Russo v. Estée Lauder Corp.

• Decision Date: 01 March 2012
• Docket Number: No. 08–CV–3965 (TCP).,08–CV–3965 (TCP).
• Citation: 856 F.Supp.2d 437
• Parties: Daniel RUSSO, Plaintiff, v. ESTÉE LAUDER CORP., E–L Management Corp., Estée Lauder Cosmetics, Ltd., Defendants. Daniel Russo and Frederick K. Brewington, Plaintiff–Third Party Defendants, v. The Estée Lauder Companies, Inc., Estée Lauder Corp., E–L Management Corp., Estée Lauder Cosmetics, Ltd., Defendants–Third Party Plaintiffs.
• Court: U.S. District Court — Eastern District of New York

856 F.Supp.2d 437

Daniel RUSSO, Plaintiff,

v.ESTÉE LAUDER CORP., E–L Management Corp., Estée Lauder Cosmetics, Ltd., Defendants.

Daniel Russo and Frederick K. Brewington, Plaintiff–Third Party Defendants,

v.The Estée Lauder Companies, Inc., Estée Lauder Corp., E–L Management Corp., Estée Lauder Cosmetics, Ltd., Defendants–Third Party Plaintiffs.

No. 08–CV–3965 (TCP).

United States District Court, E.D. New York.

March 1, 2012.

Frederick K. Brewington, Law Offices of Frederick K. Brewington, Hempstead, NY, for Plaintiff–Third Party Defendant.

Nadine Marie Gomes Williams, Terri L. Chase, Jones Day, New York, NY, for Defendants–Third Party Plaintiffs.

MEMORANDUM AND ORDER

PLATT, District Judge.

Before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.¹ Also before the Court is plaintiff-third party defendants' motion for summary judgment on defendants-third party plaintiffs' complaint. Defendants also move to strike certain statements and documents from plaintiff's opposition to their motion for summary judgment. Finally, defendants move for sanctions against plaintiff and his attorney for violating their obligations pursuant to Federal Rule of Civil Procedure 11.

As set forth below, defendants' motion for summary judgment on plaintiff's complaint is hereby GRANTED. Plaintiff-third-party defendants' motion for summary judgment on defendants-third-party plaintiffs' complaint is hereby DENIED. Defendants' motion to strike is hereby GRANTED in part and DENIED in part. Defendants' motion for sanctions is hereby DENIED.

I. Estée Lauder's Motion to Strike

Estée Lauder moves to strike certain portions of plaintiff's memorandum in opposition to defendants' motion for summary judgment as well as portions of plaintiff's 56.1(b) counter-statement as unsupported by citations to admissible evidence. In addition, Estée Lauder moves to strike certain exhibits appended to the declaration of plaintiff's counsel Marjorie Mesidor because these exhibits are unauthenticated inadmissible documents.

To ascertain what evidence will be considered in deciding Estée Lauder's motion for summary judgment, its motion to strike will be considered first. As set forth below, defendants' motion is granted in part and denied in part.

A. Legal Standard

Local Rule 56.1(a) for the Southern and Eastern Districts requires the party moving for summary judgment to submit “a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried.” In addition, “each statement by the movant or opponent ... must be followed by citation to evidence which would be admissible” under the Federal Rules of Evidence. Local Rule 56.1(d). A court may strike those statements which are unsupported by their citations or the cited materials themselves. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001). See Watt v. New York Botanical Garden, No. 98 Civ. 1095, 2000 WL 193626, at *1 n. 1 (S.D.N.Y. Feb. 16, 2000) (“[T]he rules of this Court state that where there are no citations or where the cited materials do not support the factual assertions in the Statements, the Court is free to disregard the assertion.”).

Meanwhile, Federal Rule of Civil Procedure (“FRCP”) 56(c)(4) requires that affidavits offered in support or in opposition to a summary judgment motion “be made on personal knowledge, set out facts as would be admissible in evidence, and show that the affiant is competent to testify to the matters” stared therein. Where an affidavit or declaration contains material that does not comply with Rule 56(c)(4), a Court may either disregard or strike it from the record. Rus, Inc. v. Bay Indus., 322 F.Supp.2d 302, 307 (S.D.N.Y.2003).

B. Defendants' Motion to Strike Portions of Plaintiff's 56.1(b) Counter–Statement

Defendants contend that almost half of the paragraphs in plaintiff's Local Rule 56.1(b) counter-statement fail to controvert defendants' corresponding 56.1(a) assertions. They argue that plaintiff merely disputes their contentions without providing citations to admissible evidence that supports his opposition.

