The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
ORDER GRANTING MOTION TO RECONSIDER AND DIRECTING PLAINTIFF TO RESPOND TO SUMMARY JUDGMENT MOTION BY AUGUST 7, 2006
Before the Court is a Motion for Reconsideration filed by Plaintiff Daisy S. Bradford, to which the Defendant Dodge Store a/k/a Savings, Inc. ("Dodge") has responded. The Court will reconsider its prior Order granting Defendant's Motion for Summary Judgment, but only when and if the Plaintiff submits a response opposing Defendant's Motion for Summary Judgment.
This is a slip and fall case. Plaintiff alleges in her Complaint that she slipped and fell while on the Defendant's business premises. She seeks damages in the amount of $100,000.
Although Plaintiff originally filed her case in state court, the Defendant removed it to federal court based on diversity jurisdiction. The case was scheduled for trial on July 31, 2006.
On May 31, 2006, Defendant filed a Motion for Summary Judgment. (Docket No. 22). No response to the motion was filed. On June 26, 2006, the Court entered an Order granting Defendant's Motion for Summary Judgment and a Judgment dismissing the case. (Docket No. 25 and 26).
Counsel for the Plaintiff contends that he did not receive a copy of the Defendant's Motion for Summary Judgment and requests the Court to reconsider, amend or vacate its prior Order and Judgment.
The Court concludes that considerations of fairness dictate that the Plaintiff should be permitted to oppose Defendant's summary judgment motion. The Court declines to vacate the Order, as Plaintiff requests, but will permit Plaintiff to submit a response to Defendant's motion for summary judgment at which time the Court will consider whether its prior grant of summary judgment was appropriate. If Plaintiff satisfies her obligation pursuant to Fed. R. Civ. P. 56 to demonstrate that a material issue of fact exists for trial, the Court will vacate its prior Order and Judgment, dated June 26, 2006, and set this case for trial.
The Court takes issue with Plaintiff counsel's statement that he never indicated that electronic service was the sole means by which his office would receive notice of filing of pleadings in this case. The Court has checked with the Clerk of the Court's Office and it appears that Mr. Wilson submitted a completed ECF Registration Form to the Court on May 17, 2006. In that Registration Form, in the paragraph above his signature, Mr. Wilson specifically consented to receiving notice of filings pursuant to Fed. R. Civ. P. 5(b)(2)(D) via the Court's ECF system. Further, Local Rule 5.2 specifically provides:
Transmission of the Notice of Electronic Filing through the court's transmission facilities constitutes service of the filed document upon each party in the case who is registered as a Filing User.
Thus, contrary to Mr. Wilson's assertion, he was not entitled to receive notice by any means other than electronically.
Further, the Court, upon inquiry, has been advised that the Court's ECF system automatically prepares a tracking log for every pleading served electronically. The "U.S. Court's Outbound E-Mail Tracking" shows that on May 31, 2006, at 16:39:25, a copy of the Defendant's Motion for Summary Judgment was successfully delivered to the e-mail address registered by Plaintiff's counsel with the Court, email@example.com. (A copy of said Tracking Log is attached hereto as Exhibit A).
The Court is further advised that while Mr. Wilson's e-mail host, Yahoo, acknowledged delivery of the motion to Mr. Wilson's e-mail address, it is possible that Mr. Wilson may not have actually received it. The two most likely reasons that he would not have received it are that he inadvertently deleted it or the e-mail was filtered out, perhaps into a ...