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NIEDERMEIER v. OFFICE OF BAUCUS

July 24, 2001

CHRISTINE NIEDERMEIER, PLAINTIFF,
V.
THE OFFICE OF MAX S. BAUCUS, UNITED STATES SENATOR, DEFENDANT.



The opinion of the court was delivered by: Thomas F. Hogan, Chief Judge.

  MEMORANDUM OPINION

Pending before the Court is plaintiffs Motion to Reconsider and Vacate the Judgment of Dismissal and For Leave to Amend her Complaint ("Motion to Reconsider"), defendant's Motion to Strike plaintiffs Motion to Reconsider, and plaintiffs Request for an Oral Hearing on these motions. Upon consideration of plaintiffs and defendant's Motions, the oppositions and replies, and the entire record herein the Court will deny defendant's Motion to Strike and will deny plaintiffs Request for an Oral Hearing as well as her Motion to Reconsider and Vacate the Judgment of Dismissal and for Leave to Amend her Complaint.

I. BACKGROUND

On October 18, 2000, plaintiff Christine Niedermeier ("plaintiff") brought this action, alleging employment discrimination against her former employer, the Office of Max S. Baucus, United States Senator ("defendant"). Specifically, plaintiff alleged that she has been the victim of sex discrimination in the form of "continuing sexual harassment" (Count I) and reprisal (Count II). On March 27, 2001, the Court granted defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) and dismissed plaintiffs Complaint in its entirety with prejudice.

On April 10, 2000, plaintiff filed the instant Motion to Reconsider and Vacate the Judgment of Dismissal and for Leave to Amend her Complaint ("Motion to Reconsider"). Before filing the Motion to Reconsider, plaintiff failed to confer with opposing counsel as required by Local Civil Rule 7.1(m). Consequently, on April 24, 2001, defendant moved to strike plaintiffs Motion to Reconsider for failure to comply with the local rules of this Court. Plaintiff has also filed a Request for Oral Hearing on these motions.

II. DISCUSSION

A. Defendant's Motion to Strike

Defendant has moved to strike plaintiffs Motion to Reconsider on the grounds that plaintiffs counsel failed to meet and confer with opposing counsel, in accordance with Local Civil Rule 7.1(m)*fn1 prior to the filing of this Motion to Reconsider. Plaintiff admits that her counsel failed to meet and confer with defense counsel, but argues that (1) a meet and confer was not required in this instance because plaintiffs Motion to Reconsider is "so closely intertwined" with a dispositive motion that it should not be covered by Local Civil Rule 7.1(m); and (2) that plaintiffs counsel in good faith believed that he was not required to meet and confer with opposing counsel, since, in his opinion, nothing could be accomplished by such a meeting.

Plaintiffs argument that she was exempt from the requirements of Local Civil Rule 7.1(m) because her Motion to Reconsider relates to an order on a dispositive motion is contrary to existing authority. Local Civil Rule 7.1(m) clearly states that it applies to "any nondispositive motion." LCvR 7.1(m) (emphasis added). The District of Columbia Circuit has defined a dispositive motion as "a motion that, if granted, would result either in the determination of a particular claim on the merits or elimination of such a claim from the case." Burkhart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1215 (D.C.Cir. 1997). Even plaintiff admits that her Motion to Reconsider would not technically be a dispositive motion under this definition. See Pl.'s Opp. at 2 ("plaintiffs Motion to Reconsider may technically not be a `dispositive motion' under the Court's definition . . ."). Nevertheless, plaintiff urges this Court to read into Local Civil Rule 7.1(m) an exception for motions that are "closely intertwined" with dispositive motions. Id. However, Local Civil Rule 7.1(m) clearly states that it applies to "any nondispositive motion," and provides no exception for motions relating to dispositive motions. LCvR 7.1(m) (emphasis added).

In McMillan v. United States, No. 1:90-CV-798, 1992 WL 281405 (W.D.Mich. Sept. 24, 1992), the case relied upon by plaintiff as "the only relevant case cited by Defendant," Pl.'s Opp. at 2, the court held that a Rule 59(e) motion is a nondispositive motion. Contrary to plaintiffs assertions, the McMillan court did not decline to strike the reply brief, notwithstanding the party's failure to meet and confer, because the motion was "closely intertwined" with a dispositive motion. In fact, the duty to meet and confer was not at issue in that case; instead, the court granted the motion to strike based on the fact that reply briefs were not permitted under the court's local rules for nondispositive motions and that a reply brief had been filed without leave of court.*fn2 McMillan, 1992 WL 281405, at *1. Furthermore, plaintiffs argument for escaping Local Rule 7.1(m) by arguing that her motion was "closely intertwined" with a dispositive motion was explicitly rejected in Center for Auto Safety it National Highway Traffic Safety Administration, 93 F. Supp.2d 1, 12 (D.D.C. 2000). As explained in Center for Auto Safety, there is simply no exception to Local Civil Rule 7.1(m) for nondispositive motions which happen to relate to dispositive motions. Id. Therefore, plaintiffs counsel did breach Local Civil Rule 7.1(m).

With respect to plaintiffs counsel's argument that he believed in good faith that a meet and confer session was not required in this situation because nothing could be accomplished by such a meeting, plaintiffs counsel is hereby on notice that a meet and confer session is required under Local Civil Rule 7.1(m) regardless of whether or not plaintiffs counsel personally believes it would be productive. The Rule explicitly dictates that the party filing the nondispositive motion "shall" meet and confer with opposing counsel "in good faith" with the intent of learning if there would be any objection to the motion and if so, of narrowing the issues in dispute. See Alexander v. FBI, 186 F.R.D. 197, 199 (D.D.C. 1999) (The purpose of Local Civil Rule 7.1(m) is "to force litigants to attempt to resolve, or a [sic] least narrow, the disputed issues to prevent the unnecessary waste of time and effort on any given motion," not "to simply determine whether the motion will be opposed"). Determining in advance that a meet and confer session would be futile does not meet the "good faith effort' requirement of Local Rule 7.1(m). Attorneys are not authorized to determine unilaterally whether a meet and confer session would be productive and thus whether or not it was warranted. See Alexander, 186 F.R.D. at 199 ("[Local Civil Rule 7.1(m)] would be meaningless if a party could . . . file any nondispositive motion they chose without meeting and conferring, and later argue that a [Local Civil Rule 7.1(m)] argument is moot simply because the motion is later opposed"). Therefore, plaintiffs counsel's independent determination that a meet and confer session was unnecessary because it was unlikely to be productive is insufficient and does not provide a basis to ignore the clear mandates of Local Rule 7.1(m).

Despite plaintiffs counsel's breach of Local Civil Rule 7.1(m), the Court will deny defendant's Motion to Strike. Given the general judicial preference for resolving motions on their merits rather than dismissing them on technicalities, the fact that this will be plaintiffs final opportunity to argue the merits of her case to this Court, and the desire to avoid prejudicing litigants for their counsel's errors, the Court will consider plaintiffs Motion for Reconsideration on its merits despite her counsel's violation of Local Rule 7.1(m).

B. Plaintiffs Motion to Reconsider

In her Motion to Reconsider, plaintiff seeks to vacate the Court's judgment dismissing this case with prejudice and to amend her retaliation claims based on the continued withholding of her personal ...


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