IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
May 12, 2009
ELIZABETH PINEGAR, PLAINTIFF
ERIC K. SHINSEKI, DEFENDANT
The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Presently before the court is plaintiff's motion (Doc. 48) to vacate the May 6, 2009 order of court (Doc. 45) ("the May 6 order"), which compelled plaintiff's counsel*fn1 to cite record evidence in their papers opposing defendant's motion for summary judgment. The motion will be denied.
Prior to issuing the May 6 order, the court conducted a review of the record, which (including the parties' briefs) exceeds 1000 pages. Upon examining plaintiff's responsive statement of material facts (Doc. 40), the court discovered that counsel had neglected to cite record support for several key factual assertions pertinent to plaintiff's case. Such citations are required by Local Rule 56.1, which provides, in pertinent part that "[s]tatements of material facts . . . in opposition to a motion shall include references to the parts of the record that support the statements."
L.R. 56.1. The purpose of this rule is obvious: it enables the court to identify contested facts expeditiously and prevents factual disputes from becoming obscured by a lengthy record. The May 6 order granted plaintiff five days-until noon on May 11, 2009-to rectify the inadequacies in the responsive fact statement. Plaintiff's counsel failed to do so.
Instead, they filed an untimely motion beseeching the court to vacate the May 6 order. One of plaintiff's attorneys represents that he failed to supply record citations during the original briefing period because he "ran out of time."*fn2 (Doc. 48 ¶ 8(1)).*fn3 He arranged for his client attest to the averments set forth in the responsive fact statement and presumed that the court would accept this verified statement*fn4 as "evidence" for purposes of summary judgment. (Id. ¶ 7). The motion to vacate further requests that the court consider the irregular fact statement because "Defendant never filed a Motion to Strike Plaintiff's Sworn Response nor made any other objection to it." (Id. ¶ 8(2)). Strikingly absent from the motion, however, is a request for additional time within which to comply with Local Rule 56.1. Indeed, the motion contains no representation that counsel has made any attempt to comply with the May 6 order.
The instant motion is a transparent attempt to circumvent counsel's obligations under Local Rule 56.1.*fn5 It is the obligation of plaintiff's attorneys to scour the record thoroughly, to identify facts in plaintiff's favor, and to draw the court's attention to those facts through citation to the record. Plaintiff's counsel cannot fulfill these responsibilities by submitting a generic (and unsworn) affidavit and imploring the court to adopt self-serving asseverations.*fn6*fn7 Plaintiff's evidentiary submission totals 666 pages*fn8 in length. (See Doc. 41.) It is neither unreasonable nor inequitable to expect that counsel will identify the source of factual disputes in a record of this length. See Doeblers' Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006) (quoting Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002)). Plaintiff's motion to vacate (Doc. 48) will be denied, and counsel will be required to file a responsive statement of material facts in accordance with Local Rule 56.1.
An appropriate order follows.
AND NOW, this 12th day of May, 2009, upon consideration of plaintiff's motion to vacate (Doc. 48) the order of court (Doc. 45) dated May 6, 2009, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. The motion (Doc. 48) is DENIED.
2. The time within which plaintiff's counsel may comply with the provisions of Paragraph 1 of the order (Doc. 45) is EXTENDED until 12:00 noon on Monday, May 18, 2009. In the absence of a timely filing, all improper denials identified in the order of court (Doc. 45) shall be deemed admitted at 12:00:01 p.m.
3. No extension of the time period set forth in Paragraph 2 shall be granted absent a showing of extraordinary circumstances made in advance of the deadline.*fn9
4. All provisions of the order of court (Doc. 45) shall remain in effect except as modified herein.
CHRISTOPHER C. CONNER United States District Judge