Opinion
00 Civ. 6111 (LAK)
January 28, 2002
AMENDED ORDER
Presently before the Court is defendants' motion for summary judgment dismissing the complaint. In view of deficiencies in plaintiff's papers, the Court cannot now resolve the motion. This order, however, provides for further proceedings.
1. Local Civ.R. 56.1 requires that a party moving for summary judgment submit a short, concise statement of material facts as to which it contends that there is no genuine issue of material fact and upon which it asserts that it is entitled to judgment as a matter of law. Each statement is to be followed by a citation to admissible evidence in the record. Opposing papers also must contain a responsive Rule 56.1 statement. The failure of the non-moving party to controvert an averment contained in the movant's statement results in the movant's averment being deemed admitted. Thus, the non-movant's Rule 56.1 statement must (a) respond specifically to each averment in the movant's statement and (b) set forth an additional factual issues that the non-movant contends are both disputed and material. The process, which is analogous to the filing of an answer responding to a complaint, is designed to focus the Court on the specific factual issues which are material to disposition of the motion and allegedly are controverted on the basis of admissible evidence. In addition, the individual practices of the undersigned set a 35 page limit on memoranda in support of and in opposition to motions.
Defendants' papers complied with these rules. Plaintiff's flouted them. Plaintiff's purported Rule 56.1 statement does not directly respond to the enumerated averments set forth in defendants' statement. There follows a discursive 39-page narrative which, but for the heading, is the substantive equivalent of a statement of facts in a trial brief. And this is no accident, as plaintiff's memorandum of law in opposition to the motion — itself 21 pages long — contains no statement of facts. Rather, it incorporates the purported Rule 56.1 statement by reference. Thus, it is abundantly clear that plaintiff's counsel wished to file a 60-page brief, but rather than asking leave of the Court, simply divided the brief into two parts, one of which she labeled a Rule 56.1 statement.
In these circumstances, the Court would be entirely justified in deeming each of the averments set forth in defendants' Rule 56.1 statement admitted. In the interests of having the matter disposed of on the merits, however, the Court will give plaintiff a chance to correct at least part of this inappropriate behavior. Unless plaintiff, on or before January 28, 2002, submits a Rule 56.1 statement that (a) responds appropriately and specifically to each numbered paragraph in defendants' statement, and (b) if necessary, sets forth additional facts that plaintiff contends are (i) material, and (ii) disputed, supported in each case with citations to admissible evidence in the record, the averments of defendants' Rule 56.1 statement shall be deemed admitted.
2. Defendants maintain that plaintiff's sexual harassment claims under Title VII are time barred on the ground that the concededly last incident of alleged sexual harassment occurred less than 300 days before the date on which plaintiff's EEOC charge was served on the Commission. This assertion is supported by the affidavit of service affixed to the charge and executed by an individual who presumably was employed by plaintiff's attorneys. Plaintiff's answering papers, however, contend that the charge was filed with the EEOC some days earlier, barely within the 300-day limit. They rely on a fax that purports to be a fax transmittal memorandum from the EEOC and an attachment that purports to be a print out from an EEOC database, the precise meaning of which is not entirely clear. Defendants respond that the documents relied upon by the plaintiff are unauthenticated and, in any case, hearsay and that they therefore may not be considered on this motion.
Rule 56(e) requires that papers in support of and in opposition to motions for summary judgment contain evidence that would be admissible at trial. E.g., Nora Beverages, Inc. v. Perrier Group of America, Inc., 269 F.3d 114, 123 (2d Cir. 2001); Raskin v. Wyatt, 125 F.3d 55, 65 (2d Cir. 1997). Plaintiff plainly has laid no foundation for nor otherwise established the admissibility, much less the meaning, of the documents upon which she relies. Nevertheless, given the potential importance of the issue and the fact that the documents purportedly emanate from a government agency, the Court will conduct an evidentiary hearing to determine the admissibility of Exhibit A to the affidavit of Martha McBrayer on January 28, 2002 at 3:30 p.m. in Courtroom 12D.
3. The parties shall submit, on or before January 28, 2002, memoranda, not to exceed 7 pages, addressing the implications of Toyota Motor Manufacturing Kentucky, Inc. v. Williams, No. 00-1089, 2002 WL 15402 (U.S. Jan. 8, 2002), for plaintiff's claim under the Americans With Disabilities Act.
SO ORDERED.