Opinion
CIVIL 1:22-CV-1664
04-23-2024
HOMESITE INS. CO. OF THE MIDWEST, Plaintiff v. OMAR EWIDEH, et al., Defendants
Conner Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Factual Background and Procedural History
This civil action is one of two related cases involving Omar Ewideh and Nivertiti Geaith as pro se litigants and Homesite Insurance Company. There is a remarkable quality to the litigation undertaken by these pro se parties. In a short span of time, Ewideh and Geaith have indulged in a breathtaking array of litigation mayhem and misconduct in these two cases.
This case is a declaratory judgment action brought by Homesite Insurance Company of the Midwest (“Homesite”) against two of its insureds, Omar Ewideh and Nivertiti Geaith. (Doc. 1). In this lawsuit, Homesite seeks a determination of whether it has fully discharged its legal responsibilities under its homeowner insurance policy with the defendants. According to Homesite, the insureds' home suffered water leak damage on two separate occasions, and experienced mold damage which was covered on Homesite's policy. Homesite alleges that it paid the defendants more than $294,000 as reimbursement on these claims pursuant to the terms of this homeowner policy. (Id., ¶¶ 1-56).
Notwithstanding these payments, Homesite alleges that the defendants have filed additional claims against its policy but have violated that policy by refusing to cooperate in the investigation of these additional claims; refusing to permit inspection of the property; failing to protect the property; and failing to properly document their claimed losses. (Id., ¶¶ 57-111). Homesite also asserts that the defendants have made false statements and concealed material facts from the plaintiff in the course of its investigation of these claims in violation of the homeowner policy. (Id., ¶¶ 112-24). Cast against the backdrop of these factual averments of serious misconduct by the defendants, Homesite seeks a declaratory judgment that it has properly and adequately adjusted the defendants' claims under this homeowner insurance policy. (Id., ¶¶ 125-29).
The parties are embroiled in a contentious course of litigation in this case. The cause of much of this contention has been the defendants, who have indulged in an improper and paradoxical course in this litigation, professing to seek a prompt resolution of this lawsuit while constantly delaying proceedings through frivolous filings, failures to abide by court-ordered deadlines, and repeated motions to stay or delay the legal process. Moreover, the way the defendants have chosen to conduct discovery is deeply troubling in one other respect. Ideally the discovery process should entail a mutual and cooperative search for the truth by the parties. However, the defendants have transmogrified discovery into some sort of cynical asymmetrical game, where they ignore court orders and evade their discovery responsibilities while demanding unfairly favorable treatment from the courts and opposing parties.
Such litigation misconduct has consequences, and those consequences are aptly illustrated by two of the motions pending before this court, the defendants' second motion to dismiss, which we have converted to a motion for summary judgment, (Doc. 67), and the plaintiff's motion to dismiss this summary judgment motion pursuant to Rule 56(d) of the Federal Rules of Civil Procedure due to the wholesale failure of Ewideh and Geaith to comply with court orders and provide essential discovery. (Doc. 112).
With respect to these motions the pertinent facts can be simply stated: Homesite filed this declaratory judgment action on October 21, 2022. (Doc. 1). Following a delay resulting from the defendants' failure to accept service of process, the defendants were served by publication. (Docs. 5-7). Ewideh and Geaith then filed a motion to dismiss the complaint, (Docs. 18, 19), which was denied by this court on April 24, 2023. (Doc. 53). Undeterred, the defendants filed a second motion, styled as a motion to dismiss or in the alternative for summary judgment on May 11, 2023. (Doc. 67). This motion argued that the defendants were entitled to a judgment in their favor and was replete with vague and unsupported allusions to various factual matters. (Id.) Recognizing the fact-bound and factually unsupported nature of this motion, on May 12, 2023, we entered an order converting this motion to a summary judgment motion. (Doc. 74). This order also carefully explained to Ewideh and Geaith their discovery responsibilities as litigants in this setting, stating that:
The defendants have filed a motion to dismiss, which alludes to matters and evidence outside the pleadings. (Doc. 67). Because the defendants ask us to consider matters outside the pleadings we are CONVERTING this motion to dismiss into a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This decision by the defendants to file a motion we deem to be a summary judgment motion has consequences for them in terms of their discovery duties. IT IS FURTHER ORDERED that the defendants are on notice that since they allude to matters outside the pleadings in their motion they must allow full and fair discovery of all of these matters. The failure to do so may result in sanctions including exclusion of evidence or entry of adverse judgments.(Id., at 3) (emphasis in original).
