Securities and Exchange Commission v. Wall Street Communications, Inc. et al

Filing 101

ORDER: Defendant Donald R. McKelvey's Motion to Order Uncontroverted Facts Established at Trial 93 is DENIED. Signed by Judge James S. Moody, Jr on 9/23/2010. (LN)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. WALL STREET COMMUNICATIONS, INC., et al., Defendants. _____________________________________/ ORDER THIS CAUSE comes before the Court upon Defendant Donald R. McKelvey's Motion to Order Uncontroverted Facts Established at Trial (Dkt. 93) and Plaintiff's Response in Opposition (Dkt. 99). The Court, having reviewed the motion, response, and being otherwise advised in the premises, concludes that the motion should be denied. Defendant's motion relies on Fed. R. Civ. P. 56(d) to request the Court to order that certain facts are not genuinely at issue. Fed. R. Civ. P. 56(d) states: (d) Case Not Fully Adjudicated on the Motion. (1) Establishing Facts. If summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue. The court should so determine by examining the pleadings and evidence before it and by interrogating the attorneys. It should then issue an order specifying what facts--including items of damages or other relief--are not genuinely at issue. The facts so specified must be treated as established in the action. Case No. 8:09-cv-1046-T-30TGW

Defendant cites to Rule 56(d) in his motion, but does explain how his motion is appropriate at this stage, after the Court already issued an Order denying the parties' motions for summary judgment (Dkt. 85). Federal case law makes it clear that Rule 56(d) does not authorize the initiation of motions, like the instant motion, the sole object of which is to adjudicate issues of fact which are not dispositive of any claim or part thereof. See Warner v. U.S., 698 F. Supp. 877, 878 -79 (S.D. Fla.1988) (citing to numerous federal cases on this issue); see also Bacelli v. MFP, Inc., 2010 WL 2985699, at *9 (M.D. Fla. 2010) (noting that motions seeking adjudication of issues that do not resolve a party's liability on a claim are disfavored and arguably not even permitted under Rule 56). In SFM Corp. v. Sundstrand Corp., 102 F.R.D. 555, 558 -59 (D.C. Ill. 1984), the Court stated: Rule 56(d)'s purpose, according to cases cited in 10A Wright, Miller & Kane, Federal Practice and Procedure § 2737, at 454 n. 1, 458-59 (2d ed. 1983) is to salvage constructive results of the court's denial of a properly-brought but unsuccessful summary judgment motion. Rule 56(d) procedure does not stand alone, but is "ancillary to a motion for summary judgment." Id. at 457. ..................................................... Indeed even a quick review of just this Court's published opinions in this area (a simple chore in these days of LEXIS and WESTLAW) would have disclosed to SFM that Rule 56(d) is not to be viewed as a device to obtain adjudications of non-dispositive fact issues. . . .Use of Rule 56(d) for such purposes would draft every district court into performing the task, properly the responsibility of the litigants under this Court's (and every other court's) standard form of pretrial order, of narrowing the issues for trial. See 10A Wright, Miller & Kane § 2737, at 460-61. Any such result would be unacceptable, because it would make every case on this Court's calendar fair game for such a "summary judgment" motion before the case goes to trial.
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Judicial calendars are far too large to permit so onerous and impermissible a use of judicial resources. As stated in SFM, in this case, Defendant's motion, which contains a lengthy list of alleged "uncontroverted facts," is an inappropriate device to obtain adjudications of nondispositive fact issues. And the Court already issued an Order on the parties' motions for summary judgment and concluded that the record was "rife" with material disputed facts. (Dkt. 85). Thus, Defendant's motion must be denied. It is therefore ORDERED AND ADJUDGED that Defendant Donald R. McKelvey's Motion to Order Uncontroverted Facts Established at Trial (Dkt. 93) is hereby DENIED. DONE and ORDERED in Tampa, Florida on September 23, 2010.

Copies furnished to: Counsel/Parties of Record
S:\Even\2009\09-cv-1046.mtorderuncontrovertedfacts.frm

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