`Circuit Court
`Sullivan County, Indiana
`
`STATE OF INDIANA
`
`COUNTY OF SULLIVAN
`
`)
`
`SULLIVAN COUNTY CIRCUIT COURT1
`
`) * CAUSE NO. 77C01-1904-CT-000204
`
`MICHAELD. HICKINGBOTTOM,
`
`Petitioner,
`
`v.
`
`ROBERTE. CARTER,etal.,
`
`Defendants.
`
`
`
`Nee’NeueNeue”NeueNeeNee”Nee”“ne”Nee”
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`MOTION TO STRIKE
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`Defendants, by counsel, respectfully submit this Motion to Strike as Plaintiff has filed
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`multiple motions for summary judgment in violation of the Ind. R. Trial P. 56.
`
`In support,
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`Defendants provide the following:
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`1.
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`On April 9, 2019, Plaintiff filed his operative complaint.
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`2.
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`On August 30, 2019, Plaintiff filed a motion for summary judgment which was
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`subsequently denied following briefing.
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`Plaintiff now improperly seeks a second bite at summary judgment.
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`Ind. R. Trial P. 56 contemplates the filing of a single summary judgment motion. For
`
`example, Ind. R. Trial P. 56(a) states:
`
`A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a
`declaratory judgment may,at any time after the expiration of twenty [20] days from the
`commencementof the action or after service of a motion for summary judgment by the
`adverse party, move with or without supporting affidavits for a summary judgmentin his
`favor uponall or any part thereof.
`
`(emphasis added).
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`Allowing Plaintiff to file separate summary judgment motions for each cause of action
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`broughtin this case is unduly burdensomeand contrary to the applicable rules.
`
`
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`6. As Plaintiff has already unsuccessfully sought summary judgmentin this case, Defendants
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`ask the Court to strike the motion for summary judgmentfiled July 13, 2020.
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`7. Should the Court consider this summary judgment motion, Defendants ask that it be denied
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`pursuantto Ind. R. Trial P. 56(F) as defendants have not had a sufficient period to conduct
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`discovery in this case.' Defendants have not had an opportunity to take Plaintiff's
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`deposition which is necessary to uncover relevant facts related to Mr. Hickingbottom’s
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`allegations.
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`8. Alternatively, and in in accordance with Ind. R. Trial P. 56(f), defendants ask this Court to
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`deny Plaintiff's summary judgment motion with leave to refile and put in place a case
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`managementplan for resolution ofthis litigation. Defendants suggest the close of discovery
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`as December 28, 2020 with dispositive motions being due February 21, 2020. This time
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`would allow the parties to conduct written discovery, depositions and gather affidavits in
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`support of their respective positions.
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`WHEREFORE, Defendants respectfully request this Court strike Plaintiff's pending motion
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`for summary judgmentas it wasfiled in violation of Ind. R. Trial P. 56 or, in the alternative and
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`in accordance with Ind. R. Trial P. 56(f) deny Plaintiff's motion for summary judgment with leave
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`to refile pursuant to a Court set scheduling order.
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`
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`' This litigation was stayed pending resolution of Plaintiff's appeal which was filed on March 13, 2020 and not
`resolved until June 29, 2020.
`
`
`
`Respectfully submitted,
`
`CURTIST. HILL,Jr.
`Indiana Attorney General
`Atty. No. 13999-20
`
`/s/Marley G. Hancock
`Marley G. Hancock
`Deputy Attorney General
`Attorney No. 34617-32
`
`OFFICE OF ATTORNEY GENERAL
`Indiana Government Center South, 5" Floor
`302 West Washington Street
`Indianapolis, IN 46204-2770
`Telephone: (317) 232-6287
`Facsimile: (317) 232-7979
`
`E-mail: Marley.Hancock@atg.in.gov
`
`
`
`CERTIFICATE OF SERVICE
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`I hereby certify that on August 28, 2020, I electronically filed the foregoing with the
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`Clerk of the Court using the CM/ECFsystem. Further, I certify that a copy of the foregoing has
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`been duly served uponthe party of record listed below by United States mail, first-class postage
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`prepaid, on August 28, 2020:
`
`Michael Hickingbottom
`DOC # 147099
`Wabash Valley Correctional Facility
`6908 S. Old US Highway 41
`Carlisle, IN 47838
`
`OFFICE OF ATTORNEY GENERAL
`Indiana Government Center South, 5“° Floor
`302 West Washington Street
`Indianapolis, IN 46204-2770
`Telephone:
`(317) 232-6287
`Facsimile: (317) 232-7979
`E-mail: Marley.Hancock@atg.in.gov
`
`Marley G. Hancock
`Deputy Attorney General
`
`
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