Two weeks later on May 30, 2023, we reiterated these discovery and litigation responsibilities for the defendants with respect to this summary judgment motion. Following an in-person conference with all parties, (Doc. 108), we entered an order which stated in clear and precise terms as follows:
The defendants shall produce to plaintiff's counsel all documents, including recordings, responsive to the plaintiff's discovery requests, and all documents they believe are relevant to any claims or defenses in this case, on or before Thursday, June 1, 2023 . The failure to
produce documents will result in the defendants being precluded from using any document not produced to support their claims or defenses.
During the conference, we notified the defendants that their dispositive motion, which was filed as a motion to dismiss under Rule 12 but which we converted to a motion for summary judgment under Rule 56, referenced exhibits but did not have the exhibits attached to the motion or supporting brief. Accordingly, the defendants shall refile their brief with supporting exhibits attached no later than Tuesday, June 7, 2023. The defendants are reminded that they will not be permitted to rely on any documents in support of their motion that are not produced to the plaintiff by the June 1 deadline.
We note that depositions of the defendants have been scheduled to take place on June 28 and June 29, 2023 . All parties are on notice that they must appear for these deposition as scheduled.(Doc. 107, ¶¶ 2, 3, 7).
It is now completely undisputed that the defendants have violated every aspect of this court order. Thus, the defendants have not produced the documentary discovery directed by the court. Further, they have never submitted the supplemental brief that they were ordered to file on June 7, 2023, along with the evidence they were relying upon to support their summary judgment motion. In addition, it is undisputed that Ewideh and Geaith violated this court's order directing the scheduling of depositions on June 28 and June 29, 2023, by failing to appear and testify as ordered.
In light of this wholesale failure by Ewideh and Geaith to fulfill their litigation responsibilities as summary judgment movants, Homesite filed a motion which sought relief under Rule 56(d) of the Federal Rules of Civil Procedure, including the denial of the summary judgment motion without prejudice to its renewal if and when the defendants complied with their duties as litigants. (Doc. 112). We then entered an order which, once again, provided clear notice to Ewideh and Geaith regarding their responsibilities and the consequences which could flow from a failure to meet those responsibilities. That order stated, in part, that:
IT IS ORDERED that the defendants are directed to reply to this motion no later than June 16, 2023 . The plaintiff may then file a reply brief on or before June 30, 2023. All briefs must conform to the requirements prescribed by Local Rule 7.8. No further extensions shall be granted, absent compelling circumstances. The Defendants, who are proceeding pro se, are advised that Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on parties to respond to motions, and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed
within twenty-one (21) days after service of the movant's brief.Local Rule 7.6 (emphasis added).
It is now well-settled that “Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991).” Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). Therefore, a failure to comply with this direction may result in the motion being deemed unopposed and granted.(Doc. 119).
Despite this explicit warning, Ewideh and Geaith have ignored the court's orders and their legal responsibilities and have neglected to address these motions in any fashion. Given this wholesale dereliction by the defendants, these motions are now deemed ripe for resolution.
For the reasons set forth below, it is recommended that the motion to dismiss this summary judgment motion, (Doc. 112) be granted and the defendants' summary judgment motion (Doc. 67) be dismissed.
II. Discussion
A. Under The Rules of This Court the Plaintiff's Motion to Dismiss the Defendants' Summary Judgment Motion Should Be Deemed Unopposed and Granted .
At the outset, under the Local Rules of this Court the defendants should be deemed to concur in the plaintiff's motion to dismiss their summary judgment motion, since they have failed to timely oppose the motion or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits, or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.Local Rule 7.6 (emphasis added).
It is now well settled that “Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with the [R]ule after a specific direction to comply from the court.'” Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, at *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)). In this case, the plaintiff has not complied with the local rules, or this Court's order, by filing a timely response to this motion. Therefore, these procedural defaults by the plaintiff compel the court to consider:
[A] basic truth: we must remain mindful of the fact that Athe Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion ....” McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998).Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by the rules when such rules are repeatedly breached, “would actually violate the dual mandate which guides this Court and motivates our system of justice: ‘that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion.' ” Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the defendants have failed to comply with Local Rule 7.6 by filing a timely response to this motion to dismiss their summary judgment motion. This failure now compels us to apply the sanction called for under Rule 7.6 and deem the motion unopposed.
