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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CARRIE J. RHODES,

Plaintiff,

vs. Case No. 4:11cv153-RH/WCS

SUPERVISOR OF ELECTIONS, 

LEON COUNTY,

Defendant.

 /

O R D E R

This case is now before me after counsel for Plaintiff was permitted to withdraw. 

Docs. 22, 23. Plaintiff now proceeds pro se in this employment discrimination action. 

In referring the case to me, the order from District Judge Robert Hinkle left the

deadline in place for Plaintiff to respond to the Defendant's pending summary judgment

motion. Doc. 23. Plaintiff must either file the response in opposition to that motion by

the deadline, January 11, 2012, or Plaintiff shall file a motion for an extension of time

on or before that deadline. If Plaintiff requests more time to respond, Plaintiff must

demonstrate good cause for the extension and state how much time is reasonably

required. In light of the fact that Plaintiff is now proceeding without counsel, this order

explains Plaintiff's obligation to respond to the summary judgment motion. 

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"[S]ummary judgment may not be entered against a party unless the court has

strictly complied with the notice requirements mandated by Fed. R. Civ. P. 56(c)." 

Brown v. Shinbaum, 828 F.2d 707, 708 (11th Cir. 1987), citing Griffith v. Wainwright,

772 F.2d 822, 824-25 (11th Cir. 1985). This requires that the Court give express 10 day

notice of the summary judgment rules, of the right to file affidavits or other material, and

the consequences of default; i.e., the fact that final judgment may be entered without a

trial and that the moving party's evidence may be accepted as true if not contradicted by

sworn affidavits. Id. This order is entered in compliance with Brown and Griffith. 

Summary judgment should be granted "if 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). Plaintiff is advised that in opposing

the motion she is the nonmoving party, and as Plaintiff she bears the burden of proof. 

In this situation, the Defendant need not negate Plaintiff's claim. Defendant need only

show "there is an absence of evidence to support the nonmoving party's case or by

showing that the nonmoving party will be unable to prove its case at trial." Hickson

Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265

(1986). However, in opposition to summary judgment, a plaintiff must "present evidence

from which a jury might return a verdict in [her] favor." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Put another way,

Plaintiff has the burden of coming forward with evidentiary material demonstrating a

genuine issue of fact for trial. "An issue of fact is 'material' if, under the applicable

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substantive law, it might affect the outcome of the case." Hickson Corp. v. Northern

Crossarm Co., Inc..357 F.3d 1256, 1259 (11th Cir. 2004). Furthermore, a factual issue

"is genuine 'if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.' " Western Group Nurseries, Inc. v. Ergas, 167 F.3d 1354, 1361 (11th

Cir. 1999), citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Thus, Plaintiff should

be aware that "the mere existence of some alleged factual dispute between the parties

will not defeat" a summary judgment motion; there must be a "genuine issue of material

fact." Anderson, 477 U.S. at 247-248, 106 S.Ct. at 2510.

Plaintiff may not rely upon the "mere allegation or denials" in the pleadings in

opposing summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Rather,

to withstand Defendant's summary judgment motion, and because Plaintiff bears the

"ultimate burden of proof at trial," Plaintiff must "come forward with evidence sufficient to

withstand a directed verdict motion." Hickson Corp., 357 F.3d at 1260. Evidentiary

material which would be acceptable in opposition to the motion includes sworn

affidavits, sworn documents, or other evidence indicating the existence of a genuine

issue of material fact. Fed. R. Civ. P. 56(e). Sworn affidavits offered in opposition to

the motion must be based on personal knowledge, set forth such facts as would be

admissible into evidence, and affirmatively show that the affiant is competent to testify

to the matters stated therein. Fed. R. Civ. P. 56(e).

Further, as required by Rule 56.1, Rules for the Northern District of Florida:

The party opposing a motion for summary judgment shall, in

addition to other papers or matters permitted by the rules, file and serve a

separate, short and concise statement of the material facts as to which it

is contended that there exists a genuine issue to be tried, in the format set

forth above. 

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All material facts set forth in the statement [of uncontested facts]

required to be served by the moving party will be deemed to be admitted

unless controverted by the statement required to be filed and served by

the opposing party.

N.D. Fla. Loc. R. 56.1(A). Defendant included a statement of material facts within the

summary judgment motion, doc. 19, as to which Defendant must contend (although not

clearly stated in the motion) that there is no genuine dispute. Thus, Plaintiff shall (in

addition to submitting other materials permitted by FED. R. CIV. P. 56, discussed above)

submit a separate statement of facts as to which Plaintiff contends there is a genuine

issue of fact. N.D. Fla. Loc. R. 56.1(A). The statement must reference the "source of

the relied upon material fact, by page, paragraph, number, or other detail sufficient to

permit the court to readily locate and check the source." Id. Facts set forth in

Defendant's statement will be deemed admitted (if supported by record evidence)

unless controverted by Plaintiff's statement. Id.

The parties are hereby notified that the Court will take the motion for summary

judgment under advisement on January 11, 2012. The file will be referred to me on

that date, and delay in entry of a report and recommendation after that date will be due

to the need to adjudicate motions in other cases which have become ready for

adjudication earlier than this case. 

Plaintiff should file affidavits or other material in opposition to summary judgment

before that date. If additional time is needed, she must file a motion for extension of

time (describing why the time is needed and how much time is necessary) before the

date on which the motion will be taken under advisement. 

Accordingly, it is ORDERED:

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1. The parties are advised that the motion for summary judgment, doc. 19, will

be taken under advisement on January 11, 2012. A report and recommendation will

be entered on or after that date. 

2. Plaintiff must submit opposition to the summary judgment motion by the

deadline stated above. 

3. The Clerk of Court shall return this file to me upon receipt of Plaintiff's

opposition to summary judgment, or on January 11, 2012.

DONE AND ORDERED on December 22, 2011.

S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR. 

UNITED STATES MAGISTRATE JUDGE

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