Opinion
Civ 03-321 KBM/LCS.
June 29, 2004
ORDER FOLLOWING ORAL ARGUMENT
Pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73(b), the parties have consented to have me serve as the presiding judge and enter final judgment. See Docs. 14, 22. On June 28, 2004, this matter came before the Court for oral argument on Defendants' Motion For Judgment On The Pleadings Or, In The Alternative, For Summary Judgment. Doc. 40. Plaintiffs concede that the municipal liability and negligent hiring/supervision claims (Claims 4 and 9) are "not sufficiently supported and should be dismissed." Doc. 49, ¶ 3.
For the reasons stated on the record during the hearing, which I incorporate herein by reference, I grant summary judgment in favor of Defendants on Plaintiffs' remaining federal claims and decline supplemental jurisdiction on the remaining state law claims.
In addition to that reasoning, I also note that as the nonmoving party to the motion for summary judgment, Plaintiffs bear the burden of "go[ing] beyond the pleadings and by [their] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal citations omitted). This is so, "even though the evidence probably is in possession of the movant." Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir. 1992) (citing Anderson, 477 U.S. at 257). Indeed, Rule 56 is unequivocal:
When a motion for summary judgment is made and supported as provided in this rule, [Plaintiffs] may not rest upon mere allegations or denials of [their] pleadings, but [their] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If [they do] not so respond, summary judgment, if appropriate, shall be entered the adverse party.
Here, Defendants have properly supported a number of stated material facts by affidavit or otherwise. Plaintiffs repeatedly assert that they have "insufficient information to admit or deny" Defendants' assertions, and therefore deny those stated facts. See Doc. 50 at 4-9. However, such averments themselves are insufficient and, as such, Plaintiffs utterly failed to sustain their burden with regard to the vast majority of Defendants' factual assertions. See generally 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KANE, FEDERAL PRACTICE AND PROCEDURE § 2739 n. 14 (3rd ed. 1998) ("When plaintiff merely denied having sufficient knowledge or information to form a belief whether or when he received the notice of the proposed judgment in a class action, summary judgment was appropriate under the rules," citing Hendler v. Wohlstetter, 411 F. Supp. 919 (S.D.N.Y. 1975)). Furthermore, Plaintiffs have not submitted a Rule 56(f) affidavit or otherwise indicated that additional discovery was necessary to respond to Defendants' statement of facts. See, e.g., Carr v. Castle, 337 F.3d 1221, 1233 (10th Cir. 2003) (since Rule 56(e) requires an affidavit, "it is really not relevant whether the added discovery sought by the [pending] motion to compel was or was not itself relevant to the resolution of the City's Rule 56 motion"); Committee, 962 F.2d at 1522 ("we agree with the Third Circuit that counsel's unverified assertion in a memorandum opposing summary judgment does not comply with Rule 56(f) and results in a waiver."); FED. R. CIV. P. 56(f).
Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1. Defendants' motion (Doc. 40) is granted in part and summary judgment is granted in favor of Defendants on the remaining federal claims;
2. The Court declines to exercise supplemental jurisdiction over the remaining state law claims; and
3. A final order will enter concurrently herewith.