Welch v. City of Albuquerque
| Decision Date | 07 November 2016 |
| Docket Number | Civ. No. 11-700 KG/SCY |
| Parties | TERYSA M. WELCH, Plaintiff, v. CITY OF ALBUQUERQUE, a New Mexico Municipality; RAYMOND SCHULTZ, ELIZABETH PAIZ, WILLIAM ROSEMAN, JOSEPH HUDSON, DAVID HUBBARD, ROBERT SMITH, CECIL KNOX, J.R. POTTER, KEVIN GAGNE, SUE NEAL, and JANE DOES I-V, individually and as agents and employees of the City of Albuquerque, Defendants. |
| Court | U.S. District Court — District of New Mexico |
This matter comes before the Court upon "Defendants Raymond Schultz, William Roseman, David Hubbard, Cedcil [sic] Knox, Robert Smith, J.R. Potter and Kevin Gagne's Motion for Summary Judgment Based on Qualified Immunity and on Plaintiff's Inability to Support Claims," and supporting memorandum both filed on October 9, 2013 (collectively, Motion for Summary Judgment). (Docs. 112 and 113). Defendants Schultz, Roseman, Hubbard, Knox, Smith, Potter, and Gagne (collectively, Conspiracy Defendants) seek (1) summary judgment on Count II of Plaintiff's Second Amended Complaint (Doc. 88), which alleges conspiracy claims under 42 U.S.C. §§ 1983 and 1985, and (2) an award of attorney's fees and costs. On June 27, 2016, Plaintiff filed her third amended response, in which she opposes the Motion for Summary Judgment and, in the alternative, moves the Court under Fed. R. Civ. P. 56(d)(1) to defer ruling on the Motion for Summary Judgment until she conducts further discovery. (Doc. 218). On July 11, 2016, Conspiracy Defendants filed a third amended reply in which they move to strike Plaintiff's Amended Affidavit and unsworn expert reports. (Doc. 220). Having considered the Motion for Summary Judgment and the accompanying briefing, the Court denies Plaintiff's Rule 56(d)(1) request, strikes the unsworn expert reports, grants the Motion for Summary Judgment, and denies Conspiracy Defendants' request for an award of attorney's fees and costs.
In addition to opposing the Motion for Summary Judgment, Plaintiff filed an amended Rule 56(d) affidavit to support her request that the Court defer ruling on the Motion for Summary Judgment until she conducts discovery.1 See (Doc. 218-3). To obtain relief under Rule 56(d), the party seeking additional time to conduct discovery must " FDIC v. Arciero, 741 F.3d 1111, 1116 (10th Cir. 2013) (quoting Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir. 2006)). "Unless dilatory or lacking in merit," a party's Rule 56(d) request "should be liberally treated." Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir. 1993) (internal quotation marks and citations omitted). The decision to grant additional discovery under Rule 56(d) is within the district court's discretion. Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984); see also Pfenninger v. Exempla, Inc., 116 F.Supp.2d 1184,1194 (D.Colo. 2000) ().
Plaintiff's counsel contends in his amended affidavit that conducting depositions will aid in authenticating numerous documents attached to her third amended response and confirm factual statements made in interview transcript excerpts also attached to the third amended response. (Doc. 218-3) at ¶ 10. Moreover, Plaintiff's counsel asserts that allowing written discovery and 22 depositions "will reveal additional material facts directly relevant to Ms. Welch's Second Amended Complaint." Id. at ¶¶ 9 and 10.
The Court notes that "[a] court may consider unauthenticated documents submitted in support of or opposition to a motion for summary judgment if the opposing party does not challenge authenticity." Carrasco v. New Mexico Dep't of Workforce Sols., 2013 WL 12092509, at *9 (D.N.M.) (citing Noblett v. Gen. Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir. 1968) (citations omitted)). Here, Conspiracy Defendants do not challenge the authenticity of Plaintiff's documents. Consequently, the Court will consider those documents, thereby making additional discovery to authenticate those documents unnecessary.
