Latimore v. Trotman

• Docket Number: Civil Action 14-13378-MBB
• Decision Date: 03 December 2021
• Parties: JASON LATIMORE, Plaintiff, v. KENNETH TROTMAN, RYAN DORGAN, ROSEANNE BARROWS, RICHARD LIBBY, PAULA SULLIVAN, and DANIEL ALLEN, Defendants.
• Court: U.S. District Court — District of Massachusetts

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JASON LATIMORE, Plaintiff, v. KENNETH TROTMAN, RYAN DORGAN, ROSEANNE BARROWS, RICHARD LIBBY, PAULA SULLIVAN, and DANIEL ALLEN, Defendants.

Civil Action No. 14-13378-MBB

United States District Court, D. Massachusetts

December 3, 2021

MEMORANDUM AND ORDER RE: DEFENDANTS KENNETH TROTMAN RYAN DORGAN, ROSEANNE BARROWS, RICHARD LIBBY, PAULA SULLIVAN AND DANIEL ALLEN'S MOTION TO STRIKE PLAINTIFF'S STATEMENT OF DISPUTED FACTS (DOCKET ENTRY # 258)

MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

Pending before this court is a summary judgment motion filed by defendants Kenneth Trotman (“Trotman”), Ryan Dorgan (“Dorgan”), Roseanne Barrows (“Barrows”), Paula Sullivan (“Sullivan”), Daniel Allen (“Allen”) and Richard Libby (collectively “defendants”). (Docket Entry # 242). Defendants move to strike certain material from being used in consideration of their motion for summary judgment. (Docket Entry # 258). Plaintiff Jason Latimore (“plaintiff”) opposes the motion. (Docket Entry # 260).

BACKGROUND

On May 17, 2019, defendants filed a Local Rule 56.1 (“LR. 56.1”) statement of material facts (“defendants' LR. 56.1 statement”) in conjunction with their motion for summary judgment. (Docket Entry ## 242, 244). On July 22, 2019, plaintiff filed a LR. 56.1 statement of disputed facts in support of his opposition to the summary judgment motion (“plaintiff's LR. 56.1 statement”). (Docket Entry # 256). Defendants seek to strike all paragraphs in plaintiff's LR. 56.1 statement because they: (1) are not supported by adequate citations to the summary judgment record and fail to controvert the facts in defendants' LR. 56.1 statement (Docket Entry # 259, pp. 2-4); and (2) rely on “inadmissible hearsay, ” speculation, legal argument, conclusory statements, and subjective beliefs (Docket Entry # 259, pp. 1-3, 5). In addition to these arguments attacking all of the paragraphs, defendants argue that paragraphs 44 to 101 in plaintiff's LR. 56.1 (which describe contents of inaudible audiovisual recordings on May 29, 2014) are not authenticated and include plaintiff's interpretation of the inaudible audiovisual recordings. (Docket Entry # 259, pp. 4-5). Defendants also seek to strike exhibits A1 to A11 and B1 to B6 (which consist of plaintiff's handwritten transcript of audio video recordings), on the grounds they are not authenticated and constitute inadmissible evidence. (Docket Entry ## 258, 259). Defendants further move to strike the paragraphs that rely exclusively on exhibits A1 to A11 and B1 to B6 (Docket Entry # 252-1, pp. 101-117). (Docket Entry # 259, p. 8).

On December 23, 2019, approximately four and a half months after defendants filed the motion to strike, plaintiff filed an opposition to the motion. (Docket Entry # 260). The three-page opposition globally maintains that: (1) the evidence submitted in plaintiff's LR. 56.1 statement and the exhibits cited are admissible; and (2) defendants fail to establish that the motion to strike plaintiff's LR. 56.1 statement should be granted.^[1](Docket Entry # 260). On January 7, 2020, defendants filed a reply to plaintiff's opposition on the basis it is untimely and fails to substantively oppose defendants' arguments to strike plaintiff's LR. 56.1 statement. (Docket Entry ## 262, 263).

DISCUSSION

A. Untimeliness of Plaintiff's Opposition

As noted, defendants seek to strike plaintiff's opposition as untimely. (Docket Entry # 262, p. 1) (Docket Entry # 263, pp. 1-3)). Local Rule 7.1(B)(2) requires a party to file an opposition within 14 days after service of the motion. See LR. 7.1(B)(2). When a party fails to file a timely opposition, a court may consider the motion unopposed or the opposition waived and allow the motion. NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7-8 (1st Cir. 2002) (when party fails to file timely opposition, court may consider it unopposed); see also Cronin v. Commonwealth of Mass., Civil Action No. 03-11749-RGS, 2004 WL 224565, at *1 (D. Mass. Feb. 5, 2004) (granting motion to dismiss when no opposition filed or extension sought); Cook v. McLaughlin, 917 F.Supp. 79, 81 (D. Mass. 1996) (opposition untimely and stricken for not filing in 14 days) (citation omitted).

