Free Motion to Strike - District Court of Arizona - Arizona

John Gabroy, S.B. #004794 GABROY, ROLLMAN & BOSSÉ, P.C. 3507 N. Campbell Avenue, Ste. 111 Tucson, Arizona 85719 520/320-1300 Garry B. Bryant, S.B. #004773 LAW OFFICES OF GARRY B. BRYANT 3507 N. Campbell Avenue, Ste. 101 Tucson, Arizona 85719 520/322-9000 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JOHN KILLINGSWORTH, a married man, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants. No. CIV-03-1950-PHX-NVW MOTION TO STRIKE DEFENDANTS' SUPPLEMENTAL STATEMENT OF FACTS OR, IN THE ALTERNATIVE, MOTION FOR LEAVE TO FILE SUPPLEMENTAL RESPONSE AND STATEMENT OF FACTS

Plaintiff hereby moves to strike Defendants' Supplemental Statement of Facts and the supplemented portions of Defendants' Appendix of exhibits in support of their Motion for Summary Judgment, and the portions of Defendants' Reply that rely on and cite to Defendants' Supplemental Statement of Facts.1 In the alternative, Plaintiff moves for leave to file a supplemental response and supplemental statement of facts in support of his Opposition to Defendants' Motion for Summary Judgment. This Motion is supported by the accompanying Memorandum of Points and Authorities, and all matters of record, which are incorporated herein by reference. .... ....

Plaintiff would have filed this Motion much earlier, but did not because the Court stayed the proceedings pending its ruling on the recusal issue.
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. It is well-settled that a party seeking summary judgment is required to set forth "[a]ll arguments in favor of a motion ... in the initial memorandum supporting the motion so that the opposing party may address all arguments in its response." Mueller v. Mars, Inc., 714 F. Supp. 351, 353 (N.D. Ill. 1989); see also Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F. Supp. 6, 9 (N.D. Ill. 1983) (holding that, "[o]n any issue in a summary judgment motion, as on any issue at trial, each party is entitled to one bite at the apple"). Instead of doing that, Defendants have filed an 11-page Reply, a 158-page Objections and Supplemental Statement of Facts, and a 33-page Separate Statement of Facts. Plaintiff does not contest that a defendant may properly file objections to a plaintiff's statement of facts, arguing that the evidence on which a fact relies is incompetent under Fed. R. Civ. P. 56(e) or that a fact as stated mischaracterizes the evidence that is cited in support of the fact. In that case, it is appropriate for the defendant to discuss the evidence cited by the plaintiff. But, this is not what Defendants did. The overwhelming majority of the 158 pages of the latter submission is made up of Defendants' supplemental statement of facts. More importantly, some of Defendants' objections and almost all of their supplemental statements of fact cite to and argue new facts. And, most of the new facts that Defendants state and argue are derived from new exhibits or new portions of old exhibits supplemented with new pages. This is improper and highly prejudicial. Further, Defendants disingenuously obtained leave of court to file a new Appendix of exhibits in favor of their Motion for Summary Judgment. Contrary to the justification stated in their request for leave, Defendants did not merely file a corrected Appendix.
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Instead, they added numerous pages of deposition transcripts to 13 different exhibits included with their original appendix. See Defs.' March 2005 App., Ex. 2-8, 11-14, 18, 127. They also supplemented two other exhibits by including additional pages. Id., Ex. 16, 64. And they added 28 completely new exhibits to their new Appendix. Id., Ex. 128-55. Finally, almost every argument made in Defendants' Reply cites to and relies on their new, supplemental statements of facts and their new exhibits. See Defs.' Reply, at 1, 3-6, 8-9, 11. Essentially, what Defendants have done is to file a reply statement of facts without leave of court. There is no provision in the Federal Rules of Civil Procedure or the district court's local rules authorizing this. See, e.g., Fed. R. Civ. P. 56(c);2 LRCiv 56.1(a), RULES
OF PRAC. OF THE U.S.

