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Nesselrotte v. Allegheny Energy

January 30, 2009

TONI M. NESSELROTTE, PLAINTIFF,
v.
ALLEGHENY ENERGY, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM ORDER

Before this Court is Plaintiff's Motion for Leave to File Response to Defendants' Statement of Undisputed Facts in Support of Their Motion for Partial Summary Judgment on After-Acquired Evidence, Affirmative Defense, and Liability as to Counterclaims. (Docket No. 220). After reviewing the submissions of the parties, and upon consideration of the testimony and argument heard during the hearing held on this matter on December 19, 2008, the Court hereby GRANTS Plaintiff's motion.

I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

A. Procedural History*fn1

On March 4, 2008, Defendants filed a Motion for Partial Summary Judgment on After-Acquired Evidence, Affirmative Defense, and Liability as to Counterclaims ("Motion for Partial Summary Judgment"). (Docket No. 121). In accordance with the the Local Rules of the United States District Court for the Western District of Pennsylvania ("Local Rules"), said motion was accompanied by a brief in support (Docket No. 122), a concise statement of undisputed material facts (Docket No. 123), and an appendix (Docket No. 124). That same day, Defendants also filed a separate Motion for Summary Judgment on Plaintiff's claims ("Motion for Summary Judgment"). (Docket No. 126). The Motion for Summary Judgment was also accompanied by a brief in support (Docket No. 127), a concise statement of undisputed material facts (Docket No. 128), and an appendix (Docket No. 129).

Generally, Plaintiff would have had thirty (30) days to respond to the motions for summary judgment by filing a responsive concise statement of material facts, a memorandum in opposition, and any appendix. W.D. Pa. L.R. 56.1(C)(2008). However, prior to filing the motions for summary judgment, Defendants filed a Motion for Monetary Sanctions and for Disqualification of Plaintiff's Counsel ("Motion for Sanctions and Disqualification"). (Docket No. 115). Accordingly, the Court held in abeyance Plaintiff's responses to the motions for summary judgment until its ruling on the Motion for Sanctions and Disqualification. (See Docket No. 141).

In a Memorandum Opinion filed July 23, 2008, this Court denied Defendants' Motion for Sanctions and Disqualification. (Docket No. 195). The Court then ordered Defendants to supplement their briefs in support of the pending motions for summary judgment by August 22, 2008. In turn, Plaintiff was ordered to respond to the respective motions on or before September 22, 2008. (Docket No. 196). The Defendants then filed a consent motion to extend both parties' filing dates. The Court granted said motion and ordered Defendants to supplement their briefs by August 29, 2008, and further ordered Plaintiff to file her respective responses by September 29, 2008.

(Docket No. 198). Thereafter, Plaintiff filed and the Court granted a consent motion to extend the time for Plaintiff to respond to both summary judgment motions until October 7, 2008. (Docket No. 201).

Plaintiff responded to the motions by filing briefs in opposition to each on October 7, 2008. (Docket Nos. 205 & 206). Contemporaneously with those briefs, Plaintiff filed one responsive concise statement of material facts (See Docket No. 209). The responsive concise statement only addresses those facts set forth in Defendants' Statement of Undisputed Material Facts filed in connection with the Motion for Summary Judgment at Docket No. 128 (hereinafter "SUMF-128"); it does not address the Defendants' Statement of Undisputed Material Facts filed in connection with the Motion for Partial Summary Judgment at Docket No. 123 (hereinafter "SUMF-123").

Defendants filed reply briefs in support of both motions on November 5, 2008 (Docket Nos. 213 and 214), along with a reply in support of SUMF-128, in which the Defendants responded to counterstatements of material fact set forth in Plaintiff's response (Docket No. 215). In their reply brief in support of the Motion for Partial Summary Judgment, Defendant argued that the Court should deem admitted the material facts set forth in SUMF-123, as Plaintiff had failed to respond to the facts contained therein in violation of Rule 56.1(C) of the Local Rules (Docket No. 214 at 3).

The instant motion arises out of Plaintiff's failure to submit a timely responsive concise statement to SUMF-123 on October 7, 2008. Failing to respond to a party's concise statement of material facts is a violation Rule 56.1(C) of the Local Rules of the United States District Court for the Western District of Pennsylvania. ("L.R. 56.1(C)"),*fn2 which Defendants noted in their reply brief in support of their Motion for Partial Summary Judgment (See Docket No. 214 at 1-3). As Plaintiff has failed to comply with the Local Rules, Defendants request that the statements contained in SUMF-123 be deemed admitted pursuant to Local Rule 56.1(E) ("L.R. 56.1(E)").*fn3

In response, Counsel for Plaintiff claim that they inadvertently failed to file a response to SUMF-123, and, upon reviewing the Defendants' reply brief, immediately contacted counsel for the Defendants to request that Defendants consent to Plaintiff's request to file a response to SUMF-123. (Docket No. 220 at 3). Defendants denied said request, and, as a result, Plaintiff filed the instant motion. (Docket No. 220). Defendants filed their response to the instant motion on November 21, 2008, in which they indicated their opposition to Plaintiff's motion for leave to file a response to SUMF-123. (Docket No. 223). Thereafter, on December 5, 2008, Plaintiff filed a brief in support of the instant motion. (Docket No. 230). The Court held a hearing and heard argument on the motion on December 19, 2008, during which time the Court heard the testimony of Plaintiff, Toni M. Nesselrotte, Esquire, as well as her counsel, Cami Davis, Esquire and James Carroll, Esquire.*fn4

