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CLEVELAND v. PRAIRIE STATE COLLEGE

July 12, 2002

IRIS CLEVELAND, PLAINTIFF,
V.
PRAIRIE STATE COLLEGE, DEFENDANT.



The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge

    MEMORANDUM OPINION AND ORDER

Plaintiff Iris Cleveland sued defendant Prairie State College for allegedly violating the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq. ("ADA") by, (1) failing to make reasonable accommodations for plaintiff's disability, and (2) deciding not to re-hire plaintiff as an adjunct instructor for the next semester. Defendant filed a motion for summary judgment on both claims. In response to plaintiff's Local Rule 56.1(b)(3) response to defendant's statement of material facts and statement of additional facts, defendant filed an LR 56.1(a) response to plaintiff's statement of additional facts and an additional statement of additional facts. Based on these filings and attachments thereto, the following motions are now before the court: 1) defendant's motion for summary judgment; 2) plaintiff's motion to strike defendant's statement of additional facts; and, 3) plaintiff's motion to strike portions of the affidavit of Susan Solberg and the pleadings which cite thereto. For the reasons set forth below, the court grants plaintiff's motion to strike defendant's statement of additional facts, denies plaintiff's motion to strike portions of the affidavit of Susan Solberg and the pleadings which cite thereto, and denies defendant's motion for summary judgment.

MOTION TO STRIKE

In addition to filing its reply brief and response to plaintiff's statement of additional facts, defendant filed a statement of additional facts, which plaintiff has moved to strike because LR 56.1 does not authorize a movant to file a statement of additional facts with its reply brief. In response, defendant argues that such a filing is authorized under the plain language of LR 56.1(a) read in conjunction with subsection (b)(3). Neither party cites any supporting case law.

Local Rule 56.1 provides (emphasis added):

(a) Moving Party. With each motion for summary judgment filed pursuant to Fed.R.Civ.P. 56, the moving party shall serve and file:
(1) any affidavits and other materials referred to in Fed.R.Civ.P. 56(e);

(2) a supporting memorandum of law; and

(3) a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law, and that also includes:

(A) a description of the parties, and

(B) all facts supporting venue and jurisdiction in this Court.
The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the motion. If additional material facts are submitted by the opposing party pursuant to section (b), the moving party may submit a concise reply in the form prescribed in that section for a response. All material facts set forth in the statement filed pursuant to section (b)(3)(B) will be deemed admitted unless controverted by the statement of the moving party.
(b) Opposing Party. Each party opposing a motion filed pursuant to Fed.R.Civ.P. 56 shall serve and file;
(1) any opposing affidavits and other materials referred to in Fed.R.Civ.P. 56(e);

(2) a supporting memorandum of law; and

(3) a concise response to the movant's statement that shall contain:
(A) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and
(B) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.

The courts of this district have not adopted defendant's interpretation of the local rule as allowing the movant to respond to the non-movant's statement of additional facts by submitting both a reply as prescribed by LR 56.1(a)(3)(B) and a statement of additional facts as prescribed by LR 56.1(b)(3)(B). Instead, the courts have consistently interpreted the last sentence in LR 56.1(a) as allowing the movant to file only a reply to the non-movant's additional statement of facts in accordance with the procedures set forth in subsection LR 56.1(b)(3)(A), either admitting or denying each numbered paragraph and citing to the portions of the record that support such answers. See, McKay v. Town and Country Cadillac Inc., 2002 WL 226807 at *1 n. 1 (N.D.Ill. Feb. 13, 2002).

In McKay, noting that the summary judgment movant erroneously titled its response to the nonmovant's statement of additional facts as "Response to Plaintiff's Statement of Additional Facts Pursuant to Local Rule 56.1(b)(3)(B)," the court explained (at *1 n. 1.):

In fact, the defendant's response to the plaintiff's statement of additional facts is authorized by the first sentence of the final paragraph of Local rule 56.1(a) . . . . [This paragraph] means that pursuant to Local Rule 56.1(a), the defendant may submit a reply to the plaintiff's 56.1(b)(3)(B) statement using the form prescribed in 56.1(b)(3)(A).

In further support of this interpretation of the movant's rights and responsibilities under L.R. 56.1, courts have granted motions to strike a movants filings of additional facts in conjunction with the movant's reply brief, holding that such filings are not provided for under the rules and, therefore, must be disregarded unless the movant seeks leave to file additional facts. See, R.G.H. v. Abbott Laboratories, 1995 WL 68830 at *12 n. 1 (N.D.Ill. Feb. 16, 1995); Currier Builders, Inc. v. Town of York, 2002 WL 1146773 at *5 (D.Me. May 30, 2002). The court agrees with the interpretation of L.R. 56.1 discussed above; any other interpretation would result in endless duels of supposedly "uncontested" facts that would eviscerate the efficiencies sought to be achieved by the summary judgment process. Accordingly, plaintiff's motion to strike defendant's statement of additional facts is granted.

Addressing plaintiff's second motion to strike, defendant attached to its response to plaintiff's LR 56.1 statement of additional facts a three-page, fourteen paragraph affidavit of Dr. Susan Solberg ("Solberg"). Plaintiff moves to strike paragraphs 4(3), 4(4), 6, 7, 8, 12 and 14 of Solberg's affidavit, arguing that they directly conflict with her prior deposition testimony. Additionally, plaintiff moves the court to strike paragraphs 36 and 39 of defendant's response to plaintiff's LR 56.1 statement of additional facts and to strike paragraphs 3, 4, 5, 6, 10, 11, 12, 14 and 15 of defendant's statement of additional facts that cite to the offending paragraphs within Solberg's affidavit. As set forth in plaintiff's brief, where deposition testimony and affidavit statements are in conflict, the affidavit is to be disregarded unless there is a plausible explanation for the incongruity. Adusumilli v. City of Chicago, 164 F.3d 353, 360 (7th Cir. 1998). Affidavits that conflict with earlier deposition testimony are permissible in a limited number of circumstances, however, including where such affidavit testimony seeks "to clarify ambiguous or confusing deposition testimony." Deimer v. Cincinnati Sub-Zero Products, Inc., 990 F.2d 342, 346 n. 3 (7th Cir. 1993).

This court has thoroughly examined the deposition testimony cited by both parties. While the court notes that often in the deposition, certain questions and answers make the dates and timing of defendant's receipt of complaints against plaintiff hazy, the court finds that there are no direct inconsistencies between Solberg's affidavit and her deposition testimony. Accordingly, the motion is denied.

MEMORANDA REQUIREMENTS UNDER LR 56.1

The court notes that neither the moving defendant nor the plaintiff has bothered to include a statement of facts section in her or its legal memoranda, electing instead to leave it to the court to sift through the parties' LR 56.1 statements and responses to determine the background and proper sequence of events. The inadequacy of this approach is most evident in defendant's opening brief, which improperly assumes the court's familiarity with the facts it claims are undisputed and entitle it to judgment as a matter of law.

As the court has previously admonished, "The purpose of LR 56.1 statements are not intended to be substitutes for a statement of facts section of a memorandum of law. Rather, their purpose is to assist the court in identifying those material, uncontested facts in the record that entitle the movant to judgment." Duchossois Industries, Inc. v. Crawford & Co., 2001 WL 59031, at *1 (N.D. Ill. Jan. 19, 2001). Thus, statements of material facts and responses thereto are not, by their very nature, argumentative or instruments of persuasion. That is the function of the parties' briefs, the length of which is limited by LR 7.1 to 15 pages without leave of court.

These fundamental principles, that presumably are known by all lawyers practicing before this court including counsel herein, prohibit the type of irresponsible briefing that was submitted in connection with the instant motion. Omitting complete factual recitations in the parties' briefs constitutes an impermissible and transparent attempt to avoid the page limitations prescribed by LR 7.1. Worse yet, this practice (thankfully rare in this court's experience) causes an undue burden on the court and its staff to sift through mounds of paper to ferret out the material facts at issue. This the court will not do. "Judges are not like pigs, hunting for truffles buried in briefs." U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

Defendant's failure to fulfill its obligations as described above would, alone, justify denying its motion for summary judgment. The court has nevertheless reviewed the record, which reveals numerous contested issues of material ...


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