Partners Biomedical Solutions, LLC et al v. Saltsman et al
ORDER GRANTING DEFENDANTS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL AND AMENDED STATEMENT OF MATERIAL FACTS IN OPPOSITION TO PLAINTIFFS AMENDED STATEMENT OF MATERIAL FACTS [DE 294]. Defendants shall file the proposed amended document as a separate docket entry for clarity of the record. Signed by Magistrate Judge William Matthewman on 4/27/2021. See attached document for full details. (kza)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Civil No.: 19-cv-81316-MATTHEWMAN
PARTNERS BIOMEDICAL SOLUTIONS, LLC,
a Florida limited liability company, et al.,
Apr 27, 2021
EUGENE SALTSMAN, et al.,
West Palm Beach
ORDER GRANTING DEFENDANTS’ MOTION FOR LEAVE TO FILE
SUPPLEMENTAL AND AMENDED STATEMENT OF MATERIAL FACTS IN
OPPOSITION TO PLAINTIFFS’ AMENDED STATEMENT OF
MATERIAL FACTS [DE 294]
THIS CAUSE is before the Court upon the Motion by Defendants, Eugene Saltsman, Evan
Saltsman, Alfa Two Holdings, LLC, Matrix Instrument Services, Inc. and Benjamin Chevere
(collectively, “Defendants”), for Leave to File a Supplemental and Amended Statement of Material
Facts in Opposition to Plaintiffs’ Amended Statement of Material Facts (“Motion”) [DE 294].
Plaintiffs, Partners Biomedical Solutions, LLC and MAC 15, LLC (“Plaintiffs”), filed a response
[DE 296], and Defendants filed a reply [DE 298]. The matter is now ripe for review. The Court
has carefully considered the filings and attachments thereto, as well as the entire docket in this
MOTION, RESPONSE, AND REPLY
In the Motion, Defendants seek leave to amend Opponents’ Statement of Material Facts in
Opposition to Motion for Partial Summary Judgment. [DE 294, p. 2]. They contend that the
majority of the statements of material facts and additional facts they filed “contained appropriate
citations to the record and were in strict compliance with Local Rule 56.1.” Id. Defendants claim
that, out of a total of 211 facts, only 20 did not have citations to the record. Id. They recognize that
the purpose of Local Rule 56.1 “is to require the parties to make specific references to record
evidence in order to prevent the Court from being forced to avoid combing through the record.”
Id. Therefore, Defendants request leave to amend their statement of material facts. Id.
Defendants argue that Local Rule 56.1(d) permits the amendment because the rule states:
“[i]f a party files and serves any Statement of Material Fact that does not comply with this rule,
then the Court may . . . require immediate compliance.” Id. at 3; S.D. Fla. L.R. 56.1(d).
Additionally, Defendants cite to Fed. R. Civ. P. 56(e), which states that “[i]f a party fails to
properly support an assertion of fact or fails to properly address another party's assertion of fact as
required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the
fact.” Id. at 2. Furthermore, Defendants argue this is not a case where they completely neglected
to support their statements. Id. at 3.
In response, Plaintiffs contend that the Motion should be denied due to Defendants’ failure
to comply with Local Rule 56.1 and for failure to show good cause or excusable neglect. [DE 296,
p. 2]. Plaintiffs argue that permitting the amendment would give Defendants “another bite at the
apple” after Plaintiffs pointed out their failure to cite to the record. Id. at 3. Plaintiffs also rely on
Local Rule 56.1(c) and argue that any statement not properly disputed may be deemed admitted if
“(i) the Court finds that the material fact is supported by properly cited record evidence; and (ii)
any exception under Fed. R. Civ. P. 56 does not apply.” Id.; S.D. Fla. L.R. 56.1(c). Plaintiffs argue
that, without providing any basis for a finding of good cause or excusable neglect, Defendants “are
avoiding the finality of the briefing allowed under Rule 56 and L.R. 56.1 and curing patent defects
after-the-fact.” Id. at 4.
Plaintiffs further assert that the Motion should be denied for Defendants’ failure to comply
with Local Rule 7.1(a)(3). [DE 296, p. 4]. They contend that Defendants were specifically required
to comply with this rule by the Amended Pretrial Order [DE 233]. Id. at p. 5. According to
Plaintiffs, Defendants failed to confer or make reasonable efforts to confer with Plaintiffs’ counsel
prior to the filing of this Motion and failed to file a certificate of conferral at the end of the Motion.
Id. Because of this, Plaintiffs argue this Court should deny the Motion and impose sanctions,
consisting of striking Defendants’ Motion or denying it, and find that Plaintiffs are entitled to
reasonable attorney’s fees and costs associated with preparing their response. Id.
In their reply, Defendants argue Plaintiffs cite to an improper federal rule to support their
argument that Defendants failed to prove good cause or excusable neglect. [DE 298, p. 2].
Specifically, they contend that Plaintiffs’ reliance on Fed. R. Civ. P. 6(b)(1)(B) is misplaced
because it relates to filing a motion for extension of time and does not apply to a motion for leave
to amend. Id. Additionally, Defendants acknowledge their error in failing to make reasonable
efforts to meet and confer and failing to include a certificate of conferral at the end of the Motion.
Id. Defendants point out that, before Plaintiffs filed their Motion to Strike [DE 292], Plaintiffs’
counsel emailed Defendants at 4:42 pm, only eighteen minutes before close of business, and filed
the Motion to Strike that same evening at 9:29 pm. Id. Defendants also reason that Plaintiffs would
have never agreed to all of the relief sought in the Motion. Id. In any event, Defendants claim that
their failure to comply with L.R. 7.1 did not cause any prejudice to Plaintiffs. Id. Additionally,
they explain how the case relied on by Plaintiffs, United States v. Marder, No. 13-cv-24503, 2016
WL 2897407, at *7 (S.D. Fla. May 18, 2016), is distinguishable. Id. at pp. 3-4.
