United States v. Baxter

• Decision Date: 10 January 2012
• Docket Number: No. 1:10–CV–00435–JAW.,1:10–CV–00435–JAW.
• Parties: UNITED STATES of America, Plaintiff, v. Glenn A. BAXTER, Defendant.
• Court: U.S. District Court — District of Maine

841 F.Supp.2d 378

UNITED STATES of America, Plaintiff,

v.Glenn A. BAXTER, Defendant.

No. 1:10–CV–00435–JAW.

United States District Court,

D. Maine.

Jan. 10, 2012.

Evan J. Roth, U.S. Attorney's Office, Portland, ME, for Plaintiff.

Glenn A. Baxter, Belgrade, ME, pro se.

ORDER ON MOTION FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

The United States seeks summary judgment against Glenn A. Baxter, a Federal Communications Commission (FCC) amateur radio licensee, for forfeitures based on three asserted violations of the Communications Act of 1934(Act) and its regulations: 1) failure to respond to an FCC inquiry in violation of 47 U.S.C. § 308; 2) willful or malicious interference with other radio transmissions in violation of 47 C.F.R. § 97.101(d); and 3) engaging in communications in which he has a pecuniary interest in violation of 47 C.F.R. § 97.113(a)(3). The Court concludes that summary judgment is appropriate for the Defendant's failure to respond and malicious interference but that summary judgment is not appropriate for the last claimed forfeiture because there are genuine issues of material fact as to whether he engaged in communications in which he had a pecuniary interest.

I. STATEMENT OF FACTSA. Procedural Background

On October 25, 2010, the United States of America (the Government) filed a complaint in this Court against Glenn A. Baxter, seeking to reduce to judgment an unpaid FCC forfeiture order for $21,000 under Section 503(b) of the Act, 47 U.S.C. § 503(b). Compl. (Docket # 1). On November 5, 2010, the Government filed an amended complaint. Am. Compl. (Docket # 4). The same day, Mr. Baxter, acting pro se, filed an answer, Answer and $50,000,000 Countersuit (Docket # 5), and on November 18, 2010, an amended answer and counterclaim, Verified Answer to Am. Compl. and Am. $50,000,000 Countersuit ( Am. Ans.) (Docket # 8). The Government moved to dismiss Mr. Baxter's counterclaim on a variety of grounds and the Court granted the Government's motion. Order on Mot. to Dismiss Am. Countercl. (Docket # 26).

On May 18, 2011, the Government moved for summary judgment, seeking judgment for violations of five separate FCC rules and regulations in the full amount of the FCC's forfeiture order: $21,000. Mot. for Summ. J. (Docket # 23) ( Gov't's Mot.). On June 1, 2010, Mr. Baxter filed his response. Verified Opp'n to Gov't Mot. for Summ. J. (Docket # 28) ( Def's Opp'n ). On June 23, 2010, the Government replied. Reply Mem. in Support of Mot. for Summ. J. (Docket # 32) ( Gov't's Reply ). In its reply, the Government amended its motion for summary judgment, seeking judgment in the amount of $14,000 for three alleged violations: 1) failure to respond to an FCC inquiry, a violation of 18 U.S.C. § 308; 2) willful or malicious interference with other radio transmissions, a violation of 47 C.F.R. § 97.101(d); and 3) communications in which an amateur licensee has a pecuniary interest, a violation of 47 C.F.R. § 97.113(a)(3). Id. at 1, 7.

On June 28, 2011, Mr. Baxter filed a sur-response, Def.'s Resp. to Pl.'s Reply Mem. in Support of Mot. for Summ. J. (Docket # 34) ( Def.'s Sur–Resp.), and an amended response to the Government's motion for summary judgment, Def.'s Am. Resp. to Mot. for Summ. J. (Docket # 36) ( Def.'s Am. Opp'n ).

With its summary judgment motion, the Government filed a statement of material facts. Gov't's Statement of Undisputed Material Facts (Docket # 24) (PSMF). Mr. Baxter did not respond to the Government's statement of facts; instead, on June 1, 2011, he filed a separate statement of facts. Def.'s Material Facts as to Where a Genuine Issue Needs to be Tried Before a Requested Jury by Trial De Novo (Docket # 29) (DSMF). On June 23, 2011, the Government filed a reply to Mr. Baxter's statement of facts. Reply Statement of Material Facts (Docket # 33) (PRDSMF). On June 28, 2011, Mr. Baxter filed a sur-response to the Government's reply statement of material facts, Def.'s Resp. to Pl.'s Reply Statement of Material Facts (Docket # 35) (DRPRDSMF), and a response to the Government's original statement of material facts, Def.'s Am. Resp. to Pl.'s Statement of Material Facts (Docket # 37) (DARPSMF).

