Free Motion to Strike - District Court of Arizona - Arizona

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STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Telephone: (602) 257-5200 Facsimile: (602) 257-5299 Mark G. Kisicki (016593) Sandra K. Sanders (017472) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 William J. Delany (admitted pro hac vice) Attorneys for Defendant AmeriGas Propane, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Gregory Cox, Plaintiff, vs. AmeriGas Propane, Inc., a Pennsylvania corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 04-00101-PHX-SMM DEFENDANT' PARTIAL S MOTION TO STRIKE PLAINTIFF' SEPARATE S STATEMENT OF FACTS IN SUPPORT OF PLAINTIFF' S RESPONSE TO DEFENDANT' S MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

I.

INTRODUCTION

Along with his Response to Defendant' Motion for Summary Judgment, s Plaintiff filed a Separate Statement of Facts in support of his Response (" SOF" ). Plaintiff' SOF is, in large part, unsupported by record evidence. Specifically, it is s riddled with self-serving, conclusory statements that have no reference to the record. Indeed, many of Plaintiff' allegations are supported by nothing more than citations to s his Complaint. Moreover, in several instances, the record citations bear no relationship
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to the allegations of Plaintiff' SOF. s

While none of Plaintiff' unsubstantiated s

statements concern material facts, Defendant nevertheless respectfully requests that the Court refrain from relying on such paragraphs in its consideration of Defendant' s Motion for Summary Judgment. II.
ARGUMENT

Defendant moves to strike the following paragraphs:

SOF No. 4: On or about February 1, 2002, Plaintiff received training at Defendant' training facilities in Yuba City, California and Gardena, California s (the " Training Facilities" where he discovered that propane gas cylinders being ), returned to the Training Facilities and to the PPX Facilities in Arizona and California did not have a protective device known as POL plug (the " Plugs" ) (Plaintiff' First Amended Complaint [" s Complaint" ¶ 12; Cox Depo at 109:15-18 ] and 253:5-14). The allegations of SOF No. 4 are unsupported by record evidence and rely, in part, on inadmissible hearsay. Plaintiff'testimony at page 109 establishes only that he s visited Yuba City for training. His testimony on page 253 that a truck driver expressed concern about being pulled over and the lack of POL plugs is inadmissible hearsay under Federal Rule of Evidence 802 and cannot be considered on summary judgment. See e.g., Green v. Maricopa County Cmty. Coll. Sch. Dist., 265 F. Supp. 2d 1110, 1121 n.1 (D. Ariz. 2003) (on motion for summary judgment, holding the plaintiff'statements s about what others told her was inadmissible hearsay). Even if admissible, this

testimony does not establish that Plaintiff discovered that propane gas cylinders lacked a protective device known as a POL plug. Plaintiff also incorrectly relies upon the bare allegations of his Complaint; however, the Complaint' bare allegations do not s constitute admissible evidence. A party opposing summary judgment " may not rest upon the mere allegations or denials of [the party' pleadings, but . . . must set forth s] specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see
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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Accordingly, the Court should strike the unsupported allegations of SOF No. 4.

SOF No. 5: The Plugs prevented the escape of propane gas from storage cylinders into the atmosphere during the shipment and storage processes and provided for the safe transport of propane gas cylinders (Complaint ¶ 12). The allegations of SOF No. 5 are unsupported by record evidence because Plaintiff relies exclusively on his Complaint. Fed. R. Civ. P. 56(e); see Matsushita, 475 U.S. at 586-87. Accordingly, the Court should strike these allegations.