DIST. CT. FOR THE DIST. OF ARIZ. (providing that summary judgment

movant shall file a separate statement of material facts with its motion, and the party opposing the motion shall file its separate statement of material facts with its opposition or response); LRCiv 56.1(b), RULES OF PRAC. OF THE U.S. DIST. CT. FOR THE DIST. OF ARIZ. (providing for a reply, but not for a reply statement of facts). And by doing so, Defendants violated the Court's local rule regarding the length of reply memoranda. See LRCiv 7.2(e), RULES OF PRAC. OF THE U.S. DIST. CT. FOR THE DIST. OF ARIZ. (providing that reply memoranda in support of motions are limited to 11 pages in length). By submitting a reply statement of facts, Defendants exceeded LRCiv 7.2(3)'s page limitation by well over 100 pages. This is not only improper, but unfair. "Rule 56 neither authorizes nor forbids a reply brief by the party moving for summary judgment." Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 10th Cir. 1998). Thus, a fortiorari, Rule 56 does not authorize a reply statement of facts. Indeed, the fact that "Rule 56(c) requires the nonmoving party to be given notice and a reasonable opportunity to respond to the movant's summary judgment materials (see id.) strongly suggests that Rule 56 precludes a summary judgment movant from presenting the last statement of facts in the briefing process.
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Such procedural rules are designed to "ensure orderly and efficient briefing" and to prevent an endless battle over which side should get the last word. See, e.g., Mueller, 714 F. Supp. at 353 (the policy of requiring all arguments in favor of a motion to be advanced in the initial memorandum is intended to "ensure orderly and efficient briefing"). More importantly, these procedural rules are intended to satisfy Rule 56(c)'s requirement that the non-movant receive notice and an adequate and reasonable opportunity to respond to the movant's arguments and facts before the Court considers the motion. See, e.g., Seay v. Tennessee Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003) ("The purpose of Rule 56(c) is to afford the nonmoving party notice and a reasonable opportunity to respond to the moving party's summary judgment motion and supporting evidence"). Thus, Defendants seek summary judgment in this case based on argument and evidence that that are raised for the first time in their Reply and the materials supporting the Reply. This violates basic procedural principles of which defense counsel cannot maintain that they were unaware. This also violates Rule 56(c). It would be an abuse of discretion for the Court to consider Defendants' newly raised arguments and evidence without giving Plaintiff an opportunity to file a supplemental response and supplemental statement of facts. Seay, 339 F.3d at 482 (holding that the district court abused its discretion in granting summary judgment without allowing Plaintiff an adequate opportunity to respond to new evidence filed with the movant's reply papers). Therefore, the Court has two choices--either to strike and refuse to consider Defendants' supplemental statement of facts and Reply, or to extend the briefing process to permit Plaintiff to respond to the Defendants' supplemental statement of facts and Reply. Id.; see also Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 10th Cir. 1998) ("Having accepted the reply brief, the district court in fact had two permissible courses of action. It could either have
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permitted a surreply or, in granting summary judgment for the movant, it could have refrained from relying on any new material contained in the reply brief"), cert. denied, 525 U.S. 1054 (1998); Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985) ("The district court therefore had two choices when it was informed that defendants had filed a reply brief [in which they advanced new reasons for summary judgment and relied on new affidavits]: it could strike the brief or grant plaintiff as the nonmoving party the opportunity to respond to it"). However, in this case, certain of the exhibits--new affidavits from Gonzales, Dannewitz, and D'Andrea (all executed in March 2005 after Plaintiff had submitted his Opposition)--and the facts contained therein must be stricken in their entirety because no amount of additional briefing would permit Plaintiff to fairly respond to the exhibits. The affidavits of Gonzales, Dannewitz, and D'Andrea, and the exhibits attached thereto, all present evidence never previously produced or disclosed in this lawsuit. For example, attached to D'Andrea's new affidavit are lists of employees and agents for certain time periods broken down by age, race, and reason for termination. See Exs. to Defs.' App. 140 (D'Andrea March 2005 Aff.). Defendants also present for the first time new evidence pertaining to Gonzales' hiring practices and in rebuttal to Plaintiff's evidence showing Gonzales' purposeful discrimination. See, e.g., Defs.' App. 150 (Gonzales March 2005 Aff.). Finally, Defendants present new testimony from Dannewitz regarding issues about which he acknowledges he was not examined at his deposition. See, e.g., Defs.' App. 151 (Dannewitz March 2005 Aff.). With respect to these affidavits and the evidence contained therein and attached thereto as exhibits, Plaintiff cannot respond through supplemental briefing without reopening discovery and examining Gonzales, Dannewitz, and D'Andrea at deposition