B. Glenn A. Baxter's Failure to Comply with Local Rule 56

Mr. Baxter has delayed the Court's work and made its job substantially more difficult by failing to comply with Local Rule 56. See D. Me. Loc. R. 56; DSMF; DARPSMF; DRPRDSMF. On May 18, 2011, the Government duly filed with its motion a Statement of Material Facts, consisting of thirty-three asserted statements, supported by appropriate record citations in conformance with Local Rule 56(b). PSMF.

Upon the filing of the movant's statement of material facts, Local Rule 56(c) requires a party opposing a motion for summary judgment to submit an opposing statement that “shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts, and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule.” D. Me. Loc. R. 56(c). Instead on June 1, 2011, Mr. Baxter filed a document entitled “Material Facts as to Where a Genuine Issue Needs to be Tried Before a Requested Jury by Trial De Novo.” DSMF. In this document, Mr. Baxter cites numerical references; however, the Court could not coordinate his numbered references with any of the documents in the case. He also makes factual assertions, which under Local Rule 56(c) should have been placed in his opposing statement of material facts. D. Me. Loc. R. 56(c). On June 23, 2011, the Government replied to Mr. Baxter's filing, noting that he had failed to comply with the Local Rules and asking that in accordance with Local Rule 56(f), the Government's statements be deemed admitted. PRDSMF at 1–2.

On June 28, 2011, Mr. Baxter filed two documents: 1) “Defendant's Amended Response to Plaintiffs Statement of Material Facts” (DARPSMF), with an attachment entitled “Amended Material Facts as to Where a Genuine Issue Needs to be Tried Before a Requested Jury by Trial De Novo” (DASMF); and 2) “Defendant's Responseto Plaintiffs Reply Statement of Material Facts” (DRPRDSMF). The Amended Response stated:

Now comes Glenn A. Baxter, P.E., K1MAN, Defendant, and makes this sworn affidavit of his own personal knowledge regarding the Plaintiffs above referenced pleading and claims that there are genuine issues of material facts to be tried by the requested trial de novo. To comply with local Rule 56 with minimum confusion for the Court, Defendant made hand notations on Plaintiffs original pleadings with reference numbers designated by # 1, # 2, # 3, etc., to refer to Defendant's Master Response Key as follows:

# 1 Admit: Defendant admits Plaintiffs pleading but claims that this (these) is (are) a genuine issue (issues) of material fact(s) that need(s) to be tried by a jury.

# 2 Deny: Defendant denies Plaintiffs pleading and claims that this (these) is (are) a genuine issue (issues) of material facts(s) that need(s) to be tried by a jury.

...

# 9 Qualify: Defendant neither admits nor denies Plaintiffs pleading but claims that there are genuine issues of material fact that need to be tried by a jury.

DARPSMF at 1. Mr. Baxter also attached a copy of the Government's Statement of Material Facts with handwritten notations. DARPSMF Attach. 1 (PSMF with notations ). For example, the notation for paragraphs 1 (in part), 4, 5, and 12 is “# 1,” in which Mr. Baxter admits the statements. The notation for paragraphs 1 (in part), 6, 13 (in part), and 14–30 is “# 2,” in which he denies the statements. The notation for paragraphs 1 (in part), 2–3, 7–11, 31–33 is “# 9,” in which he posits a qualified response. Although unorthodox, the Court accepts Mr. Baxter's Master Response Key approach and uses it to determine whether he has admitted, denied, or interposed a qualified response to each statement.

The Local Rule requires more. In general, if an opposing party denies or qualifies his response, the Rule requires that he explain why by reference to the record:

The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule.

D. Me. Loc. R.. 56(c) (emphasis supplied). Presumably in an attempt to comply with this part of the Rule, Mr. Baxter also set forth a total of thirty-six paragraphs with assertions, beginning with number 4 and continuing through number 36 (without number 9). DARPSMF at 2–6. For example, number 4 reads:

Mere reference to a licensee's web site in a non commercial and non pecuniary context does not violate FCC Rule 97.113(a)(3) which bans transmissions over amateur radio with a pecuniary interest for the licensee. This is a genuine issue of material fact as to whether the licensee had any pecuniary intent or received as much as one dime if (sic) income on a case by case basis with regard to the web site reference and should be decided only by a jury.

DARPSMF at 2. It is extremely difficult to place each of these paragraphs in context, especially because each contains an assertion but none cites the record in support.

Regarding his Amended Material Facts as to Where a Genuine Issue Needs to be Tried Before a Requested Jury by Trial De Novo, Mr. Baxter begins with a series of statements in an effort to refute the Government's case. DASMF at 1–3. He then presents sixteen numbered items, containing various factual and legal assertions. Id. at 3–12.

Mr. Baxter's idiosyncratic responses to the court-sanctioned summary judgment process have placed the Court in an awkward position. Court rules must be followed by all litigants in order to maintain a level playing field. Thus, “ pro se litigants are not excused from complying with the Federal Rules of Civil Procedure or the Local Rules of this district.”...