Breeser v. Menta Grp., Inc.

• Decision Date: 21 March 2013
• Docket Number: Case No. CV 10–1592–PHX–JAT.
• Citation: 934 F.Supp.2d 1150
• Parties: Laura BREESER; et al., Plaintiffs, v. The MENTA GROUP, INC., NFP; et al., Defendants.
• Court: U.S. District Court — District of Arizona

934 F.Supp.2d 1150

Laura BREESER; et al., Plaintiffs,

v.The MENTA GROUP, INC., NFP; et al., Defendants.

Case No. CV 10–1592–PHX–JAT.

United States District Court, D. Arizona.

March 21, 2013.

Richard T. Treon, Treon Aguirre Newman & Norris PA, Phoenix, AZ, for Plaintiffs.

John Greg Coulter, Mark Ogden, Kristy Leah Peters, Littler Mendelson PC, Phoenix, AZ, Thadford A. Felton, Arnstein & Lehr LLP, Chicago, IL, for Defendants.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is Defendants' Motion for Summary Judgment (the “Motion”). (Doc. 74). Defendants have also filed a Statement of Facts in Support of their Motion for Summary Judgment. (Doc. 75). Plaintiffs have filed a Response to Defendants' Motion (Doc. 81), a controverting statement of facts disputing Defendants' statement of facts (Doc. 85), and another controverting statement of facts adding additional facts that allegedly establish a genuine issues of material fact (Doc. 86). Finally, Defendants have filed a Reply. (Doc. 90). The Court has considered the pleadings and now rules on the Motion.

I. BACKGROUND

This suit arises out of the termination of Plaintiff Laura Breeser's (“Breeser”) employment by Defendant Special Education Services (“SES”). Breeser worked for SES for approximately twenty-nine years before SES terminated her employment. The position Breeser was terminated from was Principal of the Southwest Education Center (“SWEC”) in Phoenix, Arizona. As an initial matter, the Court must determine the undisputed material facts in this case.

A. The Parties' Statements of Fact

Local Rule of Civil Procedure (“LRCiv”) 7.2(e)(1) requires motions and the responsive pleadings to be no more than seventeen pages. Local Rule 56.1(a) requires that a party moving for summary judgment file a separate statement of facts, in addition to the motion, setting forth each material fact on which the party relies in support of their motion. LRCiv 56.1(a). In addition, the rule requires that each material fact be numbered in a separate paragraph and refer to admissible portions of the record for that fact. Id. Rule 56.1(b) requires the party opposing the motion for summary judgment, the non-movant, to file a controverting statement of facts in addition to their response to the motion for summary judgment. LRCiv 56.1(b). In the controverting statement of facts the non-movant must address every one of the material facts that the moving party put forth. Id. Further, the rule requires that any additional facts that establish a genuine issue of material fact that the non-movant proffers must “be set forth in [ ] separately numbered paragraph[s] and must refer to [ ] specific admissible portion[s] of the record where the fact [s] find[ ] support.” Id.

Defendants filed their Motion for Summary Judgment in compliance with LRCiv 7.2(e)(1). See (Doc. 74). Defendants also filed an accompanying separate statement of facts pursuant to LRCiv 56.1(a), which includes seventy separately numbered material facts spanning eleven pages. See (Doc. 75). Plaintiffs filed a Response pursuant to LRCiv 7.2(e)(1). See (Doc. 81). Then Plaintiffs filed two separate statements of facts. (Doc. 85); (Doc. 86).

1. Plaintiffs' “Statement of Facts Establishing a Genuine Issue of Material Fact” (Doc. 86)

One of the statements of fact that Plaintiffs have filed is what they call “Plaintiff's [sic] Statement of Facts Establishing a Genuine Issue of Material Fact” (the “PSOFE”). (Doc. 86). This statement of facts is two pages long and is merely a list of five attachments appended to the PSOFE. See ( id.). The PSOFE is apparently additional facts that allegedly establish a genuine issue of material fact as discussed in LRCiv 56.1(b).

LRCiv 56.1(b) clearly requires any additional facts that the non-movant wants to add, “be set forth in a separately numbered paragraph and must refer to a specific admissible portion of the record where the facts find support.” Plaintiffs have failed to follow this rule.

Plaintiffs have just proffered the admissible portions of the record and nothing more. The PSOFE is only a list of five declarations of five different parties. See (Doc. 86 at 1–2). Plaintiffs have not stated what additional facts they are adding, how these additional facts create a genuine issue for trial, Plaintiffs have not numbered these additional facts in separate paragraphs, nor have Plaintiffs cited where in the admissible portion of the record the facts find support. Ostensibly Plaintiffs expect the Court to pick through the one hundred and fifty-three pages of declarations to determine if any parts of them establish genuine issues for trial. Plaintiffs refer to the PSOFE in their Response in an attempt to establish additional facts, but this is not what LRCiv 56.1(b) requires. LRCiv 56.1(b) requires additional facts to be set out in separately numbered paragraphs in the controverting statement of facts and then these additional facts must refer to admissible portions of the record.