Finally, Defendants cite to case law where the court declined to grant a motion to strike for
failure to provide a 7.1(a)(3) certification and where the court granted motions to strike only after
multiple violations occurred. [DE 289, pp. 4–5]. Defendants further argue that L.R. 7.1(a)(3) does
not require a motion to be “denied due to an inadvertent failure to provide a certification. . . . Rule
7.1(a)(3) provides that a violation of it may be cause to grant or deny a motion. There is no question
that the Court has discretion with regard to a Rule 7.1(a)(3) violation.” Id. at pp. 5–6. Accordingly,
Defendants maintain that “this Court should exercise its discretion and determine Plaintiffs’
motion for partial summary judgment on its merits.” Id. at 6.
The Court has carefully considered the Motion, response, and reply. As an initial matter,
the parties in this case are required to comply with the pre-filing requirements of Local Rule
7.1(a)(3). The relevant portion of the rule states that “the movant shall confer . . . or make
reasonable effort to confer . . . with all parties or non-parties who may be affected by the relief
sought in the motion in a good faith effort to resolve by agreement the issues to be raised in the
motion.” S.D. Fla. L.R. 7.1(a)(3). Thus, Defendant’s counsel was required to certify at the end of
the Motion that counsel had conferred or made reasonable efforts to confer with all affected parties
or non-parties. Id. However, while “[t]he Court takes the pre-filing requirements of Rule 7.1(a)(3)
seriously . . . the impact of a party’s failure to comply with Rule 7.1(a)(3) is ultimately left with
the discretion of the Court.” Nanotech Ent., Inc. v. R&T Sports Mktg., Inc., No. 14-61608-CIV,
2014 WL 12611203, at *3 (S.D. Fla. Sept. 24, 2014). While this Court requires parties to comply
with L.R. 7.1(a)(3), the inadvertent failure of Defendants to do so does not warrant a denial of the
Motion or sanctions against Defendants given the specific facts before the Court. Defendants’
failure to comply with S.D. Fla. L.R. 7.1(a)(3) did not prejudice Plaintiffs, as they responded to
the Motion the day after it was filed. Also, this is not a case where Defendants have made numerous
procedural missteps or multiple violations under the Local and Federal Rules. Under these
circumstances, the Court finds that Defendants’ failure to confer with counsel or certify this at the
end the Motion was an inadvertent error that does not justify the denial of this Motion.
Next, “Federal Rule of Civil Procedure 56 and Local Rule 56.1 set forth the procedures for
pleading (and responding to) a Motion for Summary Judgment.” Metro Worldwide, LLC v. ZYP,
LLC, No. 19-cv-81502, 2021 WL 1053389, at *2 (S.D. Fla. Jan. 22, 2021), report and
recommendation adopted in part, rejected in part, No. 19-CV-81502, 2021 WL 1015960 (S.D.
Fla. Mar. 17, 2021). Rule 56(e) states:
If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may: (1) give
an opportunity to properly support or address the fact; (2) consider the fact
undisputed for purposes of the motion; (3) grant summary judgment if the motion
and supporting materials — including the facts considered undisputed — show that
the movant is entitled to it; or (4) issue any other appropriate order.
Fed. R. Civ. P. 56(e).
Furthermore, Local Rule 56.1 describes what the court may do when a party fails
to controvert an undisputed fact and also describes the consequences of non-compliance.
See S.D. Fla. L.R. 56.1(c), (d). Under L.R. 56.1(c):
All material facts in any party’s Statement of Material Facts may be deemed
admitted unless controverted by the other party’s Statement of Material Facts,
provided that: (i) the Court finds that the material fact at issue is supported by
properly cited record evidence; and (ii) any exception under Fed. R. Civ. P. 56 does
S.D. Fla. L.R. 56.1(c).
Local Rule 56.1 (d) states that, if a party “files and serves any Statement of Material
Facts that does not comply with this rule, then the Court may strike the Statement, require
immediate compliance, grant relief to any opposing party for any prejudice arising from a
non-compliant statement or response, or enter other sanctions that the Court deems
appropriate.” The Court finds that the Motion is due to be granted.
Defendants have acknowledged their error and have made efforts to quickly comply
with Local Rule 56.1 by filing this Motion. Furthermore, as Defendants have explained,
this is not a case where counsel had a complete disregard for the rules and failed to cite to
the record at all. Here, only 20 statements of fact required citations to the record.
Additionally, as specified in S.D. Fla. L.R. 56.1, an exception under Fed. R. Civ. P. 56
applies. Rule 56(e) provides this Court with discretion to give Defendants an opportunity
to properly support or address a fact that was previously unsupported. Fed. R. Civ. P.
56(e)(1). Providing Defendants with the opportunity to amend and supplement their
statement of material facts will not delay this case and will allow this Court to decide the
cross motions for summary judgment on the merits.
In light of the foregoing, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion for Leave to File Supplemental and Amended Statement of
Material Facts in Opposition to Plaintiffs Amended Statement of Material Facts [DE
294] is GRANTED.
2. Defendants shall file the proposed amended document as a separate docket entry for
clarity of the record.
DONE and ORDERED in chambers at West Palm Beach, Palm Beach County, Florida,
this 27th day of April 2021.
United States Magistrate Judge
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