United States District Court, N.D. Alabama, Southern Division
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
Anita Smith (“Plaintiff” and/or
“Smith”) has sued her former employer, the
Vestavia Hills Board of Education (“Defendant, ”
“VHBE, ” and/or the “Board”) for race
discrimination in violation of: Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17
(“Title VII”); 42 U.S.C. §§ 1981 and
1981(a) (“Section 1981”); and 42 U.S.C. §
1983 (“Section 1983). (Doc. 21, Count One). She also
claims she was discriminated against based on her age, in
violation of the Age Discrimination in Employment Act of
1967, 29 U.S.C. §§ 621-634 (the
“ADEA”). (Count Two). Finally, she claims that
Defendant retaliated against her, in violation of Title VII,
Section 1981, and the ADEA, after she opposed the
Defendant's alleged discrimination against her. (Count
case is now before the Court on: Defendant's Motion for
Summary Judgment (doc. 34); Plaintiff's Motion To Strike
Undisclosed Witnesses (doc. 53); Plaintiff's Motion To
Strike Declarations (doc. 54); Plaintiff's Motion To
Strike Court Document 55, Defendant's Response in
Opposition to Plaintiff's Objection and Motion To Strike
(doc. 56); Defendant's Motion To Strike Plaintiff's
Exhibit 2 Attached to Her Response in Opposition to
Defendant's Motion for Summary Judgment (doc. 60);
Defendant's Motion To Strike Plaintiff's Exhibits 5,
9, 10 and 21 (doc. 62); Defendant's Motion To Strike
Plaintiff's Exhibit 16 (doc. 63); Defendant's Motion
To Strike Plaintiff's Citations to Articles (doc. 64);
and Defendant's Motion To Strike Portions of
Plaintiff's Response Brief (doc. 65). The motions are
fully briefed and are under submission. (See docs.
55, 57, 58, 59, 66, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78,
79, 80, 81, and 82). After careful review, and for the
reasons explained below, Defendant's Motion for Summary
Judgment is due to be GRANTED.
Plaintiff's and Defendant's motions to strike are due
to be GRANTED and/or DENIED
as set out herein.
CHALLENGES TO THE RULE 56 FILINGS
the Court reaches the merits of Defendant's Motion for
Summary Judgment, it must determine what evidence and/or
portions of briefs are due to be excluded. In order to make
that determination, the Court must first decide which
pleadings will be considered. Thus, the Court turns first to
Plaintiff's Motion To Strike Court Document 55,
Defendant's Response in Opposition to Plaintiff's
Objection and Motion To Strike. (Doc. 56).
motion (doc. 56) seeks to strike Defendant's response in
opposition to one of Plaintiff's motions to strike. The
basis for the motion is that it was untimely under the
Court's briefing schedule. And it was. Nevertheless, the
Court declines to exclude Defendant's response. Plaintiff
has addressed the merits of Defendant's response by
filing a reply. (Doc. 66). Accordingly, the Court cannot
discern any prejudice suffered by Plaintiff as a result of
Defendant's untimely response brief.
decided what pleadings to allow, the Court now turns to the
parties' multiple filings on alleged briefing violations
and evidentiary issues. Plaintiff and Defendant both challenge
significant portions of the record presented by the opposing
party. Plaintiff seeks to exclude the
declarations of Dr. Mark Richardson, Dr. Tyler Burgess,
Grace Hicks, and Dawn Skewes because these individuals were
not disclosed until after discovery had closed. (Doc.
Plaintiff also seeks to exclude, as “sham declarations,
” the declarations of Tim Loveless and Sheila Phillips,
and to exclude the declaration of Grace Hicks for
Defendant's failure to timely disclose her. (Doc. 54).
Plaintiff also seeks to exclude certain portions of the
declarations of Tim Loveless and of Grace Hicks as hearsay,
unsupported ultimate conclusions, and/or irrelevant. (Doc.
54). Defendant asks the Court to strike various exhibits
submitted by Plaintiff in opposition to the Motion for
Summary Judgment. (Docs. 60, 61, 63, and 64). Defendant
asserts that: Plaintiff's Exhibit 2 is irrelevant (doc.
