Opinion
1:03-CV-0493 (GLS\RFT).
December 29, 2004
RONALD LUBER, Plaintiff, Pro se, Dearborn, MI, for Plaintiff.
THOMAS J. MORTATI, ESQ., PHELAN, PHELAN LAW FIRM, Albany, NY, for Defendants.
DECISION AND ORDER
I. Introduction
Plaintiff Ronald Luber (Luber) moves for entry of summary judgment against the defendants for alleged violations of his civil rights under 42 U.S.C. § 1983. The remaining defendants Traci Ross, Kathy McLaughlin and the County of Warren (defendants), oppose the motion for summary judgment as premature. Additionally, Luber has filed a motion to strike the affidavits of Traci Ross and Kathy McLaughlin attached to their opposition papers.
II. Background
On April 21, 2003, Luber filed a § 1983 complaint alleging, inter alia, that the defendants infringed upon his constitutional rights under the Due Process and Equal Protection clause of the Fourteenth Amendment. See Compl., Dkt. No. 1. On June 2, District Judge David N. Hurd issued a compliance order dismissing most of the defendants and ordered Luber to file an amended complaint. See Dkt. No. 4. On July 2, Luber filed an amended complaint which was served upon the remaining defendants, Traci Ross, Kathy McLaughlin and the County of Warren. See Dkt. No. 6. On August 18, 2003, the defendants filed an answer. See Dkt. No. 7. On August 19, this case was reassigned to District Judge Lawrence E. Kahn. See Dkt. No. 9. On December 9, a pretrial scheduling order was entered. See Dkt. No. 18.
The defendants, Sharon Luber Sprague, Margaret Graves, Frank Isele, Mountainside Christian Academy, William Bowman, Betsy Oris, Robert M. Kelly, Hon. J. Timothy Breen, New York State Office of Children and Family Services, New York State Commission on Judicial Conduct and the County of Warren were dismissed from the original complaint. See Dkt. No. 4.
Luber filed his amended complaint naming some of the same defendants that were previously dismissed and District Judge Hurd dismissed them again. See Dkt. No. 6. However, the County of Warren was reinstated as a defendant in the amended complaint despite being previously dismissed. See id.
District Judge Hurd recused himself from the within matter due to his son's employment with defense counsel's firm. See Dkt. No. 9.
Pursuant to this order, the discovery period was set to expire on May 31, 2004. See id.
On February 5, 2004, Magistrate Judge Randolph F. Treece issued an order directing the defendants to file certain child protective services documents under seal for his in camera review. See Dkt. Nos. 20-28. While the in camera review was pending, this case was reassigned from District Judge Kahn to this court. See Dkt. No. 29. On May 4, Magistrate Judge Treece cancelled the discovery deadline in this matter. See Dkt. No. 34. On September 8, Magistrate Judge Treece issued an order releasing redacted portions of the sealed documents and extended the discovery deadline to November 15, 2004. See Dkt. No. 35.
On October 18, 2004, Luber filed a motion for summary judgment. See Dkt. No. 38. Contemporaneously, Luber also requested and was granted an extension of discovery for five days in order to complete depositions. See Dkt. No. 39. However, no depositions were taken. On November 1, the defendants filed an opposition brief along with the supporting affidavits of Traci Ross and Kathy McLaughlin. See Dkt. No. 40. In response, Luber filed what purportedly seems to be a motion to strike those affidavits. See Dkt. No. 48.
Pursuant to Luber's request, the discovery deadline was extended to November 20, 2004. See id.
A review of the docket indicates that discovery has not been completed. During the pendency of these motions, the defendants made a request to Magistrate Judge Treece to extend the discovery deadline See Dkt. No. 44. The request to extend the discovery and motion filing deadline was granted and depositions are still ongoing. See Order Entry dated 11/12/04; Dkt. No. 49.
III. Discussion
1. Luber's Motion for Summary Judgment"Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Lawrence v. Baxter, 2004 WL 1701102, at *1 (W.D.N.Y. Feb. 10, 2004) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
However, summary judgment should only be granted "[i]f after discovery, the nonmoving party `has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.'" Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) (citations omitted) (emphasis in original). In other words, summary judgment may be granted before the completion of discovery "only in the rarest of cases." Hellstrom, 201 F.3d at 97. Generally, "[t]he nonmoving party must have `had the opportunity to discover information that is essential to his opposition to the motion for summary judgment.'" Id. (quoting Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989)).