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regarding the new issues. Therefore, the Court should strike these particular exhibits, and all references to them in Defendants' supplemental statement of facts and reply memorandum, in the record. II. THE COURT HAS AUTHORITY TO REFUSE TO CONSIDER ARGUMENTS AND EVIDENCE RAISED FOR THE FIRST TIME ON REPLY. Courts usually ignore arguments raised for the first time in a reply memorandum because to do otherwise "deprives the other side of a response." Three D. Dep'ts, Inc. v. K Mart Corp., 732 F. Supp. 901, 905 n. 6 (N.D. Ill. 1990). This policy has been followed in this Court. See, e.g., Milliken & Michaels of Ariz., Inc. v. Houseworth, 942 F. Supp. 454, 457 (D. Ariz. 1996) (refusing to consider new allegations and arguments in a reply). This policy is also followed (albeit by rule) by appellate courts. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) ("Issues raised for the first time in the reply brief are waived"); see also Sophanthavong v. Palmateer, 378 F.3d 859, 872 (9th Cir. 2004) (noting the "obvious" prejudice wrought by allowing litigants to raise arguments for the first time in reply: doing so deprives the opponent of "the opportunity to point to the record to show that the new theory lacks legal or factual support"). The Sixth Circuit has explained that the policy against considering new arguments and new evidence raised in a reply is based on the requirement of Rule 56(c) that the nonmovant get notice and an opportunity to respond before summary judgment can be entered: When new submissions and/or arguments are included in a reply brief, and a nonmovant's ability to respond to the new evidence has been vitiated, a problem arises with respect to Federal Rule of Civil Procedure 56(c). Rule 56(c) requires that an adverse party receive ten days notice before a district court may enter summary judgment. Fed. R. Civ. P. 56(c); Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 105 (6th Cir. 1995). The purpose of Rule 56(c) is to afford the nonmoving party notice and a reasonable opportunity to respond to the moving party's summary judgment motion and supporting evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 ... (1986) (holding that summary judgment is to be entered only if the
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nonmovant is on notice that it must come forward with all of its evidence). It is only logical that the purposes of notice and opportunity to respond extend Rule 56(c) to the situation where the moving party submits in a reply brief new reasons and evidence in support of its motion for summary judgment, and require a district court to allow the nonmoving party an opportunity to respond. Beaird, 145 F.3d at 1164-65 (citing Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985)). This is particularly true when the district court relies on the new evidentiary submissions. Seay, 339 F.3d at 481-82. Indeed, this is the rule in the all of the circuit courts of appeal that have addressed the issue. See Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004) ("[T]hose circuits that have expressly addressed this issue have held that a district court may rely on arguments and evidence presented for the first time in a reply brief as long as the court gives the nonmovant an adequate opportunity to respond"); III. IF THE COURT INTENDS TO CONSIDER DEFENDANTS' NEWLY RAISED ARGUMENTS AND EVIDENCE, IT MUST PERMIT PLAINTIFF AN OPPORTUNITY TO RESPOND. "[T]hose circuits that have expressly addressed this issue have held that a district court may rely on arguments and evidence presented for the first time in a reply brief as long as the court gives the nonmovant an adequate opportunity to respond." Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004) (citing Seay, 339 F.3d at 481-82; Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2nd Cir. 2001); Beaird, 145 F.3d at 1164; Cia. Petrolera Caribe, 754 F.2d at 410); see also Aviles v. Cornell Forge Co., 183 F.3d 598, 605 (7th Cir. 1999); S. Baicker-McKee, W. Janssen & J. Corr, FEDERAL CIVIL RULES HANDBOOK 892 (2005 ed.) ("If the moving party introduces new evidence in a reply brief or memoranda, the trial court should not accept and consider the new evidence without first affording the non-moving party an opportunity to respond"). Importantly, failure to do so constitutes an abuse of discretion and reversible error. Seay, 339 F.3d at 482 (holding that the district court abused its discretion in granting summary judgment without allowing Plaintiff an adequate opportunity to respond to the
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new evidence); see also Aviles, 183 F.3d at 605 (reversing summary judgment against employee on claim that employer retaliated against him by filing false police report because employer raised argument for the first time in reply and not granted opportunity to respond). IV. DEFENDANTS' SUPPLEMENTAL STATEMENT OF FACTS AND REPLY RELY ON EVIDENCE THAT WAS NOT INCLUDED IN THEIR ORIGINAL STATEMENT OF FACTS OR PLAINTIFF'S STATEMENT OF FACTS. As noted above, Defendants supplemented 13 different deposition transcripts exhibits that they included with their original appendix. See Defs.' March 2005 App., Ex. 2-8, 11-14, 18, 127.3 This supplementation consisted of the addition of 116 new pages of deposition testimony. Id. Defendants also supplemented two other exhibits by including additional pages. Id., Ex. 16 (adding pp. 17-21 to the Tr. of the October 22, 2001 meeting), Ex. 64 (adding p. LM00028). Finally, Defendants added 28 completely new exhibits to their new Appendix, id., Ex. 128-55, including new affidavits from Defendant Gonzales, Mike Dannewitz, and Ellen D'Andrea, see id., Ex. 140, 150-51. These 28 new exhibits do not include four new exhibits attached to the new D'Andrea affidavit, see id., Ex. 140, which includes multi-page charts created for the supplemental statement of facts, id. Thus, to be precise, Defendants supplemented 15 exhibits with additional materials and submitted 32 new exhibits. All of these materials are new. Therefore, Plaintiff has not had an opportunity to respond to them.

