101 F.3d 145 (D.C. Cir. 1996), 96-7014, Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner

Docket Nº:96-7014.
Citation:101 F.3d 145
Party Name:Jerome D. JACKSON, Appellant, v. FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, et al., Appellees.
Case Date:December 06, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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101 F.3d 145 (D.C. Cir. 1996)

Jerome D. JACKSON, Appellant,



No. 96-7014.

United States Court of Appeals, District of Columbia Circuit

December 6, 1996

Argued Oct. 25, 1996.

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[322 U.S.App.D.C. 37] Appeal from the United States District Court for the District of Columbia (No. 95cv00544).

Allen M. Hutter, Washington, DC, argued the cause for appellant. John P. Racin was on the briefs.

Keith J. Harrison, Washington, DC, argued the cause and filed the brief for appellees.

Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Appellant Jerome D. Jackson appeals from the grant of summary judgment on the ground that the district court abused its discretion in denying his motion for leave to supplement his Rule 108(h) statement of material facts in dispute, and in granting appellee law firm's motion to strike the deficient Rule 108(h) statement, in the absence of a finding of prejudice to the law firm or to the court. He also maintains that the district court erred in granting the law firm's motion for summary judgment before searching the record, independent of the Rule 108(h) statements, to determine whether material issues of disputed fact existed. We find no abuse of discretion by the district court, and because the law firm's statement of material facts not in dispute is supported by the record and the law firm is entitled to judgment as a matter of law, we affirm the district court's grant of summary judgment.


Jerome D. Jackson was employed for five years as an associate at the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner. On March 21, 1995, he sued the law firm's partners, alleging that his employment had been terminated on the basis of his race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866, as amended by Section 101 of the Civil Rights Act of 1991, 42 U.S.C. § 1981, as amended; and the District of Columbia Human Rights Act, D.C.Code 1-2501 et seq. On June 7, 1995, the district court issued a scheduling order governing all pretrial matters, including strict procedures governing motions for extensions of time. The scheduling order stated, "Motions for Extensions of Time are strongly disfavored and parties should not expect extensions to be granted. However, any motion for extension of time shall be filed at least four days prior to the date the pleading is due." (emphasis in original) At the end of the scheduling order, the district court emphasized, "The Above Scheduled Dates Are Firm." (emphasis in original)

In a joint stipulation filed on August 2, 1995, the parties sought a two-week continuance to file their statements on expert testimony under Federal Rule 26(a)(2)(B). The district court granted the extension but prefaced its order with a warning:

[T]he instant "stipulation" provides the court with no reason for the request and no explanation for why it was not filed at least four days prior to the date the pleading is due, as the court directed in its June 7, 1995 scheduling order. Consequently the court is left with the impression that counsel consider such explanations unnecessary. Such a cavalier attitude towards the rules and the court's directives bodes badly for the upcoming litigation.

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[322 U.S.App.D.C. 38] Counsel are put on notice that future infringements will prompt a response which may include a denial of the requested relief and the imposition of sanctions as authorized by the Federal Rules and the inherent power of the court.

On August 11, 1995, the parties filed another joint motion for continuance to exchange expert witness statements, and the court granted it without comment.

Two days before the discovery deadline, Jackson filed two motions for continuances in order to respond to interrogatories and document requests and to depose witnesses. Acknowledging the importance of the district court's procedural rules, he explained that the continuance to respond to the discovery requests was necessary because of pressing deadlines in the instant case and other cases. Jackson's motion for additional time to permit depositions of defense experts and organizational witnesses indicated that he did so in part at the request of the law firm. The district court granted both motions but inscribed its orders with handwritten expressions of disapproval. In granting the two-day extension of time to respond to interrogatories and document requests, the court included the notation "Strike # 2." In granting additional time to conduct depositions, the district court added a second "Strike # 2," along with the comment, "I note this is the 2nd admonish[ment] for failing to comply with this court's procedure."