With respect to the interview transcript excerpts, the Court observes that they do not comply with Fed. R. Civ. P. 30(f) which requires a certification from the court reporter "that the witness was duly sworn and that the deposition accurately records the witness's testimony." Nonetheless, it is well-established in the Tenth Circuit that "[w]hile the party opposing summary judgment need not produce evidence in a form that would be admissible at trial, the content or substance of the evidence must be admissible." Carrasco, 2013 WL 12092509, at *8 (quoting Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164, 1170 (10th Cir. 2009)). Although Plaintiff, in this case, refers to the transcript excerpts as "sworn" and Conspiracy Defendantsnote that one of the excerpts is "unsworn," Conspiracy Defendants do not otherwise challenge the authenticity or accuracy of the excerpts. See, e.g., (Doc. 218) at 2-3 (); (Doc. 220) at 5, ¶ B (). Because Conspiracy Defendants do not challenge the authenticity or accuracy of the transcript excerpts, and because the excerpts only lack the court reporter's certificate, the Court will consider those excerpts. Accordingly, additional discovery to "[c]onfirm the factual statements made in the transcript excerpts" is unnecessary. See (Doc. 218-3) at ¶ 10(b). See also Kornberg v. United States, 2015 WL 3407530, at *3 fn. 17 (D. Nev.) ().
Furthermore, Plaintiff's counsel fails to indicate in his amended affidavit what "probable facts" are not available to Plaintiff which would specifically rebut Conspiracy Defendants' contention that there are no genuine issues of material fact with respect to Count II.2 Instead, Plaintiff's counsel generally contends that "discovery will reveal additional material facts" relevant to the Second Amended Complaint. Such a general contention, not tailored to Count II, is merely an improper request to conduct a fishing expedition for information. See Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184, 1208 (10th Cir. 2015) () (brackets and internal quotation marks omitted)). See also Ramirez v. Hart, 2014 WL 2170376, at *4 (W.D. Wash.) (). Plaintiff has not convinced the Court that it should defer ruling on theMotion for Summary Judgment until Plaintiff conducts further discovery. The Court, therefore, denies Plaintiff's Rule 56(d)(1) request.
Conspiracy Defendants move to strike Plaintiff's Amended Affidavit (Doc. 218-1) in its entirety, because it continues to (1) consist of 13 single-spaced pages, and (2) violate Fed. R. Civ. 56(c)(4) by not being based on personal knowledge, not setting forth admissible facts, and containing unsupported argument.
On May 13, 2016, the Court ruled on Conspiracy Defendants' second motion to strike Plaintiff's original 13-page single-spaced affidavit, which Plaintiff filed with her second amended response to the Motion for Summary Judgment. (Doc. 209). The Court denied Conspiracy Defendants' request to strike that affidavit and stated that the Court would simply not consider any portion of the affidavit which does not conform with Rule 56(c)(4). Id. at 5-7. However, to clarify the affidavit, the Court allowed Plaintiff to file an amended affidavit in compliance with Rule 56(c)(4). Id. at 8-9. In response to the Court's order, Plaintiff filed an Amended Affidavit in support of her third amended response.
Although the Amended Affidavit still contains portions not in compliance with Rule 56(c)(4), the Court will simply disregard those portions and entertain the portions of the Amended Affidavit which do comply with Rule 56(c)(4). This approach better serves the interest of justice than striking the Amended Affidavit in its entirety or allowing yet another amended affidavit, amended response, and amended reply. Thus, the Court denies Conspiracy Defendants' request to strike Plaintiff's Amended Affidavit in its entirety.
Conspiracy Defendants also move to strike two unsworn expert reports submitted by Plaintiff in support of her third amended response. (Docs. 218-2 and 218-22). The Tenth Circuit recently acknowledged that "unsworn expert reports are not competent evidence on summary judgment." Peak ex rel. Peak v. Cent. Tank Coatings, Inc., 606 F. App'x 891, 895 (10th Cir. 2015). The Court will, therefore, strike Plaintiff's unsworn expert reports.
This is an employment lawsuit brought by a female Albuquerque Police Department (APD) detective. Plaintiff alleges that while working for APD's Repeat Offender Program (ROP), a program of the Special Investigations Division (SID), she was subjected to a hostile and harassing work environment and was treated disparately because of her gender. Plaintiff sued numerous individuals including the following Conspiracy Defendants: APD Chief of Police Schultz, APD supervisor Roseman,3 APD ROP supervisor Hubbard, APD Internal Affairs (IA) supervisor Knox (now deceased), APD SID supervisor Smith, APD ROP detective Potter, and APD ROP...
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