Hanway v. Merral

• Court: District Court, D. Arizona
• Decided: October 22, 2021
• Docket: 4:19-cv-00484
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Guy Hanway, No. CV-19-00484-TUC-RCC

10 Plaintiff, ORDER

11 v.

12 Unknown Merral, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants’ Motion for Leave to File Pre-Answer 16 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies. (Doc. 17 21.) In addition, Defendants ask this Court to toll the time to file an answer until 30 days 18 after the resolution of summary judgment. (Id.) On July 15, 2021, the Court granted 19 Defendants’ Amended Second Motion for Extension of Time to File Answer, 20 rescheduling the deadline for August 13, 2021. (Doc. 20.) On August 13, 2021, rather 21 than file an answer, Defendants filed the present motion. (Doc. 21.) 22 The Federal Rules of Civil Procedure require a defendant to serve an answer 23 within 21 days of being served with the summons and complaint or, if service has been 24 waived, within 60 days after the request for waiver was sent. Fed. R. Civ. P. 12(a)(1)(A). 25 Typically, a defendant files an answer prior to moving for summary judgment. However, 26 the rules permit a party to file a motion for summary judgment at any time until 30 days 27 after the close of discovery. Fed. R. Civ. P. 56(b). “This means that a party may file a 28 summary judgment motion before filing an answer.” Harris v. McGrath, No. CV-14- 1 02453-TUC-CRP, 2016 WL 11652877, at *1 (D. Ariz. June 21, 2016); see also Johnson- 2 Bey v. Tolbert, No. CV-13-00578-PHX-ROS, 2013 WL 11311731, at *1 n.1 (D. Ariz. 3 July 29, 2013) (quoting Charles Alan Wright, et al., Federal Practice and Procedure § 4 2718 (3d ed.)) (“While unusual, ‘[a] defending party is not required by [Rule 56] to file 5 an answer before moving for summary judgment.’”). Furthermore, in prisoner litigation, 6 a court first seeks to resolve questions concerning exhaustion of remedies. See Albino v. 7 Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (en banc) (“Exhaustion should be decided, if 8 feasible, before reaching the merits of a prisoner’s claim.”), cert. denied sub nom. Scott v. 9 Albino, 135 S. Ct. 403 (2014). 10 Federal Rule of Civil Procedure 56 does not address whether filing a motion for 11 summary judgment tolls the time to file an answer. However, courts in the Ninth Circuit 12 have drawn analogy to the tolling that occurs when a party files a pre-answer motion to 13 dismiss under Federal Rule of Civil Procedure 12(a)(4) and have extended the time to file 14 an answer until after an order on a pre-answer summary judgment motion “where such 15 motion adequately contests the action.” See, e.g., Mann v. Lee, No. C 07-00781 MMC 16 (PR), 2009 WL 5178095, at *2 (N.D. Cal. Dec. 22, 2009) (collecting cases). 17 Here, the Court finds that a motion for summary judgment for failure to exhaust 18 administrative remedies “adequately demonstrates defendants' intent to defend against 19 plaintiff's action [because it] may be dispositive of all of plaintiff's claims.” Id. at *3. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, IT IS HEREBY ORDERED 2 (1) Defendants’ Motion for Leave to File Pre-Answer Motion for Summary Judgment 3 for Failure to Exhaust Administrative Remedies is GRANTED. (Doc. 21.) The 4 Clerk of Court shall file Defendants’ Lodged Motion for Summary Judgment for 5 Failure to Exhaust Administrative Remedies. (Doc. 22.) 6 (2) Furthermore, Defendants shall have 30 days from the Court’s order on their 7 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies to 8 file an answer to Plaintiff's Complaint. 9 Dated this 22nd day of October, 2021. 10 11 , 4 12 fb Dp Th- 13 Honorable Raner ©. Collins 14 senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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