For the following reasons, this court finds that Luber's motion for summary judgment was prematurely filed. A review of the pleadings indicates that this case involves numerous contested issues of law and fact at this preliminary stage. See Dkt. Nos. 5, 7. The parties have had little (if any) opportunity to conduct discovery. See Dkt. No. 49. Therefore, it is inappropriate to award Luber summary judgment at this time. See Trebor, 865 F.2d at 511 (denying summary judgment motion as premature because nonmoving party did not have "fully adequate opportunity for discovery" at the time the moving party sought summary judgment); see also, Crystalline H2O, Inc. v. Orminski, 105 F. Supp. 2d 3, 7-8 (N.D.N.Y. 2000).
Additionally, Luber fails to comply with L.R. 7.1 in every respect by failing to provide a separate statement of facts and a memorandum of law. See Dkt. No. 38. Instead, Luber has combined argument and facts in his motion for summary judgment and, in certain instances, simply refers to exhibits in their entirety without any indication as to the asserted facts. See id. at ¶ 27. Luber also quotes large portions from various documents without advising this court of the relevance to the facts in his case.
Local Rule 7.1(a) states, in pertinent part, that: "all motions and opposition to motions require a memorandum of law, supporting affidavit, and proof of service on all the parties." Local Rule 7.1(a)(3) further states, in pertinent part, that: "Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. . . . Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion." See Northern District of New York Local Rules at http://www.nynd.uscourts.gov; (emphasis added).
The courts of the Northern District have adhered to a strict application of Local Rule 7.1(a)(3)'s requirement on summary judgment motions. Giguere v. Racicot, 00-CV-1178, 2002 WL 368534, at *2 (N.D.N.Y. March 1, 2002) ( inter alia citing Bundy Am. Corp. v. K-Z Rental Leasing, Inc., 00-CV-260, 2001 WL 237218, at *1 (N.D.N.Y. March 9, 2001)). "[P]ro se status `does not exempt a party from compliance with relevant rules of procedural and substantive law . . .'" Cogswell v. Rodriguez, 304 F. Supp. 2d 350, 355 (E.D.N.Y. 2004) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Accordingly, Luber's motion for summary judgment is DENIED without prejudice to refile upon the completion of discovery and pursuant to the motion filing deadline as set forth in November 12, 2004 text order. See Order Entry dated 11/12/04. 2. Luber's Motion to Strike
Luber should refrain from filing any motions for summary judgment prior to the completion of discovery and the motion filing deadline. See id. If such a motion for summary judgment is filed prior to the scheduling order, the motion will be rejected and may result in the issuance of sanctions. (emphasis added).
Rule 12(f) of the Federal Rules of Civil Procedure allows a court to "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed R. Civ. P. 12(f). "Motions to strike are not favored and will not be granted unless it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation." Allocco v. Dow Jones Co., Inc., 2002 WL 1484400, *1 (S.D.N.Y.,2002) (internal quotations omitted); see also, William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015 (1986). "In order to prevail on a motion to strike, a plaintiff must satisfy three prerequisites." S.E.C. v. Thrasher, 1995 WL 456402, *5 (S.D.N.Y. 1995) (citing SEC v. Toomey, 866 F. Supp. 719, 722 (S.D.N.Y. 1992)). Plaintiff must show that 1) there is no question of fact which might allow the defense to succeed; 2) that there is no question of law which might allow the defense to succeed; and 3) that the plaintiff would be prejudiced by inclusion of the defense. See Thrasher, 1995 WL 456402 at *5 (citations omitted).
In this case, Luber fails to demonstrate any prejudice associated with the proffered affidavits of Traci Ross and Kathy McLaughlin in opposition to his motion for summary judgment. See Brennan Aff., Exhs. A, B, Dkt. No. 40. The affidavits of the defendants can not be stricken simply because Luber does not agree with their version of the facts. See Pl.'s Br. unnumbered p. 2-3, Dkt. No. 48.
Accordingly, the motion to strike the affidavits of Traci Ross and Kathy McLaughlin is DENIED with prejudice.
IV. Conclusion
After careful review of the record, motion papers and for the reasons stated herein, it is hereby ORDERED that Luber's motion for summary judgment is DENIED without prejudice to refile upon the completion of discovery and on the motion filing deadline of March 18, 2005, and it is further
ORDERED that Luber's motion to strike the affidavits of Traci Ross and Kathy McLaughlin is DENIED with prejudice, and it is further
ORDERED that the Clerk of the Court serve a copy of this Decision Order to Luber's address listed above and via electronic notice to the defendants.