SOF No. 6: While at the Training Facilities, Plaintiff also observed a process for removing excess propane gas from propane gas cylinders (the " Removal Process" ), which consisted of forcing propane gas into a 55-gallon drum filled with water, allowing the escape of large amounts of propane into the atmosphere (Complaint ¶ 13; Cox Depo at 119:10-19). The allegations of SOF No. 6 are unsupported by record evidence. Plaintiff' s record citations do not support the allegations of SOF No. 6. Plaintiff' testimony at s page 119 was the following: They had an apparatus there that actually they used that consisted of a tank, a pump, a hose coming out of the tank into a 55-gallon drum filled up with water that pretty close came to free flow, where it would bubble the propane vapor through the water drum, and then the bubbles come to the surface, pop, and, as we know from propane'qualities, you s couldn' see it, but, of course, it would run off and pool t down and run. (Pl. Dep. 119:10-19). This testimony does not establish that large amounts of propane were released into the atmosphere. Moreover, Plaintiff relies upon the bare allegations of the Complaint to support this contention. Fed. R. Civ. P. 56(e); see Matsushita, 475 U.S. at 586-87. Accordingly, the Court should strike the unsupported allegations of SOF No. 6.
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SOF No. 7: On or about March 1, 2002, Plaintiff reported to his immediate supervisor, Bo Cornall, that the Plugs were not being used properly at any of the Arizona or California PPX facilities and that the Training Facilities were using the Removal Process, which Plaintiff knew were violations of state and federal law as a result of the training he had received at the Training Facilities (Complaint ¶ 14; Cox Depo at 247:8-12). The allegations of SOF No. 7 are unsupported by record evidence. Plaintiff' s testimony at page 247 was the following: Q. Okay. And in fairness, I believe you' contending that re you were terminated in retaliation for having recorded violations of Arizona and federal law? A. Yes. (Pl. Dep. 247:8-12). This testimony does not establish the factual statements set forth in SOF No. 7. Moreover, Plaintiff relies upon the bare allegations of his Complaint. Fed. R. Civ. P. 56(e); see Matsushita, 475 U.S. at 586-87. Accordingly, the Court should strike SOF No. 7.

SOF No. 8: Plaintiff was told by his supervisor that Amerigas had never had a problem with state or federal agencies concerning the non-use of Plugs and the Removal Process, and told Plaintiff not to pursue the matter (Complaint ¶ 15). The allegations of SOF No. 8 are unsupported by record evidence, because Plaintiff relies exclusively on the bare allegations of his Complaint. Fed. R. Civ. P. 56(e); see Matsushita, 475 U.S. at 586-87. Accordingly, the Court should strike SOF No. 8.

SOF No. 9: On or about July 15, 2002, Plaintiff informed his supervisor that he did not feel comfortable using a process known as " blowing bottles" which process , consisted of venting propane gas out of cylinders into the atmosphere. Plaintiff

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was instructed to continue blowing bottles as was customary practice at the PPX Facilities (Complaint ¶ 16; Cox Depo at 107:14 - 112:6). The allegations of SOF No. 9 are unsupported by record evidence. First,

Plaintiff'record citations do not establish the facts set forth in SOF No. 9. Rather, the s testimony establishes only that when Plaintiff visited Yuba City for one week for training during the first month or so of his employment, he observed three persons " blowing bottles." Plaintiff also cites no evidence to support his allegation that he informed his supervisor that he did not feel comfortable using the process of blowing bottles or that " Plaintiff was instructed to continue blowing bottles as was customary practice at the PPX Facilities." Finally, Plaintiff relies on the bare allegations of the Complaint, which is not admissible evidence. Fed. R. Civ. P. 56(e); see Matsushita, 475 U.S. at 586-87. Accordingly, the Court should strike SOF No. 9.

SOF No. 10: On or about August 1, 2002, Plaintiff informed his supervisor that a large amount of polluted and untreated run-off water at the PPX Facility in Glendale, Arizona was accumulating in a ground basin, and that the run-off water was then pumped to the fence line separating the Amerigas property from an adjacent railway spur. Plaintiff asked his supervisor if they could chemically treat the run-off water before pumping it onto the adjacent property; however, Plaintiff was told the cost of doing so was prohibitive (Complaint ¶ 17; Cox Depo at 261:24 264:1). The allegations of SOF No. 10 are unsupported by record evidence. Plaintiff' s record citations do not establish the facts set forth in SOF No. 10. Rather, Plaintiff' s testimony was that untreated run-off water at the PPX Facility in Glendale, Arizona was accumulating in a ground basin, and that the run-off water was then pumped to the fence line separating the Amerigas property from an adjacent railway spur. Plaintiff has no evidence to support the following allegations: (1) that the run-off water was polluted; (2) that he ever informed his supervisor about it; or (3) that he " asked his supervisor if
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they could chemically treat the run-off water before pumping it onto the adjacent property; however, Plaintiff was told the cost of doing so was prohibitive." Plaintiff also relies on the bare allegations of the Complaint, which is not admissible evidence. Fed. R. Civ. P. 56(e); see Matsushita, 475 U.S. at 586-87. Accordingly, the Court should strike SOF No. 10.

