Opinion
No. 02 Civ. 2996 (LAK).
September 23, 2004
ORDER
Defendant moves for summary judgment dismissing the complaint, which alleges gender discrimination and breach of contract, among other grievances, related to defendant's termination of plaintiff's employment. Plaintiff purportedly cross-moved for summary judgment, albeit after the deadline set for the filing of dispositive motions.
In a report and recommendation dated December 23, 2003, Magistrate Judge Douglas F. Eaton recommended that defendant's motion be granted and that the cross-motion be denied both as untimely and on the merits. Plaintiff objects to the former recommendation.
In addition to the points made in the report and recommendation, the Court notes the following:
1. As noted, the report and recommendation was dated December 23, 2003 and stated that objections had to be served and filed on or before January 15, 2004. The due date under the rules in fact was January 12, 2004. The objections are dated January 15, 2004 and were not filed with the Clerk until February 9, 2004. (Docket item 63) Thus, they were untimely. This would be true even if January 15 were taken as the due date in light of the statement in the report and recommendation. Rule 72(b) and 28 U.S.C. § 636(b) require both service and filing within the requisite period, but the objections were filed out of time regardless of whether they were timely served. Their untimeliness independently warrants their rejection.
This was more generous than the rules required. The report and recommendation was mailed to plaintiff's counsel on December 23, 2003. (RR at 20) Objections had to be served and filed no later than 10 days after that date, excluding Christmas Day, New Year's Day, and intervening Saturdays and Sundays. Fed.R.Civ.P. 72(b), 6(a); 28 U.S.C. § 636(b). The tenth day was January 7, 2004. Even taking into account three additional days in view of the fact that the report and recommendation was served by mail, see Fed.R.Civ.P. 6(e), the final day for service and filing of the objections was January 12, 2004.
2. Defendant submitted a detailed, 244-paragraph Rule 56.1 statement in support of its motion which cited, as required by the rule, evidence in support of each assertion of fact. Plaintiff's purported response was a 64-page document which amount to something like a trial brief in support of plaintiff's case, but which did not respond to the assertions set forth in defendant's statement, at least not in any systematic, organized or comprehensible way. Many of its assertions did not cite to evidence This failed to comply with Local Civ. R. 56.1. E.g., Archie Comic Publications, Inc. v. DeCarlo, 258 F. Supp.2d 315, 317-19 (S.D.N.Y. 2003), aff'd substantially for reasons stated below, 88 Fed. Appx. 468 (2d Cir.), pet. for cert. filed (May 21, 2004). Accordingly, the Court accepts as true each of the facts set forth in defendant's Rule 56.1 Statement.
Following the issuance of the Report and Recommendation, plaintiff submitted a new Rule 56.1 statement in which she sought to cure the deficiencies. The Court declines to consider this belated filing, substantially for the reasons set forth in paragraph 3 with respect to her other belated submissions.
3. Following the issuance of the report and recommendation, plaintiff's counsel began bombarding the Court with voluminous affidavits and evidentiary material. To the extent this material was available to the plaintiff prior to the issuance of the report and recommendation, the Court declines to consider it. See, e.g., Morris v. Amalgamated Lithograpers of Am., 994 F. Supp. 161, 163 (S.D.N.Y. 1998). To the very limited extent that it contains material that came into plaintiff's hands following the issuance of the report and recommendation, the Court has considered the material and concluded that nothing in it warrants a different result.
Accordingly, plaintiff's objections are overruled. Defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross-motion for summary judgment denied, in each case substantially for the reasons set forth in the report and recommendation and on the additional grounds noted above.
SO ORDERED.