Smart v. Winner

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

FORREST SCOTT SMART, CV 24-65-H-DLC

Plaintiff, ORDER vs.

CONNIE WINNER, ET AL.,

Defendants.

Defendants filed a motion for summary judgment with supporting documents on July 21, 2025. (Doc. 42.) Defendants did not file the Rand notice required by L.R. 56.2 at the time a motion for summary judgment is filed against an incarcerated plaintiff proceeding pro se. After an extension, Plaintiff Forrest Scott Smart filed his responding documents. (Doc. 49, 50, and 51.) In his brief, Smart noted the failure of Defendants to provide the Rand notice. (Doc. 50 at 27.) Defendants then filed the notice, approximately five weeks after filing their motion. Smart has now filed a motion seeking denial of Defendants’ motion, solely on the grounds of the missing Rand notice, pointing out that L.R. 56.2(b) states: “Failure to provide the above Notice and Warning will result in denial of the motion for summary judgment, regardless of whether the motion is fully briefed.” The motion will be denied. The Ninth Circuit takes the Rand notice obligation seriously. The notice requirement “effectuates the purpose of the Federal Rules to eliminate procedural booby traps which could prevent unsophisticated litigants from ever having their

day in court.” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013). In Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012), the court held “that Rand … notices must be served concurrently with motions to dismiss and motions for summary

judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of what is required of them in order to oppose those motions.” See also Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1159 (9th Cir. 2013) (per curiam) (explaining “[t]he Rand notice must issue so that the litigant will receive the

motion and the notice reasonably contemporaneously” and holding that although there was a delay in sending the Rand notice, it was harmless error). Smart appears to interpret L.R. 56.2(b) as requiring denial on the merits.

More realistically, the motion would be denied without prejudice, subject to renewal with the proper Rand notice. Neither party, nor the Court, is served by denying with prejudice a meritorious motion for summary judgment. The end result would be spending greater expense, effort, time, and resources, including

empaneling of a jury, and obtaining and paying witnesses, when, all along, the correct legal result was apparent in the motion. That approach is nonsensical. (The parties’ briefing on this motion has not yet been reviewed in depth by the Court, so

this statement shall be construed to foreshadow any ruling on the motion for summary judgment itself.) Thus, should the Court deny Defendants’ motion on the basis of L.R.

56.2(b), Defendants would be entitled to re-file it, with the proper notice, and Smart would respond again. This approach, unfairly or not, falls more harshly on Smart than on Defendants, due to their resources. The question for Smart, then, is

whether the notice provided him any additional information about how he should respond that he did not already have, or whether he would file different briefs or documents in response to the motion. Smart’s situation here is very similar to the plaintiff’s in Labatad, cited

above. Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1159 (9th Cir. 2013) (per curiam). In that case, the district court granted summary judgment despite a month- late Rand notice. By the time the notice was issued, Labatad, like Smart, had

already filed his response brief. But Labatad’s response, like Smart’s, “fully complied with the instructions in the Rand notice. The record, objectively viewed, show[ed] that Labatad knew and understood the information in the Rand notice before he received it.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th

Cir. 2013). Thus, the district court’s ruling, despite the timing of the Rand notice, was harmless error. In light of the state of the law in the Ninth Circuit and the local rule, the

appropriate course here is to provide Smart with additional time in which to file any supplemental materials that he believes he would have filed, had he had a timely Rand notice. He is not required to file anything. Defendants’ motion will be

ruled on after the additional materials, if any, have been submitted. Accordingly, it is HEREBY ORDERED: 1. Plaintiff’s motion is DENIED. (Doc. 53.)

2. Smart may have until September 26, 2025, to file any additional materials in response to Defendants’ motion for summary judgment. Defendants may file a reply brief in support of their motion in the time allowed by the Federal Rules, after Smart files his additional materials.

3. At all times, Smart must advise the Court of any change of address. Failure to do so may result in dismissal of the action without notice to him for failure to prosecute.

DATED this 5th day of September, 2025.