Amoah v. Dennis Mckinney & Smith Transp.
| Decision Date | 02 September 2016 |
| Docket Number | CIVIL ACTION NO. 4:14-40181-TSH |
| Parties | NANA AMOAH Plaintiff, v. DENNIS MCKINNEY and SMITH TRANSPORT Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Hennessy, M.J.
The Honorable Timothy S. Hillman has referred to this court the following motions concerning this car accident case: defendants Dennis McKinney and Smith Transport's ("defendants") motion for summary judgment (Docket # 52-54); plaintiff Nana Amoah's ("plaintiff") motion for summary judgment (Docket # 65, 66, 67, 70, 75); defendants' motion to strike plaintiff's statement of facts in support of his summary judgment motion (Docket # 87); defendants' motion to strike certain exhibits and portions of plaintiff's statement of facts in opposition to defendants' summary judgment motion (Docket # 99-100); and plaintiff's motion to strike defendants' expert report (Docket # 108). As discussed herein, the court recommends that defendants' motions be allowed and that plaintiff's motions be denied. The court first addresses the motions to strike, and then, with the summary judgment record properly defined, proceeds to the dispositive motions.
Defendants' Motion to Strike Plaintiff's Opposition (Docket # 99)
Defendants have moved to strike much of plaintiff's opposition to defendants' motion for summary judgment. The court begins with a brief background concerning defendants' summary judgment motion, which was timely filed in March of this year.
Plaintiff has submitted various iterations of his opposition to defendants' summary judgment motion. One is a document comprising a thirteen-page "Opposition" and a sixteen-page "Memorandum" and submitted without plaintiff seeking leave to file excess pages. This item was filed twice—initially by itself and then along with accompanying exhibits—on the day plaintiff's opposition was due. See Docket # 55, 56. Supporting plaintiff's opposition are expert reports by Phil Pantano, an Investigator and Collision Damage Analyst, as well as Dennis Andrews, Ph.D., PSP, CECD, WSO-CSS. See Docket # 56-9 - 56-12. Several days later, plaintiff filed separately his "Opposition" (Docket # 58) and "Memorandum" (Docket # 59). About three weeks later, plaintiff submitted (and District Judge Hillman granted) a motion to file excess pages in opposition to defendants' motion. See Docket # 76, 78.
Defendant now seeks to strike two aspects of plaintiff's opposition: (1) the "Statement of Facts" and "Factual Background" included, respectively, within plaintiff's Opposition and Memorandum; and (2) plaintiff's expert reports, which defendants aver (and plaintiff nowhere contests) were provided to defendants for the first time in plaintiff's opposition. Plaintiff has opposed the motion and defendants have submitted a reply. See Docket # 108-09. The court first defines the applicable legal standard and then addresses each request to strike.
The First Circuit in Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791 (1st Cir. 1992) explained that "[i]n operation, summary judgment's role is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Id. at 794 (citing cases). "When, as here, the movant-defendant has suggested that competent evidence to prove the case is lacking, the burden devolves upon the nonmovant-plaintiff to 'document some factual disagreement sufficient to deflect brevis disposition.'" Id. (italics in original) (quoting Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985 (1992)). The plaintiff's Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48) (1986) and quoting Mesnick, 950 F.2d at 822). Thus, a "non-movant['s] concise statement must identify what 'specific facts' are in dispute." U.S. S.E.C. v. Nothern, 598 F. Supp. 2d 167, 171 (D. Mass. 2009) (internal citation omitted); see also Brown v. Armstrong, 957 F. Supp. 1293, 1297 (D. Mass. 1997), aff'd, 129 F.3d 1252 (1st Cir. 1997) () (quoting Vasapolli v. Rostoff, 864 F. Supp. 215, 218 (D. Mass. 1993), aff'd, 39 F.3d 27 (1st Cir. 1994) (emphasis added in Armstrong).
L.R. 56.1; see, e.g., Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (). District courts have expanded on the rationale for this procedural mechanism. As stated in Brown, "Local Rule 56.1 was adopted to expedite the process of determining which facts are genuinely in dispute, so that the court may turn quickly to the usually more difficult task of determining whether the disputed issues are material." 957 F. Supp. at 1297.
Courts vary somewhat as to whether, in the event of the non-movant's noncompliance, the movant's facts must be, or merely may be, deemed as admitted. Compare Northern, 598 F. Supp. 2d at 171 () (quoting L.R. 56.1) (emphasis added) with Butters v. Wells Fargo Advisors, LLC, No. 10 Civ. 10072, 2012 WL 5959986, at *2 (D. Mass. Nov. 27, 2012) () (citing cases). The Local Rule's statement, however, that non-controverted material facts "will be deemed for purposes of the motion to be admitted" (emphasis added), supports the more stringent view.
In support of their motion for summary judgment, defendants have submitted, in compliance with Local Rule 56.1, a "a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried." See Docket # 53. Also in accordance with the Rule, defendants' submission—comprising eighty linear and enumeratedparagraphs—contains "page references to affidavits, depositions and other documentation" within the summary judgment record. See id.
Standing in stark contrast are the fact sections within plaintiff's opposition. Plaintiff's twelve-page Statement of Facts amounts to almost the entirety of his "Opposition"—the only other portions set forth the standard for summary judgment and plaintiff's conclusion. The Statement of Facts comprises: plaintiff's narrative of the accident, a discussion of State Trooper Fox's visit to the scene, plaintiff's summary of each party's accident reconstruction experts' efforts, and arguments that defendant McKinney altered his version of events and that defendants have failed to satisfy their discovery obligations. See generally Docket # 55 at pp. 1-12.1 Plaintiff's "Memorandum" similarly comprises a factual introduction and truncated "Factual Background" section, followed by plaintiff's presentation of "Evidence Against the Defendants' Theory" and a discussion of negligence per se, which the court notes is not recognized by Massachusetts law. See id. at pp. 15-28; see also Juliano v. Simpson, 461 Mass. 527, 532, 962 N.E.2d 175, 179 (2012) ().2
Plaintiff's submission speaks for itself: the majority of his asseverations are argumentative and narrative and without any citation to the evidence. Plaintiff occasionally references exhibits, but largely proceeds with scant citation to the record. And when he does cite to the evidence, he sometimes does so inaccurately. As an example, plaintiff cites to pp. 16 and 18 of State Trooper Richard Fox's deposition for his assertion that Trooper Fox "only talked to the Defendant and that was how he gathered the information with regard to how the accident happened." Docket # 55 atp. 3. This misrepresents Trooper Fox's testimony, which makes clear that after the accident he made efforts to speak with both drivers—in fact attempting to speak first with plaintiff, who refused to engage—rather than obtain only Mr. McKinney's account of the incident, as plaintiff suggests. See Docket # 56-5 at p. 3.
Most significantly, although his opposition takes broad-brush swings at, for example, "Defendants' Theory," nowhere does plaintiff directly address defendants' Rule 56.1 Statement with "a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried." This falls well short of the requirement, stated above, that plaintiff's opposition state which specific facts are in dispute. See S.E.C. v. Nothern; Brown v. Armstrong, supra.
Accordingly, the court concludes that the fact sections of plaintiff's opposition (Docket # 55 at pp. 1-12, 15-18) fail to comply with L.R. 56.1. It therefore accepts defendants' argument that these passages should be stricken from the summary judgment...
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