SOF No. 13: On or about July 1, 2003, a supervisor, Lisa Gerwitz, approached Plaintiff and accused him of having written the Letter, and stated that " they had a plan to take care of that" (Complaint ¶ 25; Cox Depo at 275:3-13). The allegations of SOF No. 13 are unsupported by record evidence. Plaintiff' s record citations do not establish the facts set forth in SOF No. 13. Plaintiff'testimony s merely stated: Ms. Gerwitz approached me, you know, saying that she had heard that I was the person that wrote this, that now that she' read it that she felt like I was probably the only person d in a position to know about these things that could have written it, and the way that it was written; the fact that, like, references in the end where it said why it' still an s anonymous-type letter, that AmeriGas has a history in Glendale of retaliating against people that raise concerns. (Pl. Dep. 275:3-13). The record citation does not establish Plaintiff' allegation that s Ms. Gerwitz " accused" Plaintiff anything, or that she " the stated that ` had a plan to they take care of that.' Plaintiff also relies on the bare allegations of the Complaint, which " is not admissible evidence. Fed. R. Civ. P. 56(e); see Matsushita, 475 U.S. at 586-87. Accordingly, the Court should strike the unsupported allegations of SOF No. 13.

SOF No. 15: Two employees had informed Plaintiff' supervisor, Bo Cornall, that s they had been responsible, and not Plaintiff, for the shipping of the leaking cylinders (Cox Depo at 229:25 - 230:15). The allegations of SOF No. 15 set forth inadmissible hearsay under Federal Rule of Evidence 802, and the Court should not consider them on summary judgment. See
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e.g., Green, 265 F. Supp. 2d at 1121 n.1 (on motion for summary judgment, holding the plaintiff'statements about what others told her was inadmissible hearsay). s

SOF No. 17: In an effort to corroborate the complaints that Plaintiff had brought to Defendant' attention during his employment, Plaintiff contacted state and s federal agencies and governments, including Arizona Department of Public Safety, Arizona Industrial Commission, Arizona Department of Transportation, Maricopa County Department of Environmental Services, and Environmental Protection Agency (Cox Depo at 302:1 - 304:4). The allegations of SOF No. 17 are unsupported by record evidence. Plaintiff' s deposition testimony establishes only that he complained to certain agencies after the termination of his employment, but there is no evidence that Plaintiff brought these same complaints to Defendant' attention during his employment. Moreover, these s allegations are irrelevant, since it is undisputed that they occurred after Plaintiff' s employment terminated. Fed. R. of Evid. 401, 402. Accordingly, the Court should strike SOF No. 17.

SOF No. 18: As a result of Plaintiff' inquiries to various state and federal s agencies, he learned that Defendant had, in fact, numerous violations of state and federal laws in Arizona and California (Cox Depo at 307:1-6; see Arizona Department of Public Safety Report, attached hereto as Exhibit D; Industrial Commission of Arizona Citation and Notification of Penalty, attached hereto as Exhibits E and F). The allegations of SOF No. 18 are unsupported by record evidence. Plaintiff' s record citations merely set forth Plaintiff'speculation that Defendant had been cited for s violations. The Reports Plaintiff cites, and attaches, involve investigations and

violations that occurred after Plaintiff'termination of employment. Therefore, they are s irrelevant. Fed. R. of Evid. 401, 402. Moreover, they are inadmissible because they are
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unauthenticated and constitute inadmissible hearsay. See, e.g., Travelers Cas. & Sur. Co. of America v. Telstar Const. Co., Inc., 252 F. Supp. 2d 917, 926 (D. Ariz. 2003); Fed. R. of Evid. 901(b)(7). Accordingly, the Court should strike SOF No. 18, and the documents Plaintiff attaches in support thereof.

