Free Motion to Strike - District Court of Connecticut - Connecticut

Case 3:03-cv-00644-CFD

Document 265

Filed 01/23/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT __________________________________________ BRUCE CHARLES RYAN, RUSSELL ) WILLIAM NEWTON, ROBERT FITZPATRICK, ) and MERIT CAPITAL ASSOCIATES, INC., ) Plaintiffs, ) ) v. ) ) NATIONAL UNION FIRE INSURANCE ) COMPANY OF PITTSBURGH, PA., and ) AIG TECHNICAL SERVICES, INC., ) Defendants. ) __________________________________________) DAVID W. GWYNN and RAQUEL GWYNN ) Plaintiffs, ) ) v. ) ) NATIONAL UNION FIRE INSURANCE ) COMPANY OF PITTSBURGH, PA., and ) AIG TECHNICAL SERVICES, INC., ) Defendants. ) __________________________________________)

CIVIL ACTION NO. 3:03CV00644(CFD)

CIVIL ACTION NO. 3:03CV01154(CFD)

JANUARY 23, 2007

DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' RULE 56(a)(2) STATEMENTS OR, ALTERNATIVELY, FOR LEAVE TO FILE A RESPONSE TO PLAINTIFFS' STATEMENTS OF PURPORTEDLY UNDISPUTED MATERIAL FACTS CONTAINED THEREIN, AND INCORPORATED MEMORANDUM OF LAW Defendants, National Union Fire Insurance Company of Pittsburgh, PA. and AIG Technical Services, Inc., now known as AIG Domestic Claims, Inc. (collectively, "Defendants"), through the undersigned counsel, hereby move this Court to strike the Local Rule 56(a)(2) Statement of Plaintiffs David Gwynn and Raquel Gwynn in Support of Their Memoradum of Law in Opposition to Defendants' Motion for Summary Judgment ("Gwynn Plaintiffs' Local Rule 56(a)(2) Statement") and The Ryan Plaintiffs' Local Rule 56(a)(2) Statement ("Ryan Plaintiffs' Local Rule 56(a)(2) Statement), or, alternatively, for leave to file a response to their statements

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of purportedly undisputed material facts contained therein, and in support thereof state as follows: I. Material Facts 1. On November 20, 2006, the Gwynn Plaintiffs filed their Local Rule 56(a)(2) Statement and the Ryan Plaintiffs filed their Local Rule 56(a)(2) Statement (collectively, "Plaintiffs' Local Rule 56(a)(2) Statements") in support of their memoranda in opposition to Defendants' Motion for Summary Judgment. 2. The Gwynn Plaintiffs' Local Rule 56(a)(2) Statement contains three sections, titled: A. The Gwynn Plaintiffs' Response to Defendants' 56(a)(1) Statement of Undisputed Material Facts B. The Gwynn Plaintiffs' Statement of Undisputed Material Facts C. Disputed Issues of Material Fact 3. The Ryan Plaintiffs' Local Rule 56(a)(2) Statement contains two sections, titled: A. Response to AIG's Statement of Undisputed Material Facts B. The Ryan Plaintiffs Counter Statement of Material Facts Not in Dispute 4. Local Rule 56(a) requires the opponent of a motion for summary judgment to file a Local Rule 56(a)2 Statement that admits or denies each of the facts asserted by the moving party in the movant's Local Rule 56(a)1 Statement. Each denial must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial. See D. Conn. L. Civ. R. 56(a)3. 5. The opponent's Local Rule 56(a)2 Statement must also include -- in a separate section entitled "Disputed Issues of Material Fact" -- a list of each issue of material fact as to which it is contended there is a genuine issue to be tried. See D. Conn. L. Civ. R. 56(a)3. Like each denial, each disputed material fact must be followed by a specific citation to (1) the