At the conclusion of discovery, on November 6, 1995, the law firm filed a motion for summary judgment. As part of its accompanying memorandum of law, the law firm included a twenty-seven page "Statement of Undisputed Material Facts," as required by Local Rule 108(h). The Rule 108(h) statement set forth the facts supporting its position that the law firm did not terminate Jackson, that Jackson voluntarily left the law firm, and that, in any event, the law firm had adequate reasons to terminate him. Each factual statement included a citation to the record, depositions, or affidavits.

After the court granted a nine-day continuance, Jackson filed an opposition to the motion for summary judgment on December 6, 1994. Attached to his memorandum of law was a Rule 108(h) statement of material facts in dispute, composed of five one-sentence entries. 1 The Rule 108(h) statement was devoid of citations to the record, depositions, or affidavits, and failed both to dispute the law firm's Rule 108(h) statement of undisputed material facts, and to include as a material disputed fact whether the law firm discharged him on the basis of his race. The memorandum of law, however, did include a thirty-one page statement of "relevant facts." Blending factual assertions with argument regarding their legal significance, the "relevant facts" section included numerous assertions that the law firm terminated Jackson through a "counseling out" process. It also described at length the "experience" of other associates at the law firm and the negative treatment of African-American staff.

Jackson filed three motions in December 1995 to correct deficiencies in his opposition to the motion for summary judgment. First, upon realizing that he had failed to attach the exhibits referenced in his memorandum, Jackson sought a one-day continuance in which to file them, apologizing to the district court for failing to comply with its four-day rule. The court granted the continuance, but

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[322 U.S.App.D.C. 39] again noted in handwritten form its disapproval of Jackson's additional departure from the rules set forth in its scheduling order: "Counsel continue to follow their own timelines and procedures in lieu of the court's. You put your clients' case at risk." Thereafter, upon recognizing further deficiencies in his Rule 108(h) statement, Jackson filed two additional motions. In his second motion he sought leave to supplement his Rule 108(h) statement with a sixth material disputed issue, namely "[w]hether Jackson's race was a motivating factor in the [law] firm's decision to terminate him." Like the original Rule 108(h) statement, the supplemental statement contained no citations to the record. His third motion, filed on the day his counsel became aware of the departure from the requirements of Local Rule 108(h), sought to amend his Rule 108(h) statement to include citations to the record. Jackson noted that the "relevant facts" portion of his opposition contained record references, and while acknowledging that counsel was "acutely aware" of the court's scheduling requirements, stated that his past violations "ha[d] not been the product of any willful failure to comply with th[e] Court's procedure...." Jackson further maintained that the law firm had suffered no prejudice because his original Rule 108(h) statement set out the relevant material disputed factual issues.

The law firm opposed Jackson's motion to supplement his Rule 108(h) statement on the grounds that it was untimely and would prejudice the law firm, which had already filed its reply to Jackson's opposition to the motion for summary judgment. 2 In addition, the law firm moved to strike Jackson's Rule 108(h) statement and requested that the district court deem as true the facts asserted in its statement of material facts not in dispute, arguing that Jackson's statement failed to comply with Rule 108(h) because it set forth five legal questions for the court to resolve, rather than disputed material facts worthy of resolution at trial. In response, Jackson argued that the law firm's Rule 108(h) statement itself was defective because it was not limited to a concise statement consisting only of material facts, that the law firm failed to demonstrate prejudice, and that his failure to include record citations in his Rule 108(h) statement did not impede the district court's ability to evaluate the facts and the record.

At a status hearing, during which Jackson attempted to explain why he had failed to comply with the its procedural rules, the district court summarized more than a dozen instances in which the parties sought extensions of time or other relief, observing that "unless a judge exerts control over the calendar, she or he will lose control of the calendar...." 3 The court thereafter denied Jackson's motion for leave to supplement his Rule 108(h) statement, and granted the law firm's motion to strike Jackson's Rule 108(h) statement and motion for summary judgment. In its order, the court noted...

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