Turner v. Hubbard Systems, Inc.
Filing
298
Magistrate Judge M. Page Kelley: ORDER entered denying 247 Emergency Motion to Strike 245 Certificate of Consultation pursuant to LR 7.1, 244 Statement of Material Facts L.R. 56.1, 243 Memorandum in Support of Motion, 246 Emergency MOTION to Strike 243 Memorandum in Support of Motion. Please see order for details. (Moore, Kellyann)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GREGORY P. TURNER,
Plaintiff,
v.
CIVIL ACTION NO. 12-11407-GAO
HUBBARD SYSTEMS, INC.,
Defendant.
ORDER ON MOTION TO STRIKE (#247)
KELLEY, U.S.M.J.
On August 17, 2015, Defendant filed a motion for summary judgment with a statement of
facts. (##242, 243, 244, 245,296, 297; un-redacted copies, ##249, 250, 251, 252.) Plaintiff
responded with two emergency motions to strike portions of Defendant’s summary judgment
motion and certain supporting documents. (##246, 247, 248.) Defendant opposed both motions
to strike (#253), and Plaintiff replied, with leave of court. (#256.) On September 24, 2015, the
undersigned held a hearing on Plaintiff’s emergency motions, and determined that the first
motion to strike (#246) would be considered as a motion to seal,1 and that the second (#247)
would be decided along with the parties’ cross-motions on summary judgment. (#261.) For the
reasons below, the second motion to strike (#247) is denied.
In this motion, Plaintiff seeks to strike “all references in the motion and supporting
documents, regarding mitigation, mistake or that Turner owed Hubbard the money that it was
attempting to collect from Turner.” (#247 at 1.) Plaintiff states that Defendant’s summary
judgment motion goes “beyond the scope of the pleadings” because Defendant failed to plead
1
This Court issued an order granting #246 on November 23, 2015 (#292) and a further order on
December 9, 2015. (#295.)
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mitigation or mistake as affirmative defenses, and that Defendant is improperly using summary
judgment as a vehicle for seeking an adjudication on a contract claim.2 (Id.) Defendant responds
that a motion to strike is improper under Fed. R. Civ. P. 12(f), and that it is not seeking to raise
either mitigation or mistake as defenses.
A. Waiver of defenses
Plaintiff argues that “mitigation” and “mistake” are affirmative defenses that Defendant
seeks to raise on summary judgment, yet has waived by failing to raise in its answer. Defendant’s
argument is actually that Plaintiff lacks evidence sufficient to raise a genuine issