2005 | Cited 0 times | D. Maine | February 9, 2005


With her Response in Opposition to the Postal Service's Motionfor Partial Summary Judgment, Plaintiff Linda L. Randall filed aMotion to Strike fifteen of Defendant Postal Service's Statementof Undisputed Facts Including Material Facts. Ms. Randall'sobjections are not well founded and this Court DENIES her motionin its entirety.1


A. Ms. Randall's Failure to Comply With Local Rules 7 and 56

Responding to the Postal Service's Motion for Partial SummaryJudgment, Ms. Randall filed a Motion to Strike Defendant'sStatement of Undisputed Facts Including Material FactsPage 2("Statement of Material Facts"). However, instead of respondingto each statement while preserving her objection, Ms. Randall haselected only to object and not respond. She allows she willrespond "in the event [the Motion to Strike] is denied." (Pl.'sResp. to Def.'s Statement of Undisputed Facts and Statement ofAdditional Facts, at 1 n. 1 (Docket # 23)).

This procedure is contrary to Local Rules 7(b) and 56(c). LocalRule 7(b) requires the non-movant to respond "within twenty-one(21) days after the filing of a motion." Local Rule 56(c)requires the respondent to "admit, deny or qualify the facts." Byfailing to admit, deny or qualify the movant's facts, Ms. Randallhas effectively attempted to extend the time within which torespond to the Postal Service's Statement of Material Facts. Ms.Randall's contemplated procedure would require the court to rulefirst on her Motion to Strike and then allow her additional timewithin which to respond.

This inappropriate procedure contains its ownsanction.2 Ms. Randall's failure to timely respond to thePostal Service's Statement of Material Facts runs the risk theMotion to Strike will not be granted. If so, the fact is deemedadmitted, because facts "shall be deemed admitted unless properlycontroverted," and she has failed to respond. D. Me. Loc. R.56(e); see O'Donnell v. Earle W. Noyes & Sons,98 F. Supp. 2d 60, 61 n. 1 (D. Me. 2000).

B. General Objection: Ms. Randall's Claim the Postal ServiceFailed to Comply with Local Rule 56(b)

Ms. Randall objected generally to the Postal Service'sStatement of Material Facts on the grounds that it has "more thanone assertion . . . contained in each paragraph, the statement isneither short nor concise, and the statement contains subjectheadings throughout and contains 22Page 3footnotes, which are not set forth in `separately numberedparagraphs.'"3 (Pl.'s Mot. to Strike at 2 (Docket # 21)).This Court overrules Ms. Randall's general objections.

1. One Assertion Per Paragraph

To the extent there is any confusion, the requirement of"separately numbered paragraphs" does not mean each paragraphmust contain only one sentence. The Postal Service's statementsdo not violate Local Rule 56(b).

2. Short and Concise

Motions for summary judgment on employment discrimination casesare commonly fact intensive. To determine whether out of timeevents should be considered a continuing violation requires thecourt to address "who, what, and how often" questions. See,e.g., Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002);Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). In view ofthe issues, a statement of material fact of thirty-eightparagraphs is not excessive on its face. Furthermore, this Courthas reviewed the Postal Service's submission and concludes itviolated neither the letter nor the spirit of Local Rule 56(b).See Stanley v. Hancock County Comm'rs, 2004 ME 157 ¶ 7,___ A.2d ___ (Dec. 23, 2004) ("The Commissioners' motion wassupported by a statement of material facts . . . containing 191separate facts. . . ."). As the Postal Service points out, Ms.Randall's objection rings hollow in view of hercounter-submission of thirty-nine responsive statements ofmaterial fact.

3. Subject Headings

Regarding headings in the Postal Service's Statement ofMaterial Facts, headings, like captions, are not technically partof a pleading and only assist the reader to locate and place theasserted fact in its proper context. Hoffman v. Halden,268 F.2d 280, 303 (9th Cir. 1959),Page 4overruled on other grounds by Cohen v. Norris, 300 F.2d 24 (9thCir. 1962) ("[T]he caption of an action is only the handle toidentify it. . . ."). Headings may have the additional advantageof assisting the proponent to avoid redundancy;4 havingreviewed the Postal Service's submission, this Court concludesthere has been no inappropriate use of headings.