Plaintiff complains that certain of defendants' 56.1(a) statements did not consist of short and concise statements of material facts but instead quoted long passages of text from the Settlement Agreement, which do not belong in a 56.1 statement. Plaintiff also urges that some of defendants' statements consist of legal conclusions and unsupported conclusory statements and are, therefore, contrary to our Local Rule requirements. Consequently, plaintiff claims he was warranted in asking that the Court disregard those statements.

Pursuant to Local Rule 56.1(c), “[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.” “When a party has moved for summary judgment on the basis of asserted facts supported as required by FRCP 56(e), and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).

Summary judgment may not, however, be granted based merely on a party's failure to controvert its opponent's proposed statement of facts. See Holtz, 258 F.3d at 74 (“The local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.”). Thus, even when a party's Local Rule 56.1 counter-statement fails to specifically controvert the opposing party's assertions, “unsupported assertions must nonetheless be disregarded and the record independently reviewed.” Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003). See Taylor v. Harbour Pointe Homeowners Ass'n, No. 09 Civ. 257, 2011 WL 673903, at *1 n. 1 (W.D.N.Y. Feb. 17, 2011) (noting that where a plaintiff fails to controvert a 56.1 statement, “the facts set forth in defendant's Local Rule 56.1(a) Statement are deemed admitted to the extent they are supported by the record evidence”) (citing Bonilla v. Boces, No. 06 Civ. 6542, 2010 WL 3488712, at *1 (W.D.N.Y. Sept. 2, 2010)).

After an independent review of the record, the Court deems the following facts from defendants' 56.1(a) statement admitted because it finds they are relevant material facts supported by admissible evidence: 6, 10–14, 16, 20, 24, 25, 28, 29, 31, 33, 39, 41–43, 45, 46, 50–53 and 57.

Paragraph 15 of defendants' 56.1(a) statement is deemed admitted to the extent that the Agreement defines the “Effective Date” as “the date of actual receipt by Estée Lauder's counsel” of documents related to the discontinuance of the 2003 action. None of the cited evidence, however, demonstrates that Estée Lauder's received the documents no earlier than January 14, 2004, the date of the filing of the Stipulation of Discontinuance in the 2003 action.

Paragraph 34 is deemed admitted to the extent that Russo testified that he believed his last day worked was January 9, 2003. Dec. Mesidor, Exh. C, Tr. Russo 132:20–133:6. Accordingly, defendants' motion to strike portions of plaintiff's 56.1(b) statement is hereby granted to the extent indicated above.

C. Defendants' Motion to Strike Factual Assertions in Plaintiff's 56.1 Statement

Defendants contend that if the factual assertions and cited authority in their's and plaintiff's statements are compared, the authorities cited by plaintiff in certain paragraphs of his 56.1(b) statement do not support his factual assertions and do not contradict Estée Lauder's factual assertions. Plaintiff argues that defendants mischaracterize and misquote the evidentiary support relied upon and his responsive statement highlights these inconsistencies.

“[A] Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.” Giannullo, 322 F.3d at 140. Rather, where the record contains no support for a party's factual assertion, such statements are properly stricken.

Based on its independent review of the record, including the deposition testimony and documents cited by the parties in their statements, the Court deems the following paragraphs from defendants' 56.1(a) statement admitted: 17, 21–23 and 44.

Defendants' paragraph 18 is deemed admitted to the extent that plaintiff testified that the insert to the Settlement Agreement is unambiguous and sets forth the terms of the parties' agreement, which, according to plaintiff, obligated Estée Lauder to treat him as an active employee through February 29, 2004 for the purposes of the LTD plan.

With regard to defendants' paragraph 40, Estée Lauder's long-term disability carrier Continental Casualty Company (“CNA”) representative Sauerhoff testified that after plaintiff's LTD application was denied and during the appeals process, said plaintiff argued that he was disabled, as that term is defined under Estée Lauder's LTD plan, prior to January 9, 2003 and he continued to make that argument throughout the appeals process. Dec. Mesidor, Exh. D., Tr. Sauerhoff 60:6–16. Sauerhoff also testified that at the end of his appeal request, he advised CNA that he had enclosed several pay stubs proving his salary and deductions for his LTD benefits after January 9, 2003. Id. at 60:20–24. Sauerhoff further testified that plaintiff never submitted any medical information supporting his claimed inability to continue working full-time prior to the time he was terminated. Id. at 64:7–18. Nor did he provide any...