Banks et al v. McHugh et al

Filing 103

ORDER STRIKING PLAINTIFF ALISON BEAVERS' POINT-BY-POINT RESPONSE TO DEFENDANT'S STATEMENT IN SUPPORT OF SUMMARY JUDGMENT, HER REBUTTAL TO CONCISE STATEMENT OF MATERIAL FACTS, AND THE EXHIBITS REFERRED TO IN THE DECLARATION OF ANTHONY P.X. B OTHWELL re 95 Memorandum in Opposition to Motion, filed by Alison Beavers . Signed by JUDGE LESLIE E. KOBAYASHI on 06/19/2014. -- the Court HEREBY STRIKES the Point-By-Point Respons e, the Rebuttal CSOF, and the Beavers Exhibits. [Dkt. nos. [95-1], [95-3] to [95-17].] The Court will not consider any of the facts put forth in these documents in its pending order on the Motion, and FINDS that the material facts set forth in D efendant's CSOF are DEEMED admitted. See Local Rule LR56.1. Further, the Court will not consider the facts in the Beavers CSOF Section, insofar as they rely on the Beavers Exhibits, which have been stricken. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiffs,
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vs.
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JOHN McHUGH, SECRETARY
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DEPARTMENT OF THE ARMY;
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LEON E. PANETTA, SECRETARY,
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DEPARTMENT OF DEFENSE,
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Defendants.
_____________________________ )
KELVIN BANKS, ALISON BEAVERS,
DAVID “FLYING WITH EAGLES”
BEVETT, CHARLES W. DICKEY,
MARCEAU DOZE-GUILLORY, EDWARD
MANIGAULT, TAMANEE MUNDY,
WANDA THOMAS, SYLVIA VEGA,
and CHINY WANG,

CIVIL NO. 11-00798 LEK-KSC

ORDER STRIKING PLAINTIFF ALISON BEAVERS’ POINT-BY-POINT RESPONSE
TO DEFENDANT’S STATEMENT IN SUPPORT OF SUMMARY JUDGMENT, HER
REBUTTAL TO CONCISE STATEMENT OF MATERIAL FACTS, AND THE EXHIBITS
REFERRED TO IN THE DECLARATION OF ANTHONY P.X. BOTHWELL
On March 13, 2014, Defendant Secretary of the Army
John M. McHugh (“Defendant”) filed his Motion for Dismissal or
Summary Judgment on Plaintiff Alison Beavers’ Claims (“Motion”).
[Dkt. no. 58.]

He also filed his Concise Statement in Support of

Defendant’s Motion for Dismissal or Summary Judgment of Plaintiff
Alison Beavers’ Claim (“Defendant’s CSOF”) with the Declaration
of Annette Perry (“Perry Declaration”); Exhibits 1-26, attached
to the Perry Declaration; and Certification of Counsel, attesting
that Defendant’s CSOF complied with the requirement that it be
under 1500 words.

[Dkt. nos. 59.]

On May 29, 2014, Plaintiff

Beavers (“Beavers”) filed her memorandum in opposition.

[Dkt.

no. 95.]
To properly dispute a moving party’s statement of
facts, the non-moving party must “file and serve with his or her
opposing papers a separate document containing a single concise
statement that . . . disputes the facts set forth in the moving
party’s concise statement[.]”

Local Rules of Practice for the

United States District Court for the District of Hawaii (“Local
Rules”) LR56.1(b).
As with the original concise statement, each fact must
“contain a citation to a particular affidavit, deposition, or
other document that supports the party’s interpretation of the
material fact[.]”

Local Rule LR56.1(c).

Failure to file and

serve such a document results in admission of the moving party’s
statement in its entirety.

See Local Rule LR56.1(g) (“For

purposes of a motion for summary judgment, material facts set
forth in the moving party’s concise statement will be deemed
admitted unless controverted by a separate concise statement of
the opposing party.” (emphasis added)).

Further, to raise its

own disputed facts, a non-moving party must include in its
separate concise statement “all material facts as to which it is
contended there exists a genuine issue necessary to be
litigated.”

Local Rule LR56.1(b).

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With her memorandum in opposition, Beavers did not
offer her own separate concise statement of facts.

Instead, she

included a Point-By-Point Response to Defendant’s Statement in
Support of Summary Judgment Motion (“Point-By-Point Response”)
and a Rebuttal to Concise Statement of Material Facts (“Rebuttal
CSOF”).

[Dkt. nos. 95-1, 95-3.]

Both documents are enumerated

and appear to either admit or deny each of the facts in
Defendant’s CSOF.

However, even in purportedly denying

Defendant’s CSOF, they do not cite to any “particular affidavit,
deposition, or other document.”

See Local Rule LR56.1(c).

They

simply give Beavers’s own interpretation of Defendant’s facts,
without citation.
Beavers also includes in her memorandum in opposition a
section titled, “Plaintiff’s Concise Statement of Material Facts”
(“Beavers CSOF Section”).

[Mem. in Opp. at 2-8.]

This section

cites to exhibits attached to a declaration by her counsel
(“Beavers Exhibits”).

[Id., Decl. of Anthony P.X. Bothwell

(“Bothwell Decl.”) (dkt. no. 95-2).]

It is not clear, however,

what exactly these facts respond to or their purported effect on
Defendant’s CSOF.
Since Beavers has failed to file a separate, concise
statement with citations to evidence, as required by Local Rule
56.1(b) and (c), and has failed to certify that the Point-ByPoint Response, the Rebuttal CSOF, and the Beavers CSOF Section,

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individually or together, are under the maximum 1500 words, the
Court HEREBY STRIKES the Point-By-Point Response, the Rebuttal
CSOF, and the Beavers Exhibits.

[Dkt. nos. 95-1, 95-3 to 95-17.]

The Court will not consider any of the facts put forth in these
documents in its pending order on the Motion, and FINDS that the
material facts set forth in Defendant’s CSOF are DEEMED admitted.
See Local Rule LR56.1.

Further, the Court will not consider the

facts in the Beavers CSOF Section, insofar as they rely on the
Beavers Exhibits, which have been stricken.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 19, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

KELVIN BANKS, ET AL. VS. JOHN M. MCHUGH, ET AL.; CIVIL NO. 1100798 LEK-KSC; ORDER STRIKING PLAINTIFF ALISON BEAVERS’ POINT-BYPOINT RESPONSE TO DEFENDANT’S STATEMENT IN SUPPORT OF SUMMARY
JUDGMENT, HER REBUTTAL TO CONCISE STATEMENT OF MATERIAL FACTS,
AND THE EXHIBITS REFERRED TO IN THE DECLARATION OF ANTHONY P.X.
BOTHWELL

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