The decision of whether to allow an unopposed motion, however, is within a court's discretion. Ramsdell v. Bowles, 64 F.3d 5, 7 (1st Cir. 1995) (acknowledging district court's “‘great leeway in the application and enforcement of its local rules'”) (citation omitted); United States v. Roberts, 978 F.2d 17, 20 (1st Cir. 1992) (district court has “great leeway in the application and enforcement of its local rules”). Exercising this court's discretion and in preference of a merits-based decision, allowing the motion to strike based on plaintiff's untimely opposition is not appropriate.

B. Failure to Respond to Numbered Paragraphs and Waiver

Defendants submit that plaintiff's LR. 56.1 statement (Docket Entry # 256) does not respond to the numbered paragraphs in defendants' LR. 56.1 statement on a paragraph-by-paragraph basis. (Docket Entry # 259, pp. 1, 3-4). They seek to strike plaintiff's entire LR. 56.1 statement and, “[w]ithout waiving their general motion to strike all relevant portions, ” move to strike certain paragraphs. (Docket Entry # 259, pp. 1, 3-4). In lieu of striking plaintiff's entire LR. 56.1 statement because it does not controvert defendants' 61-paragraph LR. 56.1 statement (Docket Entry # 244), this court, in its discretion, will examine the paragraphs based on the arguments defendants proffer. See Swallow v. Fetzer Vineyards, 46 Fed.Appx. 636, 638- 39 (1st Cir. 2002) (affirming lower court's striking entire response but noting approach was not “useful for purposes of the complex factual analysis this case requires”) (unpublished); Aulisio v. Baystate Health Sys., Inc., Civil Action No. 11-30027-KPN, 2012 WL 3957985, at *2 (D. Mass. Sept. 7, 2012) (rejecting defendant's argument to strike entirety of plaintiff's LR. 56.1 statement); see also Mackey v. Town of Tewksbury, Civil Action No. 15-12173-MBB, 2020 WL 68243, at *5 (D. Mass. Jan. 7, 2020) (examining specific paragraphs rather than striking entire LR. 56.1 statement).

Defendants additionally argue in the reply brief that plaintiff provides “no substantive opposition” to rebut their arguments to strike plaintiff's LR. 56.1 statement. (Docket Entry # 263, p. 1). Plaintiff's opposition to the motion to strike raises conclusory and general arguments that do not address defendants' specific arguments in their supporting memorandum (Docket Entry # 259) except for the argument to strike exhibits A1 to A11 and B1 to B6. (Docket Entry # 260). Except for the argument regarding exhibits A1 to A11 and B1 to B6, plaintiff therefore waives any other objection to the motion to strike. See Curet-Velázquez v. ACEMLA de Puerto Rico, Inc., 656 F.3d 47, 54 (1st Cir. 2011); Coons v. Industrial Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010). This court does not intend to avoid this waiver (which this court reserves as a basis to strike the paragraphs in plaintiff's LR. 56.1 statement that are stricken on other grounds) and addresses the merits of defendants' other arguments as an alternative means to strike these paragraphs. See Negron-Almeda v. Santiago, 528 F.3d 15, 26 (1st Cir. 2008) (stating “rule” that if party belatedly raises argument “in the district court but that court, without reservation, elects to decide it on the merits, the argument is deemed preserved for later appellate review”) (emphasis added).

C. LR. 56.1

Under LR. 56.1, a nonmoving party admits any fact in the moving party's LR. 56.1 statement if the nonmoving party fails to controvert the fact in the nonmoving party's LR. 56.1 statement by citing to “affidavits, depositions and other documentation.” LR. 56.1. Defendants therefore seek to establish that the paragraphs in plaintiff's LR. 56.1 statement fail to controvert the facts in defendants' corresponding LR. 56.1 statement and thereby admit the facts in defendants' LR. 56.1 statement. (Docket Entry # 259).

As noted, district courts “‘enjoy broad latitude'” in administering and enforcing local rules. NEPSK, 283 F.3d at 6 (citation omitted). As an anti-ferret rule, LR. 56.1 functions to focus a court's attention on the facts that are genuinely disputed. See Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007) (citation omitted); accord CMI Capital Mkt. Inv., LLC v. González-Toro, 520 F.3d 58, 62 (1st Cir. 2008) (purpose of “rule is to relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute”); Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007). The rule is designed “to reduce the burden on trial courts and ‘prevent parties from unfairly shifting the burdens of litigation to the court.'” Advanced Flexible Cirs., Inc. v. GE Sensing & Inspection Techs. GmbH, 781 F.3d 510, 520-21 (1st Cir. 2015) (quoting Cabán Hernández, 486 F.3d. at 8).

In pertinent part, the rule requires the party opposing summary judgment to:

include a concise statement of material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation . . . Material facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by opposing parties unless controverted by the statement required to be served by opposing parties.

LR. 56.1 (emphasis added). Relative to the present dispute the language requires the nonmoving party (plaintiff) to provide citations to the record, i.e., “affidavits, depositions, or other documentation, ” with page...