MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Defendants,
the District of Columbia and five Metropolitan Police
Department (“MPD”) officers, [1] move to strike
Plaintiff Ashton Wilkins's [35] Statement of Undisputed
Material Facts (“Plaintiff's Statement”),
which accompanies Plaintiff's [37] Opposition to
Defendants' Motion for Summary Judgment. Upon
consideration of the briefing, [2] the relevant legal authorities,
and the record as a whole, the Court shall exercise its
discretion to GRANT Defendants' [ 40]
Motion to Strike Plaintiff's Statement of Undisputed
Material Facts (“Motion to Strike”). Although the
Court shall not rely on Plaintiff's Statement when
evaluating his [37] Opposition to Defendants' Motion for
Summary Judgment, the Court shall consider his [29-1]
“Defendants' Statement of Undisputed Material Facts
with Plaintiff's Final Objections and Counter-statement
of Facts” (“Plaintiff's Objections”).
The Court shall instruct Defendants to indicate their view of
whether, and to what extent, Plaintiff's [29-2]
“Additional Facts Relevant to Defendants [sic]
SMF” (“Plaintiff's Additional Facts”)
is responsive to Defendants' [41-1] Statement of
Undisputed Material Facts (“Defendants'
Statement”). This Memorandum Opinion shall examine the
relationship between Defendants' Statement,
Plaintiff's Objections thereto, Plaintiff's
Additional Facts, Plaintiff's Statement, and
Defendants' Motion to Strike that statement.
This
action arises from MPD's alleged response to an incident
that took place in the Gallery Place area of Washington,
D.C., on March 8, 2016. The Court previously summarized
certain of Plaintiff's allegations about that incident in
Johnson v. District of Columbia, 326 F.R.D. 346, 347
(D.D.C. 2018), and need not elaborate here.
Following
a contentious discovery period, the parties began summary
judgment briefing. Because Plaintiff chose not to move for
summary judgment, which is his choice, the parties have been
briefing only Defendants' [ 21] Motion for Summary
Judgment. After the Court granted Plaintiff's three
requests for extensions of time to file his opposition,
Plaintiff at last did so, but “a number of procedural
issues” with that briefing prompted the Court to strike
it sua sponte. Min. Order of Feb. 21, 2019
(indicating that it otherwise would be “difficult for
Defendants to respond and for the Court to sift through the
pleadings”); see also Min. Order of Feb. 20,
2019 (three extensions). The Court made clear, in pertinent
part, that
Plaintiff appears to have filed incorrect versions of his
[26] exhibits and perhaps his [25-2] Statement of Undisputed
Material Facts. Both of these filings appear to pertain to
related case Johnson v. District of Columbia, No.
17-cv-883, rather than to this case. Plaintiff's filings
in this case, including material facts, should be strictly
limited to what is necessary to support his own case.
There are additional problems with Plaintiff's [25-1]
Statement of Undisputed Material Facts with Plaintiff's
Final Objections and Counterstatement of Facts. Plaintiff
shall strictly comply with Paragraph 6 of the Court's
[20] Scheduling and Procedures Order. Although the Court
expects full compliance with those instructions, the Court
shall address glaring issues here. The revised statement(s)
shall exclude all legal argument and legal citations; any
excised legal argument or legal citations may be included in
a revised Opposition brief. Each paragraph responding to
Defendants' statement of material facts shall briefly
state whether Plaintiff admits or denies each fact. If
Plaintiff admits in part and denies in part a given fact
paragraph, then he shall very specifically distinguish which
parts he admits and denies; there shall be no ambiguous
responses of “not disputed, with qualifications,
” “true, but, ” or other permutations. Any
denial importantly shall include a record citation and shall
state in very summary form the factual content that
contradicts Defendants' assertion. Contra, e.g.,
Defs.' Stmt. of Undisputed Material Facts with Pl.'s
Final Objs. and Counterstmt. of Facts, ECF No. [25-1], ¶
4 (not citing any portion of record for contention that,
inter alia, “Mr. Johnson moved and did not
stay in the same position”). Lastly, there does not
appear to be any counterstatement of facts; perhaps
Plaintiff's substitute for his [25-2] filing, as
discussed above, will add a counterstatement if he intends to
submit one, as the title of his [25-1] filing suggests.
Min. Order of Feb. 21, 2019. The Court permitted Plaintiff to
file a revised version of his Opposition and accompanying
materials, which he did. That filing prompted Defendants'
pending Motion to Strike, which has now been fully briefed.
At the
threshold, Defendants could have communicated at greater
length and secured a clearer indication and confirmation of
Plaintiff's view before filing their Motion to Strike.
See LCvR 7(m); Defs.' Reply, Ex. A, ECF No. 42-1
(the parties' email correspondence). But, in an effort to
comply with Local Civil Rule 7(m), Defendants did contact
Plaintiff for his view and, at Plaintiff's request, did
identify the issues in barebones fashion. Moreover,
Defendants' Motion to Strike includes a Rule 7(m)
certification stating that “Plaintiff has not
consented, and this Motion is opposed.” Defs.' Mot.
to Strike Pl.'s Stmt. of Undisputed Material Facts, ECF
No. 40, at 4. It is technically true that Plaintiff did not
consent, but he never stated in the parties' email
exchange that he decided to oppose. Nevertheless, the Court
doubts that further discussion would have been fruitful,
given the scope of Defendants' arguments in their Motion
to Strike, and Plaintiff's continuing resistance thereto.
