Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Knight et al

Filing 289

MEMORANDUM AND ORDER denying 267 Motion for Summary Judgment without prejudice. Plaintiff may refile a cross motion for summary judgment on orbefore August 9, 2013, that complies with Federal Rule of Civil Procedure 56, Local Rule 56.1, and all ot her applicable rules. A response and a reply may be filed within the time constraints contained in Local Rule 6.1(d) IT IS FURTHER ORDERED that Plaintiffs Motion to Strike Memorandum in Support ofMotion (Doc. 268 ) is denied. IT IS FURTHER ORDERED that Defendants Motion to Strike (Doc. 278 ) is denied. Signed by District Judge Carlos Murguia on 7/26/2013. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KICKAPOO TRIBE OF INDIANS OF THE )
KICKAPOO RESERVATION IN KANSAS, )
)
Plaintiff,
)
)
v.
)
)
)
MICHAEL BLACK, et al.,
)
)
Defendants.
)
)

Case No. 06-2248-CM

MEMORANDUM AND ORDER
On January 16, 2013, defendant Nemaha Brown Watershed Joint District No. 7 (“defendant”)
filed a motion for summary judgment (Doc. 247). Plaintiff Kickapoo Tribe of Indians of the Kickapoo
Reservation in Kansas (“plaintiff”) filed its response (Doc. 266) and defendant filed its reply (Doc.
276). On the same day plaintiff filed its response, it also filed a cross motion for summary judgment
(Doc. 267). Plaintiff did not provide any statement of material facts or argument in support of its cross
motion. Instead, plaintiff offered the facts and arguments in its response to defendant’s motion for
summary judgment in support of its cross motion. Plaintiff later filed a reply to its cross motion for
summary judgment (Doc. 284), stating that defendant had made a “de facto” response to plaintiff’s
cross motion for summary judgment when defendant filed a reply to its own summary judgment
motion.
This matter is before the court on two motions to strike, one filed by defendant to strike
plaintiff’s cross motion for summary judgment (Doc. 278) and one filed by plaintiff to strike four
affidavits attached to defendant’s memorandum in support of its motion for summary judgment and

-1-

statements made in defendant’s statement of uncontroverted facts in the memorandum (Doc. 268).
These motions are discussed in turn.
Defendant’s Motion to Strike (Doc. 278)
Defendant argues that plaintiff has not complied with Federal Rules of Civil Procedure 56(a),
56(c), 56(e), and Local Rule 56.1 in the formatting or substance of its cross motion. Defendant argues
that many of plaintiff’s responses to defendant’s statement of uncontroverted facts do not contain any
reference to any document from the record as required by Local Rule 56.1(b)(1) and that other
assertions are unsupported by the record. Further, defendant argues that plaintiff’s response/cross
motion contains no distinct section in which it provides an asserted statement of uncontroverted facts
in support of its cross motion, making it impossible to tell where plaintiff’s alleged facts in response to
defendant’s motion end, and where the facts in support of plaintiff’s cross motion begin.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
issue as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The standard is the same and each party must meet its burden when parties file cross motions for
summary judgment. Kan. Penn Gaming, LLC v. HV Properties of Kan., LLC, 727 F. Supp. 2d 1100,
1104 (D. Kan. 2010). Under Local Rule 56.1(a), a party must include in its memorandum or brief in
support of its motion for summary judgment a concise statement of material facts as to which the
movant contends no genuine issue exists. These facts must be numbered and must cite to specific
portions of the record. Local Rule 56.1(a).
The court agrees that plaintiff’s unorthodox approach of combining its response to defendant’s
motion for summary judgment and its cross motion for summary judgment makes it extremely difficult
for both defendant and the court to determine which facts and arguments support plaintiff’s cross
motion for summary judgment. The court also agrees that plaintiff’s approach prevents defendant

-2-

from filing a cogent response to plaintiff’s motion. Further, plaintiff fails to cite to specific portions of
the record on a number of its responses attempting to controvert defendant’s original statement of
facts. It is not the duty of the court to search the record to find support for plaintiff’s arguments. See
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“If the rule were otherwise, the
workload of the district courts would be insurmountable and summary judgment would rarely be
granted.”).
Because of the above-described deficiencies, the court denies plaintiff’s cross motion for
summary judgment without prejudice. Plaintiff may refile a cross motion for summary judgment on or
before August 9, 2013, that complies with Federal Rule of Civil Procedure 56, Local Rule 56.1,
and all other applicable rules. A response and a reply may be filed within the time constraints
contained in Local Rule 6.1(d).
Defendant’s motion to strike also asks the court to strike certain portions of plaintiff’s response
to defendant’s motion for summary judgment for failure to cite to the record as required by Federal
Rule of Civil Procedure 56(c) and Local Rule 56.1. Plaintiff has also filed a motion to strike asking
the court to strike certain arguments and statements made by defendant in its statement of
uncontroverted facts for failure to cite to the record. The court will treat both situations the same—the
court declines to strike the noncompliant portions and instead will simply disregard them. See RMD,
LLC v. Nitto Americas, Inc., No. 09-2056-JAR, 2012 WL 1033542, at *2 (D. Kan. Mar. 27, 2012)
(noting that the court typically declines to strike a response to a motion for summary judgment that
does not comply with Local Rule 56.1 or Rule 56(c) and instead disregards the portions that do not
comply).
For these reasons, the court denies defendant’s motion to strike. Plaintiff’s cross motion for
summary judgment is denied without prejudice. In addition, the court will disregard any portions of

