.] On August 17, 2005, the Court issued an Order to Show Cause why summary judgment should not be granted for Defendant. [Doc. No. 83.] The Court provided the parties with nearly three weeks to file supplemental briefing on the matter. ( See Order to Show Cause at 2.)
Factual Background
The following facts are taken from a Proposed Pretrial Order and findings of fact from the Court's June 24, 2005 Order Granting former defendant Board's Motion for Summary Judgment.
Plaintiff is an individual who holds a Ph.D from California Coast University. Defendant is a private entity that administers the Association of State and Provincial Psychology Boards' Examination for Professional Practice in Psychology ("EPPP"), pursuant to separate contracts with the Association of States and Provincial Psychology and the California Board of Psychology.
The EPPP is a 225-question computer-based exam, required in order to become a licensed psychologist in the State of California. From a scaled score range of 200 to 800 points, a candidate must score at least 500 points in order to pass the EPPP.
The Board determines whether a candidate is eligible to take the EPPP. If a candidate is eligible, the Board notifies Defendant and advises the candidate that his name is being forwarded to Defendant. Defendant contracted with Prometric, not a party to this lawsuit, to provide the physical site, computer equipment, and proctoring personnel to administer the EPPP.
Normally, candidates are allotted four (4) hours and fifteen (15) minutes to take the EPPP, unless a candidate qualifies for special accommodation. Candidates may seek requests for accommodation from the Board, which is solely responsible for review and approval of such requests. If a request is approved, the Board notifies the candidate and Defendant of the approval and the nature of accommodation to be provided.
At all relevant times, Plaintiff was eligible to take the EPPP. Between December of 2001 and February of 2003, Plaintiff took the EPPP and failed to pass a total of four (4) times, scoring a lowest possible scaled score of 200 three (3) times and a scaled score of 230 one time.
Each time Plaintiff took the EPPP, the Board approved Plaintiff's request for special accommodation of time and a half (totaling six (6) hours and twenty-two (22) minutes) in which to complete the exam. Defendant also provided Plaintiff with the special accommodation when the EPPP was administered.
Legal Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted when the moving party demonstrates that the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
The party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Id. at 323. If the moving party does not bear the burden of proof at trial, it need not produce evidence to negate the non-moving party's claim, but rather can satisfy the initial burden by demonstrating that the non-moving party failed to make a showing sufficient to establish an essential element of that party's case. Id. at 322-23; Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990).
In making its determination as to the moving party's initial burden, the court "may limit its review to the documents submitted for the purpose of summary judgment and those parts of the records specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). The court is not obligated to "scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge the initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress Co., 398 U.S. 144, 159-160 (1970).
If the moving party meets the initial burden of establishing the absence of a genuine issue of material fact, then the burden shifts to the nonmoving party to "set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). It is insufficient for the party opposing summary judgment to "rest on mere allegations or denials of his pleadings." Id. Rather, the party opposing summary judgment must "by her own affidavits, or by `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). Genuine issues of material fact remain if the issues "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.
In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The court must not make credibility determinations, weigh any evidence, or draw inferences from the facts. Anderson, 477 U.S. at 256.
Discussion
I. Authority to Sua Sponte Grant Summary Judgment
It is generally understood that a federal court has the power to sua sponte grant summary judgment. Wright, Miler Kane, Federal Practice and Procedure, Civil 3d § 2720, p. 345 ("To conclude otherwise would result in unnecessary trials and would be inconsistent with the objective of Rule 56 of expediting the disposition of case").
However, before granting summary judgment the federal court must provide sufficient advanced notice and an adequate opportunity for the losing party to demonstrate why summary judgment should not be granted. Id. The Ninth Circuit has held that a court generally must provide the losing party with ten days notice and an opportunity to present new evidence. United States v. Grayson, 879 F.2d 620, 625 (9th Cir. 1989). An exception to the notice requirement exists where the "losing party has had a full and fair opportunity to ventilate the issues involved in the motion." Maitland v. Mitchell, 44 F.3d 1431, 1439-40 (9th Cir. 1995) (holding that bankruptcy court properly sua sponte granted summary judgment against plaintiff on RICO claim where underlying fraud claim was fully briefed in response to defendant's summary judgment motion).
