Zahourek Systems, Inc. v. Balanced Body University, LLC

Filing 167

ORDER denying without prejudice 152 Motion for Summary Judgment, 162 Motion to Strike Affidavit. Defendant may re-file its motion for summary judgment with a separate statement of undisputed material facts consistent with this Court's Civil Practice Standards and as instructed in the Court's Order. So Ordered by Judge Raymond P. Moore on 3/31/2017. (rmlc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore

Case No. 13-cv-01812-RM-CBS
ZAHOUREK SYSTEMS, INC.,
JON ZAHOUREK,
Plaintiffs,
v.
BALANCED BODY UNIVERSITY, LLC,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Pending before the Court is a second motion for summary judgment (“the motion for
summary judgment”) (ECF No. 151) and motion to strike (“the motion to strike”) (ECF No. 162)
affidavit of Jon Zahourek (“Zahourek”) filed by defendant Balanced Body University, LLC
(“defendant”).1 For the reasons discussed below, the motion for summary judgment and the motion
to strike are denied without prejudice for failure to comply with this Court’s Civil Practice
Standard IV.B(2)(a)(ii).
Civil Practice Standard IV.B(2)(a)(ii) provides that motions for summary judgment must
include a separate statement of undisputed material facts in support of the motion. The motion for
summary judgment currently pending has not been filed with a separate statement of undisputed
material facts. In fact, as far as the Court can discern, mention of facts, at least separately, in the
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This Order does not address the motion for reconsideration (ECF No. 148), which will be dealt
with separately.

motion for summary judgment is notably missing. Not that it would have corrected the deficiency,
but defendant did not even attempt to cite to the separate statement of undisputed material facts that
it submitted with respect to its first motion for summary judgment. And this is not a case where a
separate statement of facts is a procedural nicety; it is a necessity to scythe through the long grass
that represents plaintiffs’ imprecisely pled claims. Put another way, without the facts laid out in a
separate statement the Court is left, for example, with a mess of facts thrown together with legal
arguments related to whether purported contracts between the parties were breached. (See ECF
No. 151 at 4-5.)
The Court acknowledges that plaintiffs filed a separate statement of undisputed material facts
in support of their opposition to the motion for summary judgment (ECF No. 160-2), which, alone,
is another reason to deny the motion for summary judgment. Plaintiffs’ separate statement is only
half helpful, at best, however, because, in their opposition, plaintiffs only use it, at most, half of the
time. In fact, the opposition, is more notable for the lack of citations to the separate statement of
facts than it is to the separate statement. (See generally ECF No. 155.) The Court has a limit on
factual statements for a reason; it is so parties can present those facts that truly are material. If a
party could get around the limit simply by presenting facts in a motion for summary judgment
independent of the separate statement, there would be little point in having the separate statement.
Plaintiffs’ separate statement is a case in point.
The Court further notes that this veritable wild west of factual presentation leads to situations
such as the submission of Zahourek’s affidavit (ECF No. 155-16). At this juncture, the Court will
not rule on the merits of the motion to strike. There is much merit to its underlying message
however. The purpose of evidence for the Court, especially given the imprecise nature of the claims
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still to be considered, is to sharpen the nature of the claims and show, at the very least from
plaintiffs’ perspective, that there is a genuine issue of material fact. Zahourek’s affidavit may be
interspersed with some facts, such as that Zahourek is the founder of Zahourek Systems, Inc. (“ZSI”),
but it is to a great extent a monologue, full with long, rambling paragraphs that the Court finds
particularly unsuited to an affidavit where the evidence has not been subject to any form of
examination. If Mr. Zahourek wishes to present facts for purposes of supporting plaintiffs’
opposition to any future motion for summary judgment he may do so, but not in the form that he has
done so to date.
In light of the above, the Court rules as follows:
(1)

The motion for summary judgment (ECF No. 151, 152) is DENIED WITHOUT
PREJUDICE;

(2)

The motion to strike (ECF No. 162) is DENIED WITHOUT PREJUDICE pending
filing (if any) of a renewed motion for summary judgment; and

(3)

Defendant may re-file its motion for summary judgment with a separate statement of
undisputed material facts consistent with this Court’s Civil Practice Standards and
as instructed below.

Although defendant may re-file its motion for summary judgment, defendant may not alter
the legal arguments therein; those arguments have been made. All the Court is looking for is for the
facts to be presented in a coherent and consistent manner. As such, in re-filing the motion for
summary judgment, all that defendant may do is submit a separate statement of undisputed material
facts consistent with this Court’s Civil Practice Standards. In addition, when citing to evidence in
the motion for summary judgment, defendant must cite to the relevant paragraph(s) of the separate
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statement.2 The Court will not consider any arguments that cite to evidence outside of the separate
statement. Moreover, to the extent that it is not clear, all evidentiary arguments must be supported
by evidence.
The same principles apply to plaintiffs. In other words, should defendant re-file its motion
for summary judgment, plaintiffs may re-file its response in opposition, but they may not alter the
legal arguments therein. Plaintiffs may, though, file a new response statement of undisputed material
facts; one that responds to the separate statement filed by defendant (if any). As with defendant,
when citing to evidence in the response, plaintiffs must cite to the relevant paragraph(s) of their
separate statement. The Court will not consider any arguments that cite to evidence outside of the
separate statement. And, again, to the extent that it is not clear, all evidentiary arguments must be
supported by evidence.
For both parties, the maximum number of separately numbered factual statements shall be
eighty (80). The parties should not contemplate asking for more, nor should they contemplate trying
to group multiple facts into one statement. In addition, to the extent any fact is not included in a
factual statement contained within a separate statement of undisputed material facts, that fact will
not be considered by the Court.
Finally, deadlines. Because the Court only requires facts to be presented anew, the Court
does not expect this endeavor to take long. As such, the Court sets the following expedited briefing

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Consistent with this Court’s Civil Practice Standards, the pertinent paragraph of the separate
statement may then cite to the specific part of the record where the evidence may actually be found. For
example, the motion for summary judgment (or response in opposition) will cite to “Statement of Facts
¶ 1,” and statement of fact paragraph 1 will cite to “ECF No. 80-20 at 24:2-8,” which, for example, might
be a deposition transcript. To be clear, all of these are examples, and the parties may use whatever
abbreviation for “statement of facts” that they so choose.

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schedule. To the extent defendant wishes to re-file its motion for summary judgment, it must do so
on or before April 17, 2017. Plaintiffs must then file their response in opposition on or before
May 1, 2017. Defendant must file its reply (which also must follow the principles laid out supra
with respect to not altering legal arguments and presentation of factual arguments and evidence) on
or before May 8, 2017.

SO ORDERED.
DATED this 31st day of March, 2017.

BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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