Case 2:14-cv-00751-GEB-AC Document 35 Filed 07/30/14 Page 1 of 4

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KAMALA D. HARRIS, State Bar No. 146672

Attorney General of California
SCOTT H. WYCKOFF, State Bar No. 191367
Supervising Deputy Attorney General
MATTHEW T. BESMER, State Bar No. 269138
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
Telephone: (559) 477-1680
Fax: (559) 445-5106
E-mail: Matthew.Besmer@doj.ca.gov
Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

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REHAN SHEIKH,

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v.

2:14-cv-751 GEB AC PS
Plaintiff, DEFENDANTS OPPOSITION TO
PLAINTIFFS MOTION FOR
JUDGMENT (Doc. 33)

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Date:
Time:
Dept.:
Judge:

BRIAN KELLY Secretary, California State

Transportation Agency and Mark Tweety,
Manager, Department of Motor Vehicles,

August 13, 2014

10:00 a.m.
26, 8th Floor
Honorable Allison Claire

Defendants. Trial Date:

TBA
Action Filed: March 24, 2014

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On July 14, 2014, Plaintiff filed a Motion for Judgment (Doc. 33) set for hearing on

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August 13, 2014. On July 24, 2014, Plaintiff filed a Memorandum of Points and Authorities In

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support of Plaintiffs Motion for Declaratory and Injunctive Relief (Doc. 34). It appears that the

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memorandum of points and authorities is in support of the Motion for Judgment. Plaintiff is

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requesting entry of declaratory relief, damages, and injunctive relief. Doc. 34, 14:26-15:6.

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Although not captioned as such, Defendants construe Plaintiffs motion as one for summary

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judgment under Rule 56. In this regard, the motion is procedurally deficient, it is premature, and

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should be denied.

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (2:14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 35 Filed 07/30/14 Page 2 of 4

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Plaintiff has not filed a statement of undisputed facts as required by Local Rule 260.

Moreover, Plaintiffs supporting memorandum (Doc. 34) is untimely because it was filed only 20

days before the August 13, 2014 hearing. Local Rule 230(b) requires moving papers to be filed

28 days before the hearing. Additionally, Plaintiffs motion lacks evidentiary support. And

Defendants dispute Plaintiffs claims.

Further, the motion is premature because the pleadings have not yet closed, and discovery

has not yet begun. See Fed. R. Civ. P. 56 (d) (a court may defer or deny a motion for summary

judgment, allow time for discovery, or issue other appropriate relief when the nonmovant cannot

present facts essential to justify its opposition). Normally, an affidavit is required to invoke the

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remedies provided under Rule 56(d). See Fed. R. Civ. P. 56 (d). Defendants, however, request

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that the Court take judicial notice of the status of the pleadings and discovery under Federal Rule

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of Evidence 201.1 Further complicating matters is that Plaintiff improperly filed a first amended

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complaint (Doc. 32) on July 14, 2014, the same day he filed his Motion for Judgment.2 The

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pleadings need to close, and discovery needs to at least open, before Defendants can properly

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oppose a motion for summary judgment.

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Based on the foregoing, Defendants Motion for Judgment should be denied. To the extent

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that Plaintiffs motion is construed as an opposition to Defendants Motion to Dismiss (Doc. 20),

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Defendants will timely file their reply.

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The pleadings have not yet closed and Defendants have not yet filed an answer. See Docs. 21
and 30 (Defendants motion to dismiss under Rule 12(b)(1) and (6) is pending before the Court
and is set for hearing on August 13, 2014). Further discovery has not yet opened. See Fed. R.
Civ. P. 26 (discovery opens after the Rule 26(f) conference, or as stipulated by the parties or
ordered by the court); see Doc. 4 (status conference scheduled for August 27, 2014).
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Plaintiff was required to seek leave of court before filing an amended complaint because the
time to amend as a matter of course had expired. Defendants served their motion to dismiss on
May 7, 2014, and Plaintiff filed his amended complaint on July 14, 2014. See Fed. R. Civ. P.
15(a)(1) (as a matter of course, amendments may be made 21 days after service of a motion under
Rule 12(b)).
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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (2:14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 35 Filed 07/30/14 Page 3 of 4

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Dated: July 30, 2014

Respectfully submitted,

KAMALA D. HARRIS
Attorney General of California
SCOTT H. WYCKOFF
Supervising Deputy Attorney General

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/S/ Matthew T. Besmer

MATTHEW T. BESMER
Deputy Attorney General
Attorneys for Defendants

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SA2014115505
95113326.doc

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (2:14-cv-751 GEB AC PS)

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DECLARATION OF SERVICE BY U.S. MAIL

Case Name:
No.:

Sheikh, Rehan v. Kelly, Brian, et al

2:14-cv-751 GEB AC PS

I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On July 30, 2014, I served the attached DEFENDANTS OPPOSITION TO PLAINTIFFS
MOTION FOR JUDGMENT (Doc. 33) by placing a true copy thereof enclosed in a sealed
envelope in the internal mail collection system at the Office of the Attorney General at 2550
Mariposa Mall, Room 5090, Fresno, CA 93721, addressed as follows:
Rehan Sheikh
1219 W. El Monte Street
Stockton, CA 95207

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I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on July 30, 2014, at Fresno, California.
Carol Borunda
________________________________
Declarant

/s/ Carol Borunda

____________________________________
Signature

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR JUDGMENT (2:14-cv-751 GEB AC PS)