In the present case, the Court has provided Plaintiff with sufficient advanced notice and opportunity to argue and present evidence why summary judgment should not be granted for Defendant. First, former defendant Board's May 17, 2005 Motion for Summary Judgment specifically put at issue the material fact of whether Defendant had actually provided Plaintiff with special accommodation each time Plaintiff sat for the EPPP. ( See May 17, 2005 Mem. of P. and A. at 9.) Plaintiff failed to respond to the May 17, 2005 Motion for Summary Judgment.
On August 17, 2005, this Court then notified Plaintiff of the Court's intention to sua sponte grant summary judgment for Defendant. The Court issued an Order to Show Cause why summary judgment should not be granted. ( See Order to Show Cause.) The Court provided Plaintiff with nearly three weeks to file supplemental briefing on the issue of whether Defendant had actually provided Plaintiff with the special accommodations when the EPPP was administered. ( Id.) Plaintiff failed to file any supplemental briefing addressing the relevant issue.
Accordingly, the Court finds that it has provided Plaintiff with sufficient notice and opportunity to present evidence opposing summary judgment.
II. Whether There is a Genuine Dispute as to Plaintiff's Remaining Claims
Under a very liberal construal of Plaintiff's Third Amended Complaint, Plaintiff has alleged three claims against Defendant: (1) violation of the Americans with Disabilities Act ("ADA"); (2) breach of contract; and (3) intentional infliction of emotional distress. ( See Third Amended Complaint; see also Def.s' Supp. Briefing at 2.) All of these claims rest upon Plaintiff's allegation that Defendant did not provide Plaintiff with the special accommodation of time and a half in which to take the EPPP. For the reasons set forth below, the Court FINDS that there is no genuine dispute that Defendant did indeed provide Plaintiff with the requested special accommodations and thus the Court GRANTS summary judgment for Defendant on all claims.
First, in conjunction with its summary judgment Motion, former defendant Board submitted evidence supporting the conclusion that Defendant had provided the special accommodation. ( See Lodgment in Support of Mot. for Summ. Judgment ¶¶ 25, 29.) Specifically, former defendant Board submitted evidence of two letters sent by Defendant to Plaintiff and Plaintiff's attorney stating that the special accommodations had been provided. ( See id.) Plaintiff failed to submit any argument or evidence to refute this claim. Accordingly, in the June 24, 2005 Order granting former Defendant Board summary judgment, the Court concluded that "it also appears that special accommodation was indeed provided to Plaintiff." (June 24, 2005 Order Granting Summ. Judgment at 7.)
Next, in response to the Court's Order to Show Cause, Plaintiff failed to submit any briefing regarding whether Defendant had actually provided Plaintiff with the requested special accommodations.
Moreover, in response to the Court's Order to Show Cause, Defendant has submitted supplemental briefing and additional evidence supporting the conclusion that Defendant had provided such special accommodation. Specifically, Defendant has submitted a declaration by Indar Jurawan, Assistant Director of Statistics and Scoring at Defendant company. [Doc. No. 87.] Mr. Jurawan declares that for each candidate who takes the EPPP, Defendant receives an electronic score report ("ESR") that records the amount of time elapsed during the examination. (Decl. of Jurawan ¶¶ 3, 4.) Defendant has an ESR for each of Plaintiff's exams. ( Id. ¶ 5.) Of the four occasions on which Plaintiff took the EPPP, on three occasions the amount of time elapsed was six (6) hours and twenty-two (22) minutes, and on one occasion the amount of time elapsed was five (5) hours and twenty-one (21) minutes. ( Id. ¶ 10.) The Court finds that Defendant has fulfilled the initial burden of establishing that there is no genuine dispute over whether Plaintiff was given the requested special accommodations of additional time in which to take the EPPP.
Finally, Plaintiff has failed to submit any opposition to Defendant's supplemental briefing. Since Plaintiff cannot merely "rest on mere allegations or denials of his pleadings," Plaintiff has failed to establish a genuine dispute that he was not provided the requested special accommodations. See Anderson, 477 U.S. at 256.
Examining the evidence in the light most favorable to Plaintiff, the Court finds that there is no genuine dispute over the material fact that Defendant did provide Plaintiff with the requested special accommodations when he sat for the EPPP. Accordingly, the Court sua sponte GRANTS summary judgment for Defendant on all claims.
Conclusion and Order
For the reasons stated above, the Court sua sponte GRANTS summary judgment in favor of Defendant Professional Examination Service on all claims.
IT IS SO ORDERED.