Smith v. Ford

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 WILLIE T. SMITH, Case No. 3:20-CV-00501-JAD-CLB 5 Plaintiff, ORDER DENYING MOTION TO VACATE SCREENING ORDER AND DENYING AS 6 v. PREMATURE MOTION FOR SUMMARY JUDGMENT 7 AARON FORD, et al., [ECF Nos. 24, 33] 8 Defendants. 9 10 Before the Court are Plaintiff Willie T. Smith’s (“Smith”) motion to vacate screening 11 order and motion for summary judgment. (ECF Nos. 24, 33.) No responses were filed. 12 The Court will address each motion in turn. 13 I. Motion to Vacate Screening Order 14 Smith’s motion to vacate screening order is a one-page document that asks the 15 Court to “vacate its screening order that overrules the Ninth Circuit’s holding in 16 Burnsworth v. Gunderson, 179 F.3d 771, 775 (9th Cir. 1999).” (ECF No. 24.) The Court 17 construes this as a motion for reconsideration. A motion for reconsideration “should not 18 be granted, absent highly unusual circumstances.” Marlyn Nutraceuticals, Inc. v. Mucos 19 Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). “Reconsideration is appropriate 20 if the district court (1) is presented with newly discovered evidence, (2) committed clear 21 error or the initial decision was manifestly unjust, or (3) if there is an intervening change 22 in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 23 Rule 60(b) “permits a district court to reconsider and amend a previous order,” however 24 “the rule offers an extraordinary remedy, to be used sparingly in the interests of finality 25 and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 26 2003) (internal quotations omitted). Smith’s conclusory statement and citation to a 1999 27 case does not present a valid basis for reconsideration. Accordingly, the motion to vacate 1 II. Motion for Summary Judgment 2 Smith’s motion for summary judgment asserts that there is no genuine dispute as 3 to any material fact and Smith is entitled to judgment as a matter of law. (ECF No. 33.) 4 Pursuant to Rule 56, a party can file a motion for summary judgment “at any time” and 5 does not have to wait for discovery to commence or conclude. Fed. R. Civ. P. 6 56. However, such motions generally should not be made before there has been 7 adequate time for discovery. Ferm v. Crown Equity Holdings, Inc., 2011 U.S. Dist. LEXIS 8 84433, 2011 WL 3300210 (quoting Phongsavane v. Potter, No. CIV.A. SA-05-CA-0219- 9 XR, 2005 U.S. Dist. LEXIS 12439, 2005 WL 1514091, at *5 (W.D. Tex. June 24, 2005)); 10 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); 11 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1100 n.15 (9th Cir. 2009); Garrett 12 v. City & County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). 13 To date, no defendant has answered or otherwise responded to the complaint. 14 Moreover, no discovery plan and scheduling order has been entered in this case. Thus, 15 the parties have not had a meaningful opportunity to conduct discovery or receive any 16 discovery responses prior to the filing of the motion. Moore v. Hubbard, No. CIV S-06- 17 2187-FCD-EFB, 2009 U.S. Dist. LEXIS 20513, 2009 WL 688897 at *1 (E.D. Cal., Mar. 18 13. 2009). As such, there has not been a sufficient opportunity to receive evidence to 19 support or oppose the motion and therefore the motion is premature. Accordingly, Smith’s 20 motion for summary judgment, (ECF No. 33), is DENIED without prejudice. 21 DATED: _N_o_v_e_m__b_e_r _3_, _2_0_2_1_. 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27