60); portions of Plaintiff's Exhibits 5, 7, 9, 10 and 21
are improper summaries (doc. 61); four documents within
Plaintiff's Exhibit 16 have not been authenticated (doc.
63); and Plaintiff's citations to unauthenticated law
review articles and websites should be struck (doc. 64).
Defendant also objects to the portions of Plaintiff's
brief in opposition to summary judgment that refer to these
unauthenticated law review articles and websites, and objects
to facts that are improperly contained without citation to
the evidentiary record in Plaintiff's response to
Defendant's statement of undisputed facts. (Doc.
Finally, Defendant asks the Court (doc. 65) to strike those
portions of Plaintiff's brief opposing summary judgment
(doc. 68) that fail to comply with Appendix II to this
Court's Uniform Initial Order (doc. 10).
Plaintiff's Rule 26 Challenges
Rule 26 challenges are set out both in documents 53 and
54.Specifically, she asks this Court to
exclude the declarations of Dr. Mark Richardson, Dr. Tyler
Burgess, Grace Hicks, and Dawn Skewes. She states that, in
violation of Fed.R.Civ.P. 26, none of these individuals were
identified by Defendant prior to the close of discovery.
Accordingly, she says, their declarations must be struck.
Fed.R.Civ.P. 37(b)(2)(A) and (c)(1).
responds that these individuals were timely disclosed and/or
otherwise known to Plaintiff. (Doc. 55). Defendant states:
(1) Grace Hicks and Dawn Skewes were listed in
plaintiff's Third Amended Initial
Disclosures; (2) Defendant's Initial Disclosures
provided the following: “Defendant also identifies any
other individual listed in plaintiff's Rule 26
disclosures, any party's deposition, plaintiff's
witness list and plaintiff's responses to discovery
requests;” and (3) additionally, all of these
individuals' identities and positions with Defendant were
disclosed to Plaintiff numerous times throughout discovery in
this case, both during depositions and in documents produced
in response to Plaintiff's multiple Request for
Production of Documents. Defendant then listed, as to each
individually challenged declarant, multiple examples of such
reply (doc. 66), Plaintiff disagrees with Defendant's
interpretation of Rule 26, says that this Court's Order
(as “always understood” by Plaintiff's
counsel) is broader than Rule 26, and posits several
questions. However, Plaintiff intentionally omits language
that makes clear that her counsel's
“understanding” is not supportable. Specifically,
Plaintiff quotes (only) the following language as the basis
for this “understanding”:
Here, the Court's Scheduling Order provides that
“no person may testify whose identity,
being subject to disclosure or timely requested in discovery,
was not disclosed in time to be deposed or to permit the
substance of his knowledge and opinions to be
(Doc. 66 at 4)(emphasis in original). By omitting the
context, and indeed, by omitting the first portion of the
sentence she does set out, the Court can only conclude
that Plaintiff seeks to mislead. That effort fails, as does
Plaintiff's argument that this Court has imposed through
its Scheduling Order disclosure obligations broader than
those set out in Rule 26.
now to Rule 26, the Court notes that a party generally is
required to disclose the names of individuals likely to have
discoverable information that will be used to support a claim
or defense. Fed.R.Civ.P. 26(a)(1)(A). This initial disclosure
must be supplemented in a timely manner if the initial
disclosure was materially incomplete “and if
the additional or corrective information has not otherwise
been made known to the other parties during the discovery
process.” Id. 26(e)(1)(A)(emphasis supplied).
Rule 37 prohibits a party from using a witness's
testimony to support a motion if it has failed to identify
that witness in accordance with Rule 26, unless the
failure to disclose was substantially justified or
harmless. Fed.R.Civ.P. 37(c)(1)(emphasis supplied).
Court has reviewed Defendant's detailed and extensive
list of its disclosures of these declarants, and finds that
said disclosures not only informed Plaintiff of the names of
the declarants, but did so in such a way that the facts to
which they could likely testify was clear. For that reason,
the Court finds that, as to each such declarant,
Plaintiff's request to exclude the declarations based on
Rule 26 is due to be denied.