-3-

plaintiff’s response to defendant’s motion for summary judgment that do not comply with Local Rule
56.1 or Rule 56(c).
Plaintiff’s Motion to Strike (Doc. 268)
Plaintiff moves to strike the four affidavits attached to defendant’s memorandum in support of
its motion for summary judgment and statements made in the “statement of uncontroverted facts”
section of defendant’s memorandum. Plaintiff argues that the court should strike the affidavits because
they: (1) contain inadmissible parol evidence, and (2) contain hearsay statements.
In this case, both parties agree that the Watershed Plan (“Plan”) is unambiguous, although each
asserts that the Plan stands for opposite results. It is the province of the court to determine whether the
Plan is ambiguous. See Claytor v. Computer Assocs. Int’l, Inc., 262 F. Supp. 2d 1188, 1196 (D. Kan.
2003). Both parties agree that if the court determines that the Plan is unambiguous, then the court must
ascertain the parties’ intent from the four corners of the document, without reference to extrinsic or
parol evidence. See Simon v. Nat’l Farmers Org., Inc., 829 P.2d 884, 887–88 (Kan. 1992). However,
if the court determines that the Plan is ambiguous, parol evidence is admissible to ascertain the intent
of the parties. Souder v. Tri-County Refrigeration Co., 373 P.2d 155, 159–60 (Kan. 1962). Thus, if
the court determines that the Plan is ambiguous, the court may then consider the affidavits.
Plaintiff also argues that two of the affidavits contain hearsay statements and are thus
inadmissible. Defendant contends that the statements are nonhearsay because they are not offered for
the truth of the matter asserted, and that the statements are only offered to show the state of mind of the
affiants. The court need not rule whether the affidavits contain hearsay statements at this time. If the
court determines that the Plan is ambiguous, and thus considers the affidavits, it will not consider any
hearsay statements in the affidavits—if they exist.

-4-

Finally, plaintiff’s motion asks the court to strike portions of defendant’s statement of
uncontroverted facts in its memorandum because they include legal argument and conclusions and are
not supported by the record. In defendant’s response, it states that it has withdrawn several of the
disputed facts in its reply brief. As to the remaining disputed facts, the court will treat this situation
just as it did above—the court declines to strike the noncompliant portions and instead will simply
disregard them. See RMD, 2012 WL 1033542, at *2.1
For these reasons, the court denies plaintiff’s motion to strike. If the court determines that the
Plan is ambiguous, the court will consider the admissible portions of the affidavits submitted by
defendant in support of its motion for summary judgment. The court will disregard any portions of
defendant’s statement of uncontroverted facts that do not comply with Local Rule 56.1 or Rule 56(c).
As a final note, the court is disappointed with the behavior of the parties in this case. Finger
pointing and gamesmanship have no place in federal court. In addition, the court notes that plaintiff’s
response to defendant’s motion to strike contains several citations to cases that do not stand for the
stated proposition. And plaintiff’s filing of a reply to defendant’s “de facto” response was not welltaken by the court. This case just celebrated its seven-year anniversary on the court’s docket. Instead
of aiding the court in the just, speedy, and inexpensive resolution of this case, the parties have
unnecessarily prolonged a decision from this court by requiring it to expend time, effort, and resources
to address the issues described above. Had plaintiff filed a cross motion for summary judgment that
complied with federal and local rules, and had both parties properly cited to the record in their
respective briefs, the court likely would not have had to address the motions to strike or set a new

1

The court does not agree with plaintiff’s argument that this is unfair because defendant has used its statement of
uncontroverted facts to contravene the court’s page limitation without leave of court. Instead, both parties have
acknowledged the complex factual background of this case, and both parties have filed lengthy briefs containing
background information and facts to assist the court in understanding this complex background. There is no
evidence that defendant has used its statement of uncontroverted facts section to contravene the court’s page
limitations.

-5-

briefing schedule for plaintiff’s cross motion. Both parties are reminded of their duty to strictly adhere
to both the federal and local rules and to treat each other and this court with respect. The court will
tolerate nothing less.
IT IS THEREFORE ORDERED that Defendant’s Motion to Strike (Doc. 278) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Cross Motion for Summary Judgment (Doc.
267) is denied without prejudice. Plaintiff may refile a cross motion for summary judgment on or
before August 9, 2013, that complies with Federal Rule of Civil Procedure 56, Local Rule 56.1,
and all other applicable rules. A response and a reply may be filed within the time constraints
contained in Local Rule 6.1(d).
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Memorandum in Support of
Motion (Doc. 268) is denied.
Dated this 26th day of July, 2013, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

-6-