In any event, we find that the plaintiffs are entitled to relief under Rule 56(d) on the unique and uniquely compelling facts of this case where the defendants have indulged in a wholesale dereliction of their duties as litigants.
B. The Plaintiffs Are Entitled to Relief under Rule 56(d).
We remind Ewideh and Geaith that they have filed a summary judgment motion in this case. Having filed this motion, it was incumbent upon the defendants, as movants, to satisfy the standard prescribed by law for summary judgment, which requires them to show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Because summary judgment motions necessarily entail some consideration of the factual backdrop of the lawsuit, there is a necessary corollary to summary judgment practice in a case such as this, where there is a pending summary judgment motion and the party opposing the motion has expressed a well-founded need for discovery in order to respond to that motion.
In such circumstances, Rule 56(d) of the Federal Rules of Civil Procedure provides a pathway for resolution of discovery questions which are bound up with merits litigation of summary judgment motions, and provides as follows:
When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.Fed. R. Civ. P. 56(d).
By its terms, Rule 56(d) permits a court to deny a summary judgment motion when some further discovery is needed by the party opposing the motion in order to frame a meaningful response to the motion and the movant refuses to cooperate in the discovery process. Moreover, caselaw is clear that the court should indulge every reasonable inference in favor of granting relief under Rule 56(d) to a party who professes a need for discovery prior to responding to a summary judgment motion. Under these circumstances, we are mindful of the fact that: “[I]t is well established that a court is ‘obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery.' ” Shelton v. Bledsoe, 775 F.3d 554, 565 (3d Cir. 2015) (quoting Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007) (internal citations and quotations omitted)). Further, “[i]f discovery is incomplete, a district court is rarely justified in granting summary judgment, unless the discovery request pertains to facts that are not material to the moving party's entitlement to judgment as a matter of law.” Shelton, 775 F.3d at 568. See Medley v. United States, No. 1:15-CV-1261, 2017 WL 9485538, at *4 (M.D. Pa. Feb. 15, 2017), report and recommendation adopted, No. 1:15-CV-1261, 2017 WL 1149205 (M.D. Pa. Mar. 28, 2017).
These principles control here and call for dismissal of the defendants' unsupported summary judgment motion, given the defendants' obdurate refusal to comply with court orders and provide discovery. Indeed, in its current form the defendants' summary judgment motion is subject to dismissal on several grounds. At the outset, we note that the defendants have failed to comply with Local Rule 56.1 which governs summary judgment practice and provides that:
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.....Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.L.R. 56.1.
Given the important role played by Local Rule 56.1 in imposing order and clarity upon summary judgment practice, it is well settled that in a case such as this, where there have been failures to comply with Local Rule 56.1, the court may dismiss a pro se litigant's summary judgment motion. See Landmesser v. Hazleton Area Sch. Dist., 982 F.Supp.2d 408, 413 (M.D. Pa. 2013), affd, 574 Fed.Appx. 188 (3d Cir. 2014). Therefore, this procedural default by the defendants, standing alone, justifies dismissal of their summary judgment motion.
However, the factual record makes it clear that the defendants' failings go far beyond non-compliance with Rule 56.1. Rather, the defendants have also repeatedly disobeyed court orders and refused to provide essential discovery needed to respond to their summary judgment motion. Given these incontrovertible facts, we recognize that:
“[I]t is well established that a court ‘is obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery.' ” Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir.2007) (quoting Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir.1988))[and] Rule 56(d) states that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it .Shelton, 775 F.3d at 565-66.
In the instant case, Homesite has fully explained by affidavit why discovery is necessary to address the defendants' fact-bound but factual unsupported summary judgment motion. Therefore, given the scope and gravity of the defendants' litigation misconduct as it relates to their summary judgment practice, it is submitted that this court should grant the relief expressly provided for by Rule 56(d) and deny this summary judgment motion without prejudice to renewal of the motion when and if the defendants comply with their responsibilities as litigants.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED as follows: Homesite's motion to dismiss the defendants' summary judgment motion, (Doc. 112) should be GRANTED and the defendants' summary judgment motion (Doc. 67) should be DISMISSED without prejudice to renewal of the motion when and if the defendants comply with their responsibilities as litigants.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.