Challenges to Declarations
asks the Court (doc. 54) to strike the declarations of Tim
Loveless and of Sheila Phillips on the basis that they are
“sham” declarations. She also seeks to exclude
portions of the Loveless declaration, and portions of the
declaration of Grace Hicks, as hearsay, unsupported ultimate
conclusions, and/or irrelevant.
court may determine that an affidavit is a sham when it
contradicts previous deposition testimony and the party
submitting the affidavit does not give any valid explanation
for the contradiction.” Latimer v. Roaring
Toyz, 601 F.3d 1224, 1237 (11th Cir. 2010). “When
a party has given clear answers to unambiguous questions
which negate the existence of any genuine issue of material
fact, that party cannot thereafter create such an issue with
an affidavit that merely contradicts, without explanation,
previously given clear testimony.” Van T. Junkins
& Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656,
657 (11th Cir. 1984). The Court must apply the sham affidavit
doctrine sparingly, though, “because of the harsh
effect it may have on a party's case.” Allen v.
Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1316
(11th Cir. 2007) (quoting Rollins v. TechSouth, 833
F.2d 1525, 1530 (11th Cir. 1987)). For example, the Court
should not use the sham affidavit doctrine to disregard a
declarant's testimony where the declarant expressed a
lack of certainty or recall during his or her deposition.
See id. at 1316-17 (holding that plaintiffs'
written averments about uncompensated work time should not be
disregarded as shams where the plaintiffs expressed a lack of
certainty during depositions). Further, not every item that
could serve as the basis to impeach a party-witness with
earlier deposition testimony will lead to that
party-witness's testimony being struck. A slight
contradiction or an arguable contradiction is not enough. If
portions of an affidavit are inadmissible, the Court will
disregard the inadmissible testimony and consider the
admissible testimony from that affidavit in analyzing the
summary judgment motion. Lee v. Nat'l Life Assur. Co.
of Canada, 632 F.2d 524, 529 (5th Cir. 1980).
Court has reviewed the deposition testimony that Plaintiff
says is contradicted by Loveless's declaration and finds
that none of the instances cited actually is a “clear
contradiction, ” either because the prior testimony was
of a failure to recall, or because Plaintiff otherwise has
not explained how the deposition testimony's
materially varied from his declaration. The Court
will deny the motion to strike the challenged portions of his
declaration as “sham.”
Court reaches the same conclusions after reviewing the
cited-by-Plaintiff deposition testimony of Phillips
in comparison to the cited-by-Plaintiff declaration
testimony of Phillips. The Court will deny the motion to
strike her declaration.
has also objected to portions of the declarations of Loveless
and to portions of the declaration of Grace Hicks as hearsay,
unsupported ultimate conclusions, and/or irrelevant.
Specifically, as to the Loveless Declaration, Plaintiff
states that it contains
9 hearsay statement of the following individuals: (1) Board
employees (Doc. 35-27, p. 4, ¶ 3); (2) Pat Strange (Doc.
35-27, p. 4, ¶ 3); (3) Mr. Butler (Doc. 35-27, p. 4,
¶ 4); (4) Phillips (Doc. 35-27, p. 5, ¶ 2); (5) the
Board (Doc. 35-27, p. 6, ¶ 1); (6) Ms. Hanson (Doc.
35-27, p.6, ¶ 1); and (7) other VHHS employees(Doc.
35-27, p.7, ¶2).
(Doc. 54 at 12-13).
Court has reviewed all of these pages and has found only
three occasions when Loveless repeats something he was told
(a necessary precondition for a hearsay challenge of this
type). The first occasion is when he says: “I received
multiple complaints from several Board employees, including
Pat Strange, concerning Smith's habitual tardiness or
other employees having to cover Ms. Smith's desk in the
mornings in her absence. Strange complained on several
occasions that she was unable to timely start her duties for
the day because she had to cover Smith's desk by
assisting someone who called or stopped by the front office
before Ms. Smith arrived.” (Doc. 35-27 at 4). These
statements are not being offered for the truth of the matter
asserted (by others who spoke to Loveless). They are not
hearsay and will not be excluded.
second occasion is when he says: “ Ms. Smith
acknowledged that this was an area which needed improvement
during our meeting to go over the evaluation.”