SOF No. 24: Defendant knowingly makes hundreds of shipments of leaking cylinders every day, from facilities in Arizona and throughout the United States, which shipments are in violation of state and federal laws (Cox Depo at 90:9 100:24). The allegations of SOF No. 24 are unsupported by record evidence. Plaintiff' s record citations do not establish the allegations set forth in SOF No. 24. Rather, his testimony was as follows: The initial phase of my employment you would sometimes get a lot of leakers. For instance, if the vendor refurbishing them didn' put the valve quite deep enough into the t cylinder, or on the other side of the coin, if they put the valve too deep into the cylinder, it would egg the threads, which would create an oval shape, which would allow leaks. (Pl. Dep. 9-16). Accordingly, Plaintiff has no evidence that Defendant knowingly made any shipments of leaking cylinders, let alone hundreds of them every day, or that any shipments were in violation of state and federal laws. Accordingly, the Court should strike SOF No. 24.

SOF No. 25: Leaking cylinders occur as a result of numerous factors, including aging cylinders, pin-point leaks in the cylinders, faulty valves, and improper handling and/or shipment (Cox Depo at 100:11-18). The allegations of SOF No. 25 are unsupported by record evidence. Plaintiff testified to the following: One was a PPX originated cylinder meaning that we had filled it within a reasonable time period, and that was a pinhole weld leak, which could have been leaking at the
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time that it was shipped, or it could have been one that I mentioned, I think it' a maturing leak, where it actually s goes through the cover. (Pl. Dep. 100:11-17). The testimony cited makes no reference to leaking cylinders occurring as a result of aging cylinders, faulty valves, or improper handling and/or shipment. Accordingly, the Court should strike SOF No. 25.

SOF No. 27: Plaintiff had complained to Defendant about the existence of leaking cylinders and had proposed plans and procedures for addressing the problem and for training employees on proper handling (Cox Depo at 98:10 - 99:25). The allegations of SOF No. 27 are unsupported by record evidence. Plaintiff' s record citations do not establish that Plaintiff " complained"to Defendant about the existence of leaking cylinders and proposed plans. In fact, his testimony makes

abundantly clear that Plaintiff submitted a written plan to address Glendale' leaking s cylinder problem only after Mr. Artero had come to visit and after " Cornall had Mr. approached [Plaintiff] saying that he had concerns in reference to leaking cylinders." (Pl. Dep. 98:10-13, 99:15-19). Accordingly, the Court should strike the unsupported allegations of SOF No. 27.

SOF No. 32: Defendant acknowledged that leaking cylinders were, in fact, shipped from other facilities by employees of Defendant other than Plaintiff (Cox Depo at 99:13-25). The allegations of SOF No. 32 are unsupported by record evidence. Plaintiff' s record citations do not establish the allegations set forth in SOF No. 32. Accordingly, the Court should strike SOF No. 32.

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III.

CONCLUSION

While the many unsupported assertions of Plaintiff' SOF do not create a s material fact that would prevent summary judgment, the Court should nonetheless strike them because they are not properly before the Court on a Rule 56 motion. Accordingly, for the reasons stated above, Defendant AmeriGas Propane, Inc. respectfully requests that this Court strike the above-referenced paragraphs from Plaintiff' Separate s Statement of Facts in support of its Response to Defendant' Motion for Summary s Judgment. RESPECTFULLY SUBMITTED this 16th day of August, 2005. STEPTOE & JOHNSON LLP

By s/ Sandra K. Sanders Mark G. Kisicki Sandra K. Sanders Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 MORGAN, LEWIS & BOCKIUS LLP William J. Delany (admitted pro hac vice) 1701 Market Street Philadelphia, Pennsylvania 19103 Attorneys for Defendant AmeriGas Propane, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on the 16th day of August, 2005, I caused the attached document to be electronically transmitted to the Clerk' Office using the s CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrant: Robert Gregory Law Office of Robert M. Gregory, P.C. 1930 S. Alma School Road, Ste. A-115 Mesa, Arizona 85210 Attorney for Plaintiff

s/ Sandra K. Sanders

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