United States District Court, W.D. New York
May 8, 2015
JUAN CASTRO, 11-B-2930, Plaintiff,
PAUL SOBKOWIAK, et al., Defendants.
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the undersigned by the Hon. Richard J. Arcara, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #19.
Currently before the Court is defendant Jeffrey Brewer's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. #37. In support of the motion, defendant avers that he is a member of University at Buffalo Surgeons, Inc., which has a contract to provide surgical services at Erie County Medical Center Corporation, but is not employed by the Erie County Medical Center Corporation, the State of New York, or the New York State Department of Corrections. Dkt. #37-2.
As a result of this submission, the Court deems it necessary to invoke the following provision set forth in Fed.R.Civ.P. 12(d):
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material made pertinent to the motion.
In accordance with Irby v. New York City Transit Authority, 262 F.3d 412 (2d Cir. 2001), attached is a notice of the requirements of Rule 56 of the Federal Rules of Civil Procedure and the consequences of noncompliance with the rules. Plaintiff's response shall be filed no later than June 19, 2015. Replies, if any, shall be filed no later than July 10, 2015.
IMPORTANT NOTICE TO PRO SE LITIGANTS
RULE 56 MOTIONS FOR SUMMARY JUDGMENT
This Notice is to advise you that a party in your lawsuit has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which means that summary judgment will be granted if the Court finds 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).
Failure to Respond to This Motion For Summary Judgment May Result in The Grant of Judgment in Favor of The Party Seeking Summary Judgment and The Dismissal of All or Part of The Case.
Opposing Affidavits and Exhibits
Therefore, if the motion seeks summary judgment against you, you MUST submit opposing papers in the form of one or more affidavits (or affirmations) made upon the personal knowledge of the person signing each affidavit. Each affidavit must set forth admissible facts and must show that the person submitting that affidavit is competent to testify as to the matters stated therein (because he or she has personal knowledge of the facts set forth in the affidavit). If you wish to submit exhibits in opposition to the motion, you may attach to the affidavit (or submit separately) sworn or certified copies or all papers or parts thereof which are referred to in an affidavit.
Statement of Material Facts Requiring a Trial
You MUST also submit a separate, short, and concise statement of the material facts as to which you contend there exists a genuine issue which must be tried. See Rule 56 of the Local Rules of Civil Procedure (available on the Western District web site at www.nywd.uscourts.gov). Note that all of the material facts which have been set forth in the statement served on you by the moving party (which that party claims are material facts about which there is no genuine issue to be tried) will be deemed to have been admitted by you unless you controvert the facts in your statement of material facts presenting a genuine issue requiring a trial.
Memorandum of Law
You MUST also submit a separate answering memorandum of law, Local Rule 7.1(e), which may not exceed 25 pages in length without prior approval of the Court, Local Rule 7.1(f). Failure to comply may result in the motion being decided against the non-complying party.