(Id. at 5). This statement is a party admission and,
by rule, is not hearsay. Fed.R.Evid. 801(2)(A). It
will not be excluded.
third occasion is when he says: “On the one occasion
Ms. Smith said ‘They always treat me this way, '
she did not say that she felt that any alleged mistreatment
was motivated by discrimination based on her race or
age.” (Id. at 7). Again, this is a statement
by Plaintiff. Additionally, it is not offered for the truth
of the matter asserted, and accordingly is not hearsay. It
will not be excluded.
also complains that “Loveless testifies about what
observations Kevin Butler, Assistant Principal, could or
could not make when Kevin Butler was walking the school
building or property.” (Doc. 54 at 13) (citing doc.
35-27 at 4, ¶4). Based on Loveless's familiarity
with the school building and property, this objection is
without merit. At most, it goes to weight, and not
admissibility. Plaintiff also states: “Loveless also
provides vague testimony about ‘if a person were in the
lobby, his or her view of Ms. Smith's desk would have
been obstructed by the wall and the door which separate the
lobby from the front office. Further, an individual standing
in the lobby by the front doors cannot see someone in the
mail room.' ” (Doc. 54 at 13) (citing doc. 35-27 at
5, ¶1). Again, this objection is without merit.
Plaintiff also complains that “Paragraph 2 of page 5 of
[the Loveless] declaration contains numerical percentages
that are not supported by any data, nor does Loveless
describe how he reached this number. He states[:] ‘Over
the course of her two year employment with the Board, Ms.
Smith's time records establish that she was late 87% of
the days.' There is no foundation for these numbers to
determine whether there is supporting evidence or whether
Loveless made the numbers up. These statements are admittedly
based upon Loveless' belief and speculation and due to be
struck.” (Doc. 54 at 13-14). The Court finds nothing
speculative about these statements. They will not be
asserts that the following statements by Loveless constitute
“ultimate legal conclusions under the guise of
facts”. (Doc. 54 at 13) “When discussing
Plaintiff's conversations with [him], he asserts
‘she did not say that she felt that any alleged
mistreatment was motivated by discrimination based on her
race and age.' ” (Id.). This objection is
without merit. At most, the statement is Loveless's
opinion about the content of statements to him by Plaintiff.
The opinion of a lay witness is permitted, even on the
ultimate issue of a case, if the testimony is based on
personal observations. Carter v. DecisionOne Corp.
Through C.T. Corp. Sys., 122 F.3d 997, 1005 (11th Cir.
1997). The statement will not be excluded.
also seeks to have the Court strike portions of the
declaration of Grace Hicks as “hearsay and statements
that lack personal knowledge or irrelevant information by
Hicks.” (Doc. 54 at 17.). More specifically, Plaintiff
says: “Hicks states she ‘understood' her job
duties were in relation to Connie Thomas and Anita
Smith.” (Id.). This is not hearsay. Hicks has
the requisite familiarity regarding how to perform her job
duties, including knowing what they were in relation to those
of co-employees. The statement will not be excluded.
further states that “Hick's [sic] declaration
contains hearsay. She testifies to three different lines in
her declaration regarding what Pat Strange told her or did
not tell her and that she never felt (as a white person) that
Strange mistreated her. (Id.). The three
“lines” of Hicks's declaration that mention
Strange are “I was never told by Pat Strange not to
cover Ms. Smith's desk for her while she went to lunch or
at any other time. I have never heard Ms. Strange make any
comments I felt were racist.” (Doc. 35-28 at 2). This
is not hearsay. Plaintiff overreaches when she says this
testimony is regarding “what Pat Strange told
her.” It is only regarding what Pat Strange did
not tell her (and Hicks's feelings). The
statements will not be excluded.
next complains that “Hicks also provides testimony
about her time sheets and provides a different starting time
than that discussed by her supervisor.” (Doc. 54 at 17)
(citing doc. 35-28 at 3, ¶1). Plaintiff seems to argue
that a Court should exclude any testimony by one witness that
is different that the testimony of another witness. This
argument is without merit or logic. The statements will not
argues that “Hicks also provides the opinion and
‘understanding' that she is one year older than
Smith. . . . This testimony is not based on personal
knowledge and is due to be struck.” (Doc. 54 at 17)
(citing doc. 35-28 at 3, ¶1). The Court agrees.