Failure of the non-movant to comply with LRCiv 56.1(b) is ground for the Court to disregard a controverting statement of facts and deem as true the moving party's separate statement of facts in support of the motion for summary judgment. Szaley v. Pima Cnty., 371 Fed.Appx. 734, 735 (9th Cir.2010). In addition, as discussed below, see infra Section II.B.3, this Court finds only one statement in these additional facts is relevant to Defendants' Motion and that statement cites the wrong portion of the record.

2. Plaintiffs' Statement of Facts Disputing Defendants' Statement of Facts (Doc. 85)

Plaintiffs have also filed a controverting statement of facts disputing Defendants' statement of facts. (Doc. 85). This controverting statement of facts is ninety-two pages long and is also deficient under LRCiv 56.1(b). See ( id.). While LRCiv 56.1(b) does not stipulate a page limit for the separate controverting statement of facts, “LRCiv 56.1 ‘does not permit explanation and argument supporting the party's position to be included in the ... statement of facts. Argument may be made in the response or reply brief on the motion for summary judgment, but within the page limits.’ ” Marceau v. Int'l Broth. of Elec. Workers, 618 F.Supp.2d 1127, 1141 (D.Ariz.2009) (quoting Pruett v. State, 606 F.Supp.2d 1065, 1075 (D.Ariz.2009)).

In the Reply, Defendants have moved to strike fifty-seven of the seventy controverting facts that Plaintiffs put forth for containing arguments properly asserted in the Response and for offering controverting facts not supported by citation to admissible evidence or by cited testimony. (Doc. 90 at 2–4). The Court finds Plaintiffs' controverting statement of facts attempts to subvert the seventeen page limit for responsive memoranda established in LRCiv 7.2(e)(1) and add substantive argument to Plaintiffs' claims instead of only material facts as required by LRCiv 56.1(b).

Symptomatic of facts that are argumentative is Plaintiffs' denial of Defendants' material fact 10. See (Doc. 85 at 5–28). Defendants' material fact 10 is Breeser's responsibilities at SWEC. (Doc. 75 at 3 ¶ 10). Material fact 10 lists ten items that Breeser was responsible for in the position she was terminated from and spans eight lines, which includes four lines of citations to the record supporting the responsibilities listed. Id. Plaintiffs' denial of this material fact is twenty-two pages of argument in narrative form devoid of a single heading or numbered paragraph signifying an additional contradicting material fact. (Doc. 85 at 5–28) ¹. Indeed, Plaintiffs' twenty-two page so called denial of material fact 10 is immediately belied by the second sentence in it where Plaintiffs conspicuously state that “Mrs. Breeser admits that she testified as indicated in her deposition as cited by Defendant” in material fact 10. (Doc. 85 at 5).

Even if the Court were to consider Plaintiffs' twenty-two page retort, in addition to being argumentative, it presents page after page of additional factual allegations. Assuming, arguendo, these additional facts create an issue of material fact, Plaintiffs have failed to abide by Rule 56.1(b) and separately number each material fact in this statement of facts.

A district court does not have a duty to search for evidence that would create a factual dispute. See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir.2007) (citing Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001) (holding that it would be “unfair” to the district court to require it “to search the entire record” if a party fails to “disclose where in the record the evidence for [the factual claims] can be found”)). To borrow an analogy used by the Ninth Circuit Court of Appeals,

When reading [Plaintiffs' ninety-two page controverting statement of facts], one wonders if [Plaintiffs], in [their] own version of the “spaghetti approach,” ha[ve] heaved the entire contents of a pot against the wall in hopes that something would stick. [The Court] decline[s],however, to sort through the noodles in search of [Plaintiffs'] claim. As the Seventh Circuit observed in its now familiar maxim, “[j]udges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991).

Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.2003).

In addition to subverting the page requirement for Plaintiffs' arguments, many of Plaintiffs' proffered facts are not supported by cited testimony or citation to admissible evidence. Characteristic of these facts is Plaintiffs' denial of Defendants' material fact 61. See (Doc. 85 at 84–89). Defendants' material fact 61 establishes that Tammy Patrick asked Defendant William Andrew Hubble (“Hubble”) if Breeser quit, and Hubble responded “yes.” (Doc. 75 at 10 ¶ 61). Defendants cite Tammy Patrick's deposition for this fact. ( Id.) (citing Doc. 75–3 at 85–86). Turning to the deposition, which Defendants properly directed the Court to; this...