Perry v. Zoetis LLC

• Decision Date: 20 May 2020
• Docket Number: 4:18CV3128
• Parties: BARBARA PERRY, Plaintiff, v. ZOETIS LLC, Defendant.
• Court: U.S. District Court — District of Nebraska

BARBARA PERRY, Plaintiff, v. ZOETIS LLC, Defendant.

4:18CV3128

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 20, 2020

MEMORANDUM AND ORDER

Barbara Perry ("Plaintiff" or "Perry") claims her former employer, Zoetis LLC ("Defendant" or "Zoetis"), engaged in discriminatory wage practices based on sex, in violation of Neb. Rev. Stat. § 48-1219 et seq. (commonly known as the Nebraska Equal Pay Act ("NEPA")), and constructively discharged her after she was subjected to gender-based employment discrimination, in violation of the Nebraska Fair Employment Practice Act ("NFEPA"), Neb. Rev. Stat. § 48-1101 et seq. No federal claims are alleged.¹

This matter is now before the court on cross-motions for summary judgment (Filing Nos. 40, 43). Plaintiff has also moved to strike the portion of Defendant's motion for summary judgment that relates to her NEPA claim (Filing No. 63).

I. Plaintiff's Motion to Strike

Plaintiff's motion to strike is procedurally improper and will be denied.² Rule 12(f) of the Federal Rules of Civil Procedure provides that a "court may orderstricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f) (emphasis supplied). A motion is not a pleading. See Fed. R. Civ. P. 7(a); 5C Wright & Miller, Federal Practice and Procedure § 1380 (3d ed.) ("Rule 12(f) motions only may be directed towards pleadings as defined by Rule 7(a); thus motions, affidavits, briefs, and other documents outside of the pleadings are not subject to Rule 12(f)."); Milk Drivers, Dairy & Ice Cream Employees, Laundry & Dry Cleaning Drivers, Clerical & Allied Workers, Local Union No. 387 v. Roberts Dairy, 219 F.R.D. 151, 152 (S.D. Iowa 2003) ("[A] motion to strike a motion for summary judgment is inappropriate and should be denied."); Luer v. St. Louis Cty, No. 4:17-CV-00767-NAB, 2018 WL 6064862, at *13 (E.D. Mo. Nov. 19, 2018) ("Neither a motion for summary judgment, nor its accompanying memorandum in support, nor the attached statement of uncontroverted facts is a pleading, and courts in this district have generally not permitted parties to attack such non-pleadings through motions to strike.").

II. Cross-Motions for Summary Judgment

A. Procedure

"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a).

The moving party bears the initial responsibility of informing the court of the basis for the motion, and must identify those portions of the record which the moving party believes show the lack of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does so, the burden then shifts to the nonmoving party, who "may not rest upon mereallegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946 F.3d 420, 424 (8th Cir. 2019).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

This court's local rules further specify that "[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts," which "should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph." NECivR 56.1(a) (emphasis in original). "The statement must not contain legal conclusions." Id. The opposing party's brief must include "a concise response to the moving party's statement of material facts." NECivR 56.1(b)(1). "Each material fact in the response must be set forth in a separate numbered paragraph, must include pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant's statement of material facts that is disputed." Id. The moving party may, but is not required, to reply to the opposing party's response. See Metro. Prop. & Cas. Ins. Co. v. Westport Ins. Corp., 131 F. Supp. 3d 888, 892 n. 2 (D. Neb. 2015).

A party's failure to comply with these requirements can have serious consequences: The moving party's "[f]ailure to submit a statement of facts" or "[f]ailure to provide citations to the exact locations in the record supporting the factual allegations may be grounds to deny the motion for summary judgment." NECivR 56.1(1)(a) (emphasis omitted). On the other hand,"[p]roperly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." NECivR 56.1(1)(b)(1) (emphasis omitted).

B. The Parties' Statements of Material Facts

1. Defendant's Statement

On February 7, 2020, Defendant, as the moving party, filed a 55-paragraph statement of material facts it contends are undisputed (Defendant's Statement of Material Facts ("DSMF"), Filing No. 46, pp. 1-10).³ Plaintiff responded to each paragraph of Defendant's statement on March 9, 2020 (Plaintiff's Response to Material Facts ("PRMF"), Filing No. 61, pp. 3-12), and also set out in her opposing brief a largely redundant, 62-paragraph statement of additional facts, numbered as paragraphs 56 through 116 (Plaintiff's First Statement of Additional Facts ("PSAF1"), Filing No. 61, pp. 12-23).⁴ On March 16, 2020, Defendant filed a reply brief, in which it responded to each paragraph of Plaintiff's statement of additional facts (Defendant's Response to Additional Facts ("DRAF"), Filing 70, pp. 4-7) and added six new paragraphs of its own (incorporated by references to Defendant's brief in opposition to Plaintiff's motion for summary judgment), which are numbered as paragraphs 117 through 122 (Defendant's Second Statement of Additional Facts ("DSAF2") ibid., p. 8).

Plaintiff concedes in her response that paragraphs 2, 4, 7-13, 17,⁵ 20-22, 24, 26-28, 34, 38, and 45-47 of Defendant's Statement of Material Facts are undisputed.

In addition, Plaintiff does not dispute paragraphs 1, 3, 5, 6, 14-16, 19, 29-33, and 35 of DSMF, although she includes additional facts or arguments in her responses to these paragraphs. Defendant contends "[t]he Court should deem those facts undisputed and disregard Plaintiff's additional factual assertions and legal argument after admitting the fact is not in dispute." (Filing 70, p. 3.) The court will deem the paragraphs admitted. See NECivR 56.1(b)(1); Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th Cir. 2014) ("If no objections have been raised in the manner required by the local rules, a district court will not abuse its discretion by admitting the movant's facts."); Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 798-800 (8th Cir. 2014) ("[The non-movant's] inclusion of 'additional material facts' in her opposing brief did not comply with these requirements [of NECivR 56.1(b)(1)]. Although numbered and referenced with pinpoint references, nowhere in [the non-movant's] fact section does she dispute any undisputed fact advanced by [the movant]. Accordingly, the district court properly considered the movant's material facts admitted."). However, the court will consider Plaintiff's additional facts to the extent they are properly supported by the record and capable of being presented at trial in admissible form. See Fed. R. Civ. P. 56(c); Jenkins v. Winter, 540 F.3d 742, 747 (8th Cir. 2008) (holding that district court should have considered employee's statement of facts presented in opposition to employer's summary judgment motion, where employee followed local rule by separately listing facts as to which she contended a genuine issue existed and referring specifically to portions of record).

Plaintiff "disputes" paragraphs 18, 23, 25, 36, 37, 39-44, 48-55 of DSMF, but her responsive statements do not actually controvert the facts stated in paragraphs 18, 23, 25, 36, 37, 39-44, 48, 49, 54, and 55. With respect the remaining four paragraphs (50-53), the court finds there is at least some dispute regarding the facts stated. These disputed facts, however, are not outcome determinative.

The court will not here analyze Plaintiff's Statement of Additional Facts (paragraphs 56-116), or Defendant's responses and objections thereto, but will give due consideration to any additional facts stated by the parties that are properly supported by the record and capable of being presented at trial in admissible form. See Tramp, 768 F.3d at 800 (finding no abuse of discretion in district court's "not spend[ing] any time parsing through [the non-movant's statement of additional facts] to discern which of them were included to refute facts advanced by [the movant].").

2. Plaintiff's Statement

Plaintiff's brief in support of her motion for summary judgment was filed on February 7, 2020 (the same...