Testimony based solely on a witness's understanding is
comparable to belief testimony and inadmissible under Rule
56. E.g., Cermetek, Inc. v. Butler Avpak, Inc., 573
F.2d 1370, 1377 (9th Cir. 1978) (explaining that a
witness's testimony based on understanding was
insufficient to show that the witness could present competent
testimony at trial); Rolison v. Sterling, No.
08-0389-CG-M, 2009 WL 2514294, at *5-6 (S.D. Ala. Aug. 13,
2009) (Granade, J.) (striking an averment that began with a
qualifying phrase based on the affiant's understanding).
This statement will be excluded.
also complains that “Hick's [sic] also reviews and
provides testimony on time sheets that she has provided that
have not been certified by [Defendant] as business records.
This testimony is due to be struck as speculation and
conjecture.” (Doc. 54 at 17). The Court disagrees. The
statements will not be excluded.
Admissibility of Plaintiff's Exhibit 2
has moved (doc. 60) to strike Plaintiff's Exhibit 2 to
her opposition to the Motion for Summary Judgment. The
exhibit is the “Wage and Hour Handbook” for the
Vestavia Hills City School System. (Doc. 44-2). Defendant
says that Exhibit 2 is irrelevant because it states, on its
face, that it was not effective until August 10, 2015
(see doc. 44-2 at 1), which is after the date the
adverse employment action - the nonrenewal of Plaintiff's
contract - occurred. Plaintiff says, in effect, without
citation to any authority, that Defendant's counsel
tricked her and therefore Defendant is “estopped”
from seeking to strike this exhibit. (Doc. 72 at 7).
Defendant does not deny its failure to produce a
time-appropriate version of Plaintiff's Exhibit 2.
Defendant responds that Plaintiff requested (after August 10,
2015) “manuals and policies which were
currently in effect.” (Doc. 77 at 2,
¶5)(emphasis supplied). However, this is not accurate.
In the request for production at issue (Request No. 6),
“Produce any and all employee handbooks, personnel
policies and procedures, manuals, directives, memoranda or
other VBOE documents regarding hiring promotion, progressive
discipline, attendance, tardiness, discrimination,
harassment, retaliation, non-renewal of contract,
resignation, termination, salary, benefits and EEO policies,
and any and all documentation of employee training on these
policies and procedures from January 1, 2011 to the
(Doc. 53-4 at 7)(emphasis supplied).
Defendant is correct that Plaintiff's Exhibit 2 is
irrelevant. It will be excluded. However, in ruling on the
Motion for Summary Judgment, to the extent that Defendant
relies on its “wage and hour policies, ” the
Court will consider Defendant's failure to produce a
responsive time-appropriate version of Exhibit
Admissibility of Challenged Portions of Plaintiff's
Exhibits 5, 7, 9, 10, and
of Plaintiff's Exhibits 5, 7, 9, 10, and 21 to her
opposition to the Motion for Summary Judgment are
“summaries.” Defendant moves to exclude these
summaries as not proper under Fed.R.Evid. 1006. Specifically,
Defendant argues that the records summarized are not
voluminous, Plaintiff has failed to identify who prepared
them, and they contain inaccurate assumptions. Defendant also
seeks to exclude certain employee time records as not
authenticated. (Doc. 61).
responds that the employee time records were produced by
Defendant. (Doc. 73). Defendant quibbles with this response,
but ultimately does not deny that they are Defendant's
records. (Doc. 79).
Plaintiff has shown that she will be able to authenticate the
employee time records at trial, Defendant's request that
the Court exclude them at summary judgment is without merit.
