United States District Court, M.D. Alabama, Northern Division
KIMBERLY FASKING, et. al., Plaintiffs,
JOHN H. MERRILL, Alabama Sec. of State, in his official capacity, Defendant.
MEMORANDUM OPINION & ORDER
STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE
individuals who allege that Alabama Secretary of State John
Merrill blocked them from his @JohnHMerrill twitter account
bring this First Amendment action for declaratory and
injunctive relief. Rather than filing an answer, Secretary
Merrill responded to plaintiffs' complaint with a
threshold motion for summary judgment. (Doc. 12). The sparse
summary-judgment record submitted by Secretary Merrill is
insufficient to support his motion, and it is due to be
denied on that procedural ground. Defendant may renew his
motion when the record is more fully developed.
STANDARD OF REVIEW
judgment is appropriate “if 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 a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party
moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any,' which it believes demonstrates the absence of a
genuine issue of material fact.” Id. at 323.
The movant can meet this burden by identifying record
material showing that the material facts are not in dispute,
or by showing that the nonmoving party lacks evidence
establishing an essential element of their case. Id.
provides that “[a] party asserting that a fact cannot
be . . . genuinely disputed must support the assertion by
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other
materials[.]” Fed.R.Civ.P. 56(c)(1)(A). When ruling on
a motion for summary judgment “[t]he court need
consider only the cited materials[.]” Fed.R.Civ.P.
Merrill responded to plaintiffs' complaint by filing a
summary judgment motion before the commencement of discovery
or even Rule 26 initial disclosures. (Doc. 12). While this is
procedurally proper and Rule 56 allows a party to file a
motion for summary judgment “at any time until 30 days
after the close of all discovery, ” filing a
pre-discovery summary judgment motion does not relieve the
moving party of supporting the motion with evidentiary
material. Fed.R.Civ.P. 56(b). Secretary Merrill's initial
motion, (Doc. 12), was filed without any supporting
evidentiary material and contains no citations to any factual
record. When plaintiffs identified this deficiency, (Doc. 16)
at 2, 4-5, 30-31, Secretary Merrill filed a brief, conclusory
affidavit stating essentially that the Twitter account at
issue is his personal account. (Doc. 23-1). This affidavit
does not cure the complete lack of a summary judgment record
supporting defendant's motion.
example, defendant argues that “[t]he blocking of the
Individual Plaintiffs, which resulted from their tweets -
which the Defendant deemed to be disruptive or personal
attacks - were viewpoint neutral[.]” (Doc. 12) at 18.
Plaintiffs “disagree about the circumstances
surrounding the blocking” and “strongly take
issue with Merrill's assertion that they were being
disruptive and making personal attacks as Defendant's
motion suggests.” (Doc. 16) at 30. Yet Secretary
Merrill has provided the court with no factual material
supporting his position although the tweets at issue are
presumably readily available.
point out that defendant's papers closely track those
filed on behalf of the President in Knight v. Trump,
No. 17-cv-5205-NRB (S.D.N.Y.). (Doc. 23) at 31, Exs. A&B.
However, in that case the parties had agreed to a joint
stipulation of facts, and the summary judgment papers contain
extensive citations to this undisputed factual record.
Id. There is no such record here, and the court
declines to address the merits of Defendant's motion when
there is no record support for even the most basic factual
propositions asserted. See, Fed.R.Civ.P. 56(c)(3).
state that they are willing to meet with Defendant in order
to work out stipulated facts as was done in Knight,
or to narrowly tailor discovery to address the issues before
the court. (Doc. 16) at 31. This strikes the court as
eminently reasonable, and the parties may wish to proceed
with cross-motions for summary judgment on a stipulated
factual record as was done in Knight. By separate
Order the Court will set a status conference where the
parties are to report on whether they intend to proceed on
stipulated facts or move into discovery and to provide a
proposed case management schedule.
foregoing reasons, it is hereby
that Defendant John H. Merrill's Motion for Summary