The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER REGULATING PROCEEDINGS
NOTICE TO PRO SE LITIGANT
On March 10, 2010, Defendant Service Employees International Union Local 1199 moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment under Rule 56. This means that Defendant has asked the Court to decide the case without a trial, based on the written materials that it has submitted. Since Defendant has moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, the claims asserted in the complaint may be dismissed without a trial if Plaintiff does not respond to this motion by filing sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial. The full text of Rule 56 of the Federal Rules of Civil Procedure is attached.
In short, Rule 56 provides that Plaintiff, in opposing Defendant's motion, may not simply rely on the allegations in the complaint. Rather, Plaintiff must submit evidence, is referred to in an affidavit, a sworn certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidants.
(2) Opposing Party's Obligation to Respond. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.
(f) When Affidavits Are Unavailable. If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(2) order a continuance to enble affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
(g) Affidavit Submitted in Bad Faith. If satisfied that an affidavit under this rule is submitted in bad faith or solely for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt.
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