The employee time records will not be excluded.
the summaries, Plaintiff states that they were prepared by a
paralegal employed by her attorney and under that
attorney's supervision and direction and therefore they
can be authenticated at trial. The Court agrees and rejects
Defendant's motion to the extent it is based on lack of
Rule of Evidence 1006 provides that a party “may use a
summary, chart, or calculation to prove the content of
voluminous writings, records, or photographs that cannot be
conveniently examined in court.” Once admitted, a Rule
1006 summary is considered substantive evidence. Peat,
Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1159
(11th Cir. 2004). Rule 1006 summary evidence can be submitted
at the summary judgment stage. See Mitchell v. Univ. of
La. Sys., 154 F.Supp.3d 364, 380 n. 8 (M.D. La. 2015)
(deGravelles, J.) (citing F.T.C. v. Hughes, 710
F.Supp. 1520, 1524 (N.D. Tex. 1989) (Fish, J.)). For a
summary to be admitted in court as substantive evidence, the
proponent must provide a proper foundation for its admission,
which should include the testimony of the witness who
prepared it or supervised its preparation. Colon-Fontanez
v. Municipality of San Juan, 660 F.3d 17, 31 (1st Cir.
2011). And, a summary admitted under Rule 1006 must be based
on materials or documents that are themselves admissible
under the Federal Rules of Evidence. Peat, Inc., 378
F.3d at 1160.
explained above, Plaintiff has now identified who prepared
these summaries and who supervised their preparation.
Further, the Court finds that the underlying documents are,
indeed, voluminous. For example, Plaintiff's Exhibit 5
summarizes information from 337 time sheets. The first twelve
pages of Plaintiff's Exhibit 7 summarizes information
from 262 time sheets. The other challenged exhibits similarly
summarize voluminous information. Accordingly, the exhibits
meet this criteria of Rule 1006.
extent that Defendant objects that the summaries contain
“assumptions, ” Plaintiff is correct when she
says that assumptions are permissible. “[T]he essential
requirement is not that the charts be free from reliance on
any assumptions, but rather that these assumptions be
supported by evidence in the record.” United States
v. Norton, 867 F.2d 1354, 1363 (11th Cir. 1989)(internal
citations omitted). Plaintiff has shown (doc. 73) evidentiary
support for the assumptions. While there is evidence that
differs from that evidentiary support, assumptions need not
be supported by undisputed evidence in order to be
admissible. The summaries will not be excluded.
Admissibility of Plaintiff's Exhibit 16
asks the Court (doc. 63) to exclude four documents contained
within Plaintiff's Exhibit 16 to her opposition to
Defendant's Motion for Summary Judgment. The basis for
exclusion is that the documents are not authenticated.
(Id.). Plaintiff says that they came from Defendant
and thus can be authenticated at trial. (Doc. 74). Defendant
agrees that it produced the documents, but says they do not
mean what Plaintiff says they mean. (Doc. 80). This is
classic argument at summary judgment, not a reason
to exclude the documents from the record. The documents will
not be excluded.
Admissibility of Plaintiff's Citations to Law Review
Articles and Websites
asks the Court to exclude Plaintiff's citations to law
review articles and websites as unauthenticated. (Doc. 64).
Plaintiff fails to join issue, and responds only that these
articles and websites show that Plaintiff's opinion that
what happened to her was based on racial stereotypes is
reasonable. (Doc. 75). Defendant replies that the
“[P]laintiff has abandoned her hostile work environment
claim” (Doc. 81 at 2, ¶3) and thus the
“reasonableness” of her opinions is no longer an
issue in this case. Defendant further replies that
Plaintiff's “use of information from an online
‘transmedia storytelling site' and
[W]ikipedia is akin to the use of newspaper
articles and other informal literature.” (Doc. 81 at 2,
¶4). The Court agrees. Plaintiff failed to respond to
Defendant's motion insofar as it sought summary judgment
as to her hostile work environment claim, and has therefore
abandoned that claim. See, e.g., Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995) (“[G]rounds alleged in the complaint but not
relied upon in summary judgment are deemed abandoned.”)
the Court agrees that facts set out in law review articles
and informal websites (as opposed to official government
websites) are similar to facts set out in newspapers. As
such, they are inadmissible hearsay and not subject, without
more, to any exception, including judicial notice. See
Cofield v. Alabama Pub. Serv. Comm'n, 936 F.2d 512,
517 (11th Cir. 1991)(“That a statement of fact appears
in a daily newspaper does not of itself establish that the
stated fact is ‘capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.' Fed.R.Evid.
