Smith v. Eastern New Mexico Medical Center

• Decision Date: 29 November 1993
• Citation: 72 F.3d 138
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 138

72 F.3d 138

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Vance H. SMITH, M.D.; Deborah P. Smith, R.N., RVT Plaintiffs-Appellants, v. EASTERN NEW MEXICO MEDICAL CENTER; Orson Treloar; John Kiker; Mike McGuire; Richard Mooney; Thor Stangebye; Kevin Lowe; Matt Foster Donald Wenner; Emmit Jennings, Defendants-Appellees.

No. 94-2213 & 94-2241.

United States Court of Appeals, Tenth Circuit.

Dec. 19, 1995.

Before ANDERSON, HOLLOWAY, and BRORBY, Circuit Judges.

ORDER AND JUDGMENT ¹

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted without oral argument.

Plaintiffs Vance H. Smith and Deborah P. Smith brought this action asserting fourteen federal civil rights, antitrust and state law tort claims against defendants. The district court dismissed one claim under Fed.R.Civ.P. 12(b)(6) and granted summary judgment to defendants on the other claims. The court also imposed sanctions against plaintiffs. Plaintiffs appeal. We have jurisdiction under 28 U.S.C. 1291.

I.

Vance Smith is a vascular surgeon who had medical privileges at Eastern New Mexico Medical Center (ENMMC), a general hospital in Roswell, from 1985 through 1991. Deborah Smith is a registered nurse and a registered vascular technician who operated a noninvasive vascular laboratory on property leased from ENMMC between 1984 and 1991. The individual defendants are doctors who were members of executive committees at ENMMC at various times between 1984 and 1991.

Plaintiffs brought this action in June 1992 alleging that they involuntarily left their positions at ENMMC in 1991 following a series of wrongful disciplinary actions by defendants against Vance Smith dating back to 1985. Plaintiffs contend that defendants' actions were improper, malicious and motivated by personal animosity against Vance Smith and were intended to drive plaintiffs out of town. Their second amended complaint contains fourteen counts alleging violations of their civil rights to due process, liberty interests and equal protection, breach of contract, tortious interference with business relations, defamation, infliction of emotional distress, and violation of state and federal antitrust laws.

On October 5, 1993, defendants moved to dismiss plaintiffs' equal protection claims for failure to state a claim. The district court granted this motion on August 9, 1994, on the basis that plaintiffs failed to allege membership in a constitutionally protected group. 4 Appellants' App. at 1391. On April 14, 1994, defendants moved for sanctions on the basis that plaintiffs had responded to discovery requests improperly and in bad faith. The court granted the motion on June 23, 1994, deeming certain requests for admission admitted and ordering plaintiffs to pay defendants' attorney fees incurred in connection with the motion. On April 18, 1994, defendants filed sixteen motions for summary judgment. Plaintiffs responded on June 3. In its September 26, 1994 memorandum opinion and order, the court granted the motions and ordered the case dismissed.

In appeal No. 94-2241, plaintiffs contend that the district court erred by (1) granting summary judgment against them on their due process and liberty interest claims; (2) granting evidence preclusion sanctions against them for their responses to defendants' discovery requests; and (3) dismissing their equal protection claims. In appeal No. 94-2213, plaintiffs challenge the court's award of monetary sanctions against them for their responses to defendants' discovery requests. ² Contending that plaintiffs' arguments are frivolous, defendants request that they be awarded their attorney fees on appeal as a sanction for a frivolous appeal.

II.

A. Summary Judgment

The procedural background regarding the summary judgment motions and responses will focus our analysis. After defendants filed their sixteen motions for summary judgment, plaintiffs moved for "Establishment of a Fair and Reasonable Briefing Schedule" in which they requested leave to file one statement of material facts applicable to all claims and consolidate their legal arguments into eight responses and to extend the due date for their responses. The court did extend the due date for plaintiffs' responses (beyond the date they requested) but otherwise denied the motion (apparently in accordance with a local administrative order requiring separate submission and docketing of motions and responsive pleadings). In doing so, the court also directed plaintiffs to comply with the court's local rules, including Local Rule 56.1(b). This rule requires in relevant part that

[a] memorandum in opposition to the [summary judgment] motion shall contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and shall state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted unless specifically controverted.

In its order granting defendants' summary judgment motions, the court found that plaintiffs had not complied with their obligations under the local rules:

In opposition to Defendants' motions, plaintiffs effectively defaulted their case by failing to comply with the clear and unambiguous requirements of the local and federal rules of civil procedure and the orders of this court. Plaintiffs failed to produce any admissible evidence identifying, with the degree of specificity contemplated by Fed.R.Civ.P. 56(e), any genuine issue as to the "undisputed" material facts established by Defendants. Instead of filing individually-tailored responses, as ordered by this Court, Plaintiffs submitted a nearly identical statement of 29 "Disputed/Undisputed Material Facts" in response to each of Defendants's sixteen motions. As a result, Plaintiffs failed to factually refute any of Defendants' factually supported legal arguments for summary judgment. Not only did Plaintiffs not comply with Local Rule 56.1(b) by failing to identify, by number, which of Defendants' undisputed facts they contend were in dispute, Plaintiffs' response failed to cite any admissible evidence in support of their conclusory legal summations.

4 Appellants' App. at 1400. A footnote to this passage describing the "29 'Disputed/Undisputed Material Facts' " stated that

six reference the unattached declarations of the plaintiffs; seven contain no citations to the record; five concern irrelevant "background" information; and one refers to inadmissible double hearsay. The majority of the remaining paragraphs either lack support from the referenced material in the record, are irrelevant to the alleged conduct of the defendants, or even if proved, would not support the plaintiffs' claims.

Id. n. 3.

On appeal, plaintiffs contend that they produced admissible evidence specifically identifying triable issues of material fact that should have precluded summary judgment on their due process and liberty interest claims. ³ They also contend that they fully complied with Fed.R.Civ.P. 56(e) and substantially complied with Local Rule 56.1(b) such that total rejection of their factual opposition to summary judgment was unwarranted.

We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 115 S.Ct. 655 (1994); Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Universal, 22 F.3d at 1529 (quoting Fed.R.Civ.P. 56(c)). While the movant bears the burden of showing the absence of a genuine issue of material fact, Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569-70 (10th Cir.1994), the movant need not negate the nonmovant's claim, but need only point to an absence of evidence to support the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Universal, 22 F.3d at 1529. If the movant carries this initial burden, the nonmovant may not rest upon its pleadings, but must set forth specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Applied Genetics, 912 F.2d at 1241.

B. Local Rule 56.1(b)

The district court specifically held that defendants met their initial burden of showing the absence of disputed material facts:

In the memoranda submitted in support of each of their motions for summary judgment, Defendants properly directed this court's attention to each and every element of Plaintiffs' causes of action where no genuine issue of material fact exists. For each motion, Defendants supplied a numbered set of specifically-tailored "Undisputed Material Facts," supported by affidavits and other admissible evidence. In addition, Defendants pointed out Plaintiffs' complete lack of admissible evidence to support one or all of the elements of each of their claims.

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