(PC) McNeil v. Toor ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL MCNEIL, Case No. 1:19−cv−01257−DAD−HBK 12 Plaintiff, ORDER STRIKING PLAINTIFF’S OPPOSITION FILINGS, DIRECTING 13 v. RESUBMISSION OF OPPOSITION, AND DEEMING DEFENDANTS’ EX PARTE 14 KIRAN TOOR, PAL VIRK, TIN-AUNG REQUEST FOR EXTENSION TO FILE SHWE, and HARMINDER LONGIA, REPLY MOOT 15 Defendants. (Doc. Nos. 57, 58, 59, 60, 61) 16 17 Pending before the Court is the Motion for Summary Judgment filed by Defendants Kiran 18 Toor, Pal Virk, Tin-Aung Shwe, and Harminder Longia (“Defendants”) on November 10, 2021. 19 (Doc. No. 53, “MSJ”). On January 5, 2022, purportedly in opposition to the MSJ, the Court 20 received several filings from Plaintiff Michael McNeil (“Plaintiff” or “McNeil”). (Doc. Nos. 58- 21 60). On January 11, 2022, Defendants sought an extension of time to file a reply due to 22 Plaintiff’s voluminous filings. (Doc. No. 61). 23 ORGANIZATION OF PLAINTIFF’S FILINGS 24 Plaintiff’s combined filings exceed over 1000 pages. Plaintiff’s Request for Judicial 25 Notice (Doc. No. 57, “RJN”) appears intact. Plaintiff’s other filings appear to have been 26 dissembled at some point. The cover page to Plaintiff’s Separate Statement is Doc. No. 58 at 1, 27 but the substance of the statement does not appear until Doc. No. 58 at 56-67. After that follows, 28 what appears to be, Plaintiff’s Memorandum (Doc. No. 58 at 68-90), Plaintiff’s Declaration (id. at 1 91-112), and a number of exhibits. The remainder of Doc. Nos. 58, 59, and 60 appear to be 2 Plaintiff’s other supporting exhibits, but they are not in order. 3 Plaintiff will be directed to resubmit each of the following: (1) separate statement; (2) 4 memorandum; (3) declaration and supporting exhibits; and (4) RJN and exhibits. He should 5 ensure that each document, and each individual exhibit, is separately bound so that the Clerk’s 6 office can file them appropriately. In preparing his opposition, as the non-moving party, Plaintiff 7 is required to provide affidavits, and/or admissible discovery material demonstrating a factual 8 dispute exists. Fed. R. Civ. P. 56(c). Summary judgment cannot be avoided by making 9 conclusory allegations unsupported by factual data. Arpin v. Santa Clara Valley Transportation 10 Agency, 261 F.3d 912, 922 (9th Cir. 2001) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 11 1989)). Local Rule 260(b) requires that the party opposing summary judgment “reproduce the 12 itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and 13 deny those that are disputed, including with each denial a citation to the particular portions of any 14 pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in 15 support of that denial.” 16 RESUBMISSION OF PLAINTIFF’S FILINGS 17 As Plaintiff reviews his filings, he should consider whether some of his evidence has 18 already been submitted by Defendants. If the evidence is already in the record, Plaintiff should 19 not resubmit it. Instead, his memorandum and separate statement should simply refer to 20 Defendants’ exhibit and page number. The Court appreciates efforts to minimize duplication. 21 Plaintiff should also consider what evidence is actually necessary to support his RJN and 22 opposition. Only evidence specifically referred to (by exhibit and page number) in Plaintiff’s 23 separate statement, memorandum, and/or RJN will be considered. See, e.g., S. Cal. Gas Co. v. 24 City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003) (citing Forsberg v. Pac. Northwest Bell Tel. 25 Co., 840 F.2d 1409, 1418 (9th Cir. 1988) (“The district judge is not required to comb the record 26 to find some reason to deny a motion for summary judgment.”)). 27 Additionally, in reviewing his RJN, Plaintiff may consider whether each of the matters are 28 proper subjects of judicial notice. While the Court may be able to take judicial notice that certain 1 || statements were made, for example, it generally cannot take judicial notice of the interpretation of 2 | adocument or of the truth of statements in a document such as a letter or news article. See, e.g., 3 | Gerritsen vy. Warner Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1029 (C.D. Cal. 2015). The Court 4 | also notes that RJNs are generally accompanied by a declaration that authenticates the materials 5 | submitted. See Fed. R. Evid. 901. 6 Accordingly, it is ORDERED: 7 (1) The Clerk is directed to strike Doc. Nos. 57, 58, 59, and 60 and return the filings to 8 Plaintiff for his use in preparing his opposition, as appropriate; 9 (2) Within 60 days of receipt of the stricken documents (Doc. Nos. 57, 58, 59, and 60), 10 Plaintiff shall refile and reassemble his opposition and include only those documents 11 or amended versions of those documents, as necessary; 12 (3) Defendants’ ex parte request for extension of time to file reply (Doc. No. 61) is 13 deemed moot. 14 | Dated: _ January 12, 2022 Mile. Wh fareh Zaskth 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28