201(b)(2).”). Consistent with Cofield and the
authority cited by Defendant, these documents will be
Defendant's Motion To Strike Portions of
Plaintiff's Response Brief
has moved to strike (doc. 65) potions of Plaintiff's
brief (doc. 43) in response to Defendant's Motion for
Summary Judgment (doc. 34). To the extent that the motion
seeks to exclude portions that reference law review articles
and websites, consistent with the Court's ruling
excluding law review articles and excerpts from websites as
evidence, the Court will not consider Plaintiff's
references to those items. To that extent, Defendant's
motion will be granted.
motion also seeks to have the Court exclude portions of
Plaintiff's brief. The basis for this aspect of
Defendant's motion is that Plaintiff's insertion of
facts into the portion of her brief in which she disputes
Defendant's statement of material facts is contrary to
this Court's Uniform Scheduling Order Appendix II. That
Order (doc. 10), at Appendix II, sets out the Court's
requirements regarding motions for summary judgment and
oppositions thereto. Regarding the “manner of stating
facts” in briefs in support and opposition to such
motions, that Order states as follows:
D. Manner of Stating Facts
All briefs submitted either in support of or opposition to a
motion must begin with a statement of allegedly undisputed
relevant material facts set out in separately numbered
paragraphs. Counsel must state facts in clear,
unambiguous, simple, declarative sentences. All statements of
fact must be supported by specific reference to evidentiary
1. Moving Party's Initial Statement of
The moving party shall list in separately numbered paragraphs
each material fact the movant contends is true and not in
genuine dispute, and upon which the moving party relies to
demonstrate that it is entitled to summary judgment. Each
such statement must be followed by a specific reference to
those portions of the evidentiary record that the movant
claims supports it. FN 3.
FN. 3 Each statement of fact should be supported by its own
evidentiary citation, regardless of the fact that more than
one statement of fact allegedly is supported by the same
specific reference to the evidentiary record or more than one
statement of fact is contained in the same numbered
2. Opposing Party's Statement of Facts
Each party opposing a summary judgment motion also must
submit a statement of facts divided as follows.
a. Response to Movant's Statement
The first section must consist of only the non-moving
party's disputes, if any, with the moving party's
claimed undisputed facts. The non-moving party's response
to the moving party's claimed undisputed facts shall be
in separately numbered paragraphs that coincide with
those of the moving party's claimed undisputed facts. Any
statements of fact that are disputed by the non-moving party
must be followed by a specific reference to those portions of
the evidentiary record upon which the dispute is based.
All material facts set forth in the statement
required of the moving party will be deemed to be
admitted for summary judgment purposes unless controverted by
the response of the party opposing summary judgment.
b. Additional Undisputed Facts
The second section may contain additional, allegedly
undisputed facts set out in separately numbered paragraphs
that the opposing party contends require the denial of
summary judgment. The second section of the opposing
party's statement of facts, if any, shall be clearly
designated as such. FN. 4. The opposing party should include
only facts which the opposing party contends are true and not
in genuine dispute.
FN. 4. Each statement of fact should be supported by its own
evidentiary citation, regardless of the fact that more than
one statement of fact allegedly is supported by the same
specific reference to the evidentiary record or more than one
statement of fact is contained in the same numbered
c. Additional Disputed Facts
The third section may contain additional, allegedly disputed
facts set out in separately numbered paragraphs that
the opposing party contends require the denial of summary
judgment. The third section of the opposing party's
statement of facts, if any, shall be clearly designated as
such. Each statement of allegedly disputed facts must be
followed by specific reference to those ...