Defs.' App. 2 (pp. 61-65, 74, 96-97, 134, 144-46, 164-66, 172-75); Defs.' App. 3 (p. 12) Defs.' App. 4 (pp. 17-18, 36-38, 61-62, 73, 103); Defs.' App. 5 (pp. 9, 51-59, 84-85); Defs.' App. 6 (p. 138); Defs.' App. 7 (pp. 15-16); Defs.' App. 8 (pp. 63, 71); Defs.' App. 11 (pp. 62-63, 205-06, 215-19, 236-37); Defs.' App. 12 (pp. 17, 22-25, 45, 62-65, 72-74, 8284, 92-93, 109); Defs.' App. 13 (pp. 57, 234); Defs.' App. 14 (pp. 21-22, 34-37, 85-86, 8889); Defs.' App. 18 (pp. 55-56); Defs.' App. 127 (pp. 23-25, 43-48, 51-52, 178, 230-33, 254, 262-64).
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Further, the majority of Defendants' Supplemental Statements of Fact cite to these new materials.4 See Defs.' Supp. SOF ¶¶ 4-5, 16, 37, 40, 55, 58, 60, 66, 67, 70, 73, 77, 80, 82, 87, 103, 118-200, 203, 205, 214, 221-46, 257, 260-314, 321-70.5 Even some of Defendants' objections cite to new evidence. See Defs.' Objections to PSOF ¶¶ 85, 111. Defendants' extensive recitation of supplemental facts on reply and their reliance on new evidence in doing so is patently improper. No local rule provides for a reply statement of facts and, under Fed. R. Civ. P. 56(c), the Court must either strike these supplemental statements of fact and the parts of Defendants' Reply that rely on them, or grant leave to Plaintiff to respond to them. Defendants cannot justify this violation by arguing that their discussion was a legitimate part of their Objections to Plaintiff's statement of facts. It may have been legitimate for Defendants to discuss the evidentiary citations to Plaintiff's statement of facts to show that the cited evidence did not support the statement of fact stated by Plaintiff or to show that Plaintiff mischaracterized the evidence he cited. But, Defendants did not do Defendants' Objections to PSOF ¶¶ 75, 85 and 109 are also based on new exhibits. See Defs.' Objections and Supplemental Statement of Facts, at 33 (citing Defs.' App. 135), 48 (citing Defs.' Supp. SOF ¶ 80, which relies on Defs.' App. 140, Ex. 1-3), 58 (citing Defs.' App. 139). As such, they are improper and should not be considered unless Plaintiff is given an opportunity to respond. 5 Defendants do not actually number their supplemental statements of fact ("Supp SOFs")in their Objections and Supplemental Statement of Facts. Instead, they are placed without a paragraph number designation either after Defendants' restatement of Plaintiff's numbered statement of fact, or immediately after Defendants' restatement of one of Plaintiff's headings from his statement of facts. But, in their Reply, Defendants refer to their Supp SOFs by number (see, e g., Defs.' Objections and Supplemental Statement of Facts, at 2: "See Supp SOF Nos. 4-5 and 207-220"). This appears to be an attempt to number the Supp SOFs in accordance with the numbering used by Plaintiff in his statement of facts. But, Defendants made two errors, leading to confusion. On page 46, Defendants restate PSOF ¶ 83, but label it as PSOF ¶ 82. It appears that Defendants omitted to restate PSOF ¶ 82 and therefore all subsequent numbering is incorrect by one. Then on page 49, Defendants restate PSOF ¶ 89, but fail to assign it a paragraph number. Therefore, all subsequent numbering is off by two. Because of this, Plaintiff will refer to Defendants' Supp SOFs by the actual paragraph number of Plaintiff's statement of facts to which they respond.