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affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial. See D. Conn. L. Civ. R. 56(a)3. 6. Significantly, Local Rule 56(a) does not require or authorize the opponent of a summary judgment motion to file the opponent's own statement of undisputed material facts.1
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Local Rule 56(a) states: 1. There shall be annexed to a motion for summary judgment a document entitled "Local Rule 56(a)1 Statement," which sets forth in separately numbered paragraphs meeting the requirements of Local Rule 56(a)3 a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried. All material facts set forth in said statement and supported by the evidence will be deemed admitted unless controverted by the statement required to be filed and served by the opposing party in accordance with Local Rule 56(a)2. 2. The papers opposing a motion for summary judgment shall include a document entitled "Local Rule 56(a)2 Statement," which states in separately numbered paragraphs meeting the requirements of Local Rule 56(a)3 and corresponding to the paragraphs contained in the moving party's Local Rule 56(a)1 Statement whether each of the facts asserted by the moving party is admitted or denied. The Local Rule 56(a)2 Statement must also include in a separate section entitled "Disputed Issues of Material Fact" a list of each issue of material fact as to which it is contended there is a genuine issue to be tried. 3. Each statement of material fact by a movant in a Local Rule 56(a)1 Statement or by an opponent in a Local Rule 56(a)2 Statement, and each denial in an opponent's Local Rule 56(a)2 Statement, must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial. The affidavits, deposition testimony, responses to discovery requests, or other documents containing such evidence shall be filed and served with the Local Rule 56(a)1 and 2 Statements in conformity with Fed. R. Civ. P. 56(e). The "specific citation" obligation of this Local Rule requires counsel and pro se parties to cite to specific paragraphs when citing affidavits or responses to discovery requests and to cite to specific pages when citing to deposition or other transcripts or to documents longer than a single page in length. Counsel and pro se parties are hereby notified that failure to provide specific citations to evidence in the record as required by this Local Rule may result in the Court deeming certain facts that are supported by the evidence admitted in accordance with Rule 56(a)1or in the Court imposing sanctions, including, when the movant fails to comply, an order denying the motion for summary judgment, and, when the opponent fails to comply, an order granting the motion if the undisputed facts show that the movant is entitled to judgment as a matter of law. D. Conn. L. Civ. R. 56(a) (emphasis supplied).

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7. Local Rule 56(a) also does not provide for the movant to respond to the opponent's Local Rule 56(a)2 Statement. In the event that the Court does not strike Plaintiffs' Local Rule 56(a)2 Statements or their statements of purportedly undisputed material facts contained therein, Defendants hereby move for permission to respond to such statements. II. Argument Plaintiffs' Local Rule 56(a)2 Statements violate Local Rule 56 in several respects. The Ryan Plaintiffs' Local Rule 56(a)2 Statement does not contain the required "Disputed Issues of Material Fact" section. Instead, both the Ryan Plaintiffs and the Gwynn Plaintiffs include in their respective Local 56(a)2 Statements a section containing their version of the purportedly undisputed material facts. As noted above, Local Rule 56(a) neither requires nor authorizes the opponents of a summary judgment motion to include a section of undisputed material facts in their Local 56(a)2 Statements. In order to properly submit their own statement of undisputed material facts, Plaintiffs would have had to move for summary judgment themselves, which they did not do. Thus, Local Rule 56(a) authorized Plaintiffs only to specifically respond to each of Defendants' itemized undisputed material facts and to set forth their own statements of disputed material facts. Furthermore, Local Rule 56(a) required Plaintiffs to follow each of their denials of Defendants' statement of undisputed material facts and each of Plaintiffs' statements of disputed material facts with a specific citation to the affidavit of a competent witness or evidence that would be admissible at trial. Plaintiffs did neither. Instead, Plaintiffs provided citations to its own unauthorized statements of purportedly undisputed material facts. Plaintiffs' Local Rule 56(A) Statements should thus be stricken.

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Where, as here, the opponent of a motion for summary judgment fails to provide specific citations to evidence in the record as required by Local Rule 56(a), the Court may deem certain facts admitted or impose sanctions, including an order granting the motion where, as here, the undisputed facts show that the movant is entitled to judgment as a matter of law. See Local Rule 56(a)3. WHEREFORE, Defendants respectfully request that the Court enter an order striking Plaintiffs' Rule 56(a)2 Statements, awarding summary judgment in favor of AIG on each of Plaintiffs' claims, or, alternatively, authorizing Defendants to respond to Plaintiffs' statements of undisputed facts, and for such and further relief as the Court deems equitable under the circumstances.

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Respectfully submitted, DEFENDANTS/COUNTERPLAINTIFFS NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. and AIG TECHNICAL SERVICES, INC. BY THEIR ATTORNEYS, Edwards Angell Palmer & Dodge LLP By: /s/ David S. Samuels Mark B. Seiger Fed. Bar No. ct05580 David S. Samuels Fed. Bar No. ct 24460 90 State House Square Hartford, CT 06103-2715 Tel: (860) 525-5065 Fax: (860) 527-4198 Email: [email protected], [email protected] John D. Hughes Massachusetts BBO # 243660 111 Huntington Ave. Boston, MA 02199 Tel: (617) 951-3373 Fax: (617) 439-4170 Email: [email protected] Donna M. Greenspan Florida Bar No.: 059110 One North Clematis Street Suite 400 West Palm Beach, FL 33401 Tel: (561) 833-7700 Fax: (561) 655-8719 Email: [email protected]

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CERTIFICATION I hereby certify that on January 23, 2007, the foregoing Defendants' Motion to Strike Plaintiffs' Rule 56(a)(2) Statements and Incorporated Memorandum of Law, or Alternatively, Leave to File a Response was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of the court's electronic filing system or by mailto anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this document through the court's CM/ECF System. /s/ David S. Samuels David S. Samuels

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