1. The motion to strike has become the evil twin of the motionfor summary judgment. Despite admonitions from the bench and anotable lack of success, counsel seemed compelled to file motionsto strike in response to motions for summary judgment, positingevery conceivable objection to the opposing party's statement ofmaterial fact. There are several reasons this motion practicefrustrates, rather than enhances the resolution of thesubstantive motion. First, the motion to strike is filed in theface of the court's obligation to view the evidence in a lightmost favorable to the non-moving party. Once the respondent hasraised a genuine issue of material fact, a motion to strike issuperfluous. Second, the motion to strike is in derogation of thelocal practice, which allows objections in the party's response.Third, this corollary motion practice seems to generateobjections that experienced counsel would be loathed to raisebefore the court at an evidentiary hearing and, if raised, wouldbe speedily dispatched. Although the motion to strike remainsavailable for the extraordinary case, this is one weapon in thestrategic arsenal that is more effective when used sparingly.

2. In this case, it is not much of a sanction, since Ms.Randall could not for the most part have denied in good faith thefacts set forth in Defendant's Statement of Material Facts towhich she interposed objections.

3. Randall also objects to the Postal Service's pleadingsbecause they are single spaced in violation of Local Rule 10,which requires that all papers filed with the court "shall betyped double-spaced or printed on 8-1/2 × 11 inch paper." D. Me.Loc. R. 10. The Postal Service concedes that its pleadingsviolated this local rule.

4. Stanley v. Hancock County Commissioners, 2004 ME 157 ¶ 7,___ A.2d ___ (Dec. 23, 2004) recites that the statements ofmaterial fact not only contained 191 separate paragraphs, butalso "several . . . repeated the same facts in various forms twoor more times." Stanley, 2004 ME 157, ¶ 7. If headings assistcounsel to avoid such redundancy, this Court voices noobjection.

5. Some of Ms. Randall's objections skate on thin legal ice.For example, Postal Service Statement of Material Facts ¶ 5states that on March 15, 1999, Ms. Randall signed a documententitled "United States Postal Service Policy on SexualHarassment." In conformance with Local Rule 56(b), the PostalService supported its statement with a citation to theDeclaration of Robin Stover and a copy of the policy inAttachment C. According to the Declaration, Ms. Stover herselfconducted the June 10, 1996 orientation for new employees, whichMs. Randall attended. (Stover Decl. at 2-4). Ms. Randallacknowledged the date of the training with the initials "LR" andshe signed her full name to the policy on March 15, 1999. (Id.at 4). Noting that Ms. Stover "does not purport to have witnessedplaintiff signing that document" and "the mere existence of asignature on the document is not evidence that the signature isthat of Linda Randall," Ms. Randall declares that the assertionsmade in these paragraphs are "not supported by the informationcontained in the declarations." (Pl.'s Mot. to Strike at 5-6). Ms. Randall's objection is overruled. These records areadmissible under Rule 803(6) "unless the source of information orthe method or circumstances of preparation indicate lack oftrustworthiness." Fed.R. Evid. 803(6); see United States v.Boylan, 898 F.2d 230, 257 (1st Cir. 1990), cert. denied,498 U.S. 849 (1990) (police personnel files admissible as businessrecords). In the face of authenticating evidence from the personwho taught the sexual harassment seminar, Ms. Randall isdisputing, after all, whether the dated signature with her ownname on her employer's sexual harassment policy is her ownsignature. If Ms. Randall has a good faith basis for contendingshe did not sign the document, she should have raised it. Counselare urged to cut to the chase; to do otherwise diminishes anevidentiary objection to a mere quibble.Page 1

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