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that, except on a few occasions, see Defs.' Supp. SOF ¶¶ 61, 101, 115, 121, 124, 128, 170, 184, 224, 260, 283, 318. Instead, to the extent that they discussed evidence, Defendants' purpose of the discussion was primarily to present supplemental facts--i.e., different facts--for the purpose of rebutting Plaintiff's statement of facts. That is not a proper part of an objection. Further, Defendants did not even object to many of Plaintiff's statements of fact to which they replied with supplemental statements of fact. See Defs.' Supp. SOF ¶¶ 4-5, 67, 70, 80, 87, 203, 205, 214, 221-46, 257, 321-43, 350-55, 366-70. But, even where the supplemental statements of fact were coupled with an objection, the supplemental facts discussed cannot conceivably be read as supporting the legal basis of the objection stated by Defendants. See Defs.' Supp. SOF ¶¶ 16, 37, 40, 55, 58, 60, 66, 73, 77, 82, 103, 118-200, 260-314, 344, 356-57, 359-60, 364. V. DEFENDANTS' SUPPLEMENTAL STATEMENT OF FACTS, THAT RELY ON EVIDENCE IN THE RECORD BUT RAISED FOR THE FIRST TIME, STILL VIOLATES RULE 56(c). The remainder of Defendants' Supplemental Statement of Facts cite to portions of exhibits that Defendants have included in their corrected Appendix for the first time, but were included as part of Plaintiff's PSOF exhibits, see id. ¶¶ 14, 17, 68-69, 71, 84, 86, 88, 90-93, 99-100, 104, 116-17, 208, 220, 246, 267, 306, 317-19, and on a few occasions, to Defendants' DSOF paragraphs or exhibits, see id. ¶¶ 46, 209, 215, 263, 309, 327.6 Although the newly-cited evidence may have already been in the record, Defendants discuss and argue supplemental--i.e., new--facts for the first time that they did not raise or see fit Again, Defendants failed to make objections to many of the PSOF paragraphs to which they responded with supplemental statements of facts. See Defs.' Supp. SOF ¶¶ 14, 69, 86, 117, 208, 209, 215, 220, 246, 317-19, 327. But, even where is an objection, the supplemental facts set forth are not discussed in support of the theory of the objection. See Defs.' Supp. SOF ¶¶ 17, 46, 68, 71, 84, 88, 90-93, 99-100, 104, 116, 263, 267, 306, 309.
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to discuss in their moving papers. Plaintiff cannot be said to have yet had an opportunity to respond to those facts. Plaintiff was not required to anticipate and address facts on which Defendants, as the movant, did not rely in their moving papers.. Cf. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-06 (9th Cir. 2000) (Where the "moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything" and can "defeat the motion for summary judgment without producing anything"). By the nature of the briefing process, a summary judgment opponent can only respond to the facts and legal arguments raised in the moving papers. Therefore, in his opposition papers, an opponent cannot be expected to respond to exhibits or deposition testimony that is in the record, but was not relied on by the movant. VI. DEFENDANTS' SUPPLEMENTAL STATEMENT OF FACTS VIOLATES LRCIV 7.2(e). As noted above, the consideration of Defendants' Supplemental Statement of Facts, as well as the argument in Defendants' Reply based on those facts, violates Rule 56(c) unless the Court gives Plaintiff an opportunity to respond to them. But, in addition, Defendants' inclusion of the discussion of those facts in their Supplement Statements of Facts also violates LRCiv 7.2(e). LRCiv 7.2(e) provides that reply memoranda in support of motions are limited to 11 pages in length. See LRCiv 7.2(e), RULES OF PRAC. OF THE U.S. DIST. CT. FOR THE DIST.
OF

ARIZ. Defendants used up their permitted 11 pages in their Reply memorandum. By

including the discussion of supplemental facts in a separate documents and referring the Court to those facts in their Reply, however, Defendants exceeded LRCiv 7.2(e)'s length limitation.

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VI.

IF THE COURT CHOOSES TO CONSIDER DEFENDANTS' SUPPLEMENTAL STATEMENT OF FACTS, IT SHOULD DIRECT EITHER THAT DEFENDANTS SHALL NOT BE PERMITTED TO FILE A SURREPLY OR THAT ANY SURREPLY SHALL NOT INCLUDE ANY NEW ARGUMENT BASED OR REFERRING TO NEW FACTS. Because of Defendants' blatant violation of LRCiv 56.1 and their blatant attempt to

violate Rule 56(c), should the Court choose to consider Defendants' supplementary materials and argument, it should terminate briefing after permitting Plaintiff to file his supplemental response and supplemental statement of facts. There should be some penalty for Defendants' improper actions and that penalty should be a court order directing that Defendants shall not be permitted to file a surreply. But, if the Court chooses to permit Defendants to file such a surreply, it should issue an order directing Defendants that they may file only an 11-page surreply memorandum and, therein, they may not raise any new legal arguments and may not rely on any evidence not already in the summary judgment record--i.e., the appendices filed by the parties in support of their respective statements of fact. CONCLUSION For all of the reasons stated above, Plaintiff respectfully requests that the Court strike Defendants' Supplemental Statement of Facts and the supplemented portions of Defendants' Appendix of exhibits in support of their Motion for Summary Judgment, and the portions of Defendants' Reply that rely on and cited to Defendants' Supplemental Statement of Facts, and to refuse to consider those materials in ruling on Defendants' Motion for Summary Judgment. In the alternative, Plaintiff respectfully requests that the Court grant him leave to file a supplemental response and supplemental statement of facts in support of his Opposition to Defendants' Motion for Summary Judgment, and direct that any surreply filed by Defendants be restricted to argument based on the evidence already in the record.
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RESPECTFULLY submitted this 22nd day of August 2005. GABROY, ROLLMAN & BOSSÉ, P.C. By: /S/ John Gabroy Richard A. Brown

LAW OFFICES OF GARRY B. BRYANT By: /S/ Garry B. Bryant Attorneys for Plaintiff

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