English v. Washington Metro. Area Transit Auth., 323
F.R.D. 1, 25-26 (D.D.C. 2017) (Meriweather, Mag. J.)
(evaluating merits of motion for protective order against
Federal Rule of Civil Procedure 30(b)(6) deposition
notice-despite insufficient pre-filing conferral-due to
“likely futil[ity]” of requiring further Local
Civil Rule 7(m) discussion). Accordingly, “in the
interest of judicial economy, ” the Court finds that
Rule 7(m) deficiencies shall not prevent the Court from
reaching the merits of Defendants' Motion to Strike.
Id. at 26 (citing Styrene Info. & Research
Ctr., Inc. v. Sebelius, 851 F.Supp.2d 57, 62 n.3 (D.D.C.
2012)). “Nonetheless, the Court admonishes counsel to
pay greater heed to their duty to confer during the course of
this litigation.” Styrene Info. & Research
Ctr., Inc., 851 F.Supp.2d at 62 n.3 (construing the duty
to confer under Local Civil Rule 7(m) to require in person or
telephone communications).
Turning
to the merits of Defendants' Motion to Strike, the Court
notes that their motion challenges only Plaintiff's
Statement, not his Objections or his Additional Facts. To the
extent that Plaintiff's Objections are in conformance
with the relevant rules, the Court will consider them in
resolving Defendants' Motion for Summary Judgment. The
Court shall also evaluate the responsiveness of
Plaintiff's so-called “Additional Facts” with
the aid of the response that the Court shall instruct
Defendants to supply.
As for
the challenge to Plaintiff's Statement, the Court begins
with Local Civil Rule 7(h)(1), which requires in pertinent
part that an opposing statement of material facts consist of
a “separate concise statement of genuine issues setting
forth all material facts as to which it is contended there
exists a genuine issue necessary to be litigated, which shall
include references to the parts of the record relied on to
support the statement.” “Requiring strict
compliance with the local rule is justified both by the
nature of summary judgment and by the rule's
purposes.” Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996)
(quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C.
Cir. 1980) (addressing a prior, but materially identical
version of rule)) (internal quotation marks omitted). In
short, summary judgment briefing-including the affirmative
and opposing statements of material facts-is designed to
“isolate[ ] the facts that the parties assert are
material, distinguish[ ] disputed from undisputed facts, and
identif[y] the pertinent parts of the record.”
Id. at 151 (quoting Gardels, 637 F.2d at
773) (internal quotation marks omitted). The briefing does
not do so when the statement is long, the putative disputes
are not genuine, the facts are not material, non-factual
material is included, and/or references to the record are
lacking. The casualty is the Court's ability “to
maintain docket control and to decide motions for summary
judgment efficiently and effectively.” Id. at
150.
The
Court of Appeals upheld a strict application of the local
rule in Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner. In the trial court below, the
defendant(s) had moved for summary judgment, and the
plaintiff had filed two versions of what could generously be
construed as a responsive statement of material facts.
See Id. at 148, 153. The court granted the
defense's motion to strike one version for failure to
comply with a materially identical predecessor of current
Local Civil Rule 7(h)(1), and the court evidently did not
rely on the other version, namely a “‘relevant
facts' section” of the plaintiff's brief.
Id. at 148-49. The Court of Appeals found that the
district court had not abused its discretion, and observed
the following about the “relevant facts” version:
Twenty-nine pages long, the section hardly complies with the
rule's requirement that statement [sic] of genuine
disputed material issues be “concise.” Replete
with factual allegations not material to Jackson's
substantive claims and repeatedly blending factual assertions
with legal argument, the “relevant facts” section
does not satisfy the purposes of a Rule 108(h) statement. In
order to identify material disputed issues that would
preclude the entry of summary judgment, the court would have
to sift and sort through the record, that is, engage in
time-consuming labor that is meant to be avoided through the
parties' observance of Rule 108(h). Requiring the court
to treat Jackson's “relevant facts” statement
as his Rule 108(h) statement would therefore undermine the
purposes of the rule by improperly placing the burden on the
court, rather than on the opposing party or his counsel, to
“winnow the wheat from the chaff.” Bell,
Boyd, & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir.
1990).
Jackson, 101 F.3d at 153 (footnote omitted).
Much
the same could be said about Plaintiff's Statement in
this case. First, the Statement contains a total of 67
numbered paragraphs. Some of those paragraphs contain a great
many facts. E.g., Pl.'s Stmt. ¶ 17 (more
than seven lines of run-on text with numerous factual
assertions); id. ΒΆ 22 (six sentences with
numerous factual assertions). The length and complexity of
Plaintiff's Statement stands in sharp ...