B. Representations Made by Plaintiff in the Pending Motion

After reviewing the parties' submissions regarding the instant motion, the Court had concerns about the veracity of Plaintiff's stated reasons for not filing a response to SUMF-123. Specifically, the Court was troubled by Plaintiff's counsel's assertion that he "mistakenly proceeded under the assumption that, as in most cases, Defendants had filed only one Statement of Material Facts in Support of their Motions for Summary Judgment." (Docket No. 220 ¶5; see also Hearing Trans. 12/19/08 at 57). This statement was especially troubling to the Court because it appeared to be in conflict with the fact that Plaintiff cited to SUMF-123 in her response to the Motion for Partial Summary Judgment. (See Docket No. 206 at 5). Specifically, in her brief in opposition to Defendants' Motion for Partial Summary Judgment, Plaintiff argued:

[t]hat the Defendants' argument regarding the Employee Confidentiality Agreement is based, in large part, on a factual misstatement is easily established. For example, the Defendants in its Statement of Undisputed Material Facts, at Paragraph 4, state that the Employee Confidentiality Agreement defines Plaintiff's obligation regarding "privileged" information. (Docket No. 206 at 5). The Court read this as a reference to SUMF-123, the statement of facts filed in conjunction with the Motion for Partial Summary Judgment, which states at paragraph four:

On April 7, 2000, Plaintiff signed a confidentiality agreement that defined her obligations and responsibilities with regard to Allegheny's proprietary, confidential, and/or privileged information. (Current Employees Employee Confidentiality Agreement ("Confidentiality Agreement"), a copy of which is attached to the Appendix as Ex. D; Plaintiff's Answer to Amended Counterclaims (DE101) ¶ 19 ("It is admitted that while employed by Allegheny Energy, Plaintiff executed an Employee Confidentiality Agreement . . . .").) (Docket No. 123 at ¶ 4 ).

In contrast, paragraph four of SUMF-128, the statement of facts filed in conjunction with the Motion for Summary Judgment, which counsel for Plaintiff has represented is the only statement of which they were aware, states:

In July 2003, Mr. Evanson hired Mr. Hertzog - then just shy of his 59th birthday - to assist him with Allegheny's restructuring. (Defendants Allegheny Energy, Inc. and Allegheny Service Corporation's Supplement Responses to Plaintiff's First Set of Interrogatories ("Allegheny's Interrogatory Responses"), a copy of which is attached to the Appendix as Ex. C, at No 18; Hertzog Dep. At 24, 34-35.) (Docket No. 128 at ¶ 4 ).

Given the very different subject matter of paragraph four of SUMF-123 and paragraph four of SUMF-128, in this Court's estimation, Plaintiff could only be referring to SUMF-123. Thus, the Court had continuing concerns about Plaintiff's counsel's representations that they were not aware that a separate statement of facts had been filed at Docket No. 123. (See Docket No. 230 at 1-2).

In addition, Defendants alleged that Plaintiff's claim of excusable neglect was made in bad faith. (Docket No. 223 at 2). In order to address these issues, the Court scheduled a hearing for December 19, 2008 to receive evidence and hear argument on the motion. (See Docket No. 231).

C. December 19, 2008 Hearing

At the December 19, 2008 hearing, the Court heard testimony from the Plaintiff, Ms. Nesselrotte,*fn5 as well as her counsel, Ms. Davis and Mr. Carroll. Ms. Nesselrotte testified that she does not receive filings through the electronic filing system ("CM/ECF") used in this district. (Hearing Trans. 12/19/08 at 22). Rather, she relies on her counsel to forward to her any documents filed in this case. (Id.) She further testified that when she was forwarded the documents related to Defendants' motions for summary judgment, she did not receive SUMF-123. (Id. at 23). Ms. Nesselrotte also testified that the first time she became aware of the fact that there were two statements of facts was when she read Defendants' reply brief, which was filed on November 5, 2008. (Id. at 26). Ms. Nesselrotte's testimony was supported by the testimony of her counsel, Ms. Davis. (See Id. at 36). In fact, Ms. Davis testified that a review of her firm's records indicated that a copy of SUMF-123 had not been forwarded to Ms. Nesselrotte. (Id. at 36).

Ms. Davis testified that she, too, was unaware that two separate concise statements of material facts had been filed with Defendants' motions for summary judgment. (Id. at 41). In describing the division of labor between her and her co-counsel, Mr. Carroll, she testified that she was responsible for responding to the Motion for Summary Judgment filed at Docket No. 126, and that Mr. Carroll was responsible for responding to the Motion for Partial Summary Judgment filed at 121. (Id. at 37-38). Ms. Davis was also responsible for responding to SUMF-128, and testified that she believed that it was the only statement of facts that had been filed. (Id. at 39). She conceded that she and Mr. Carroll each received a copy of SUMF-123 via email through CM/ECF when the document was electronically filed on March 4, 2008. (Id. at 42-43). However, she also testified that she did not have actual knowledge of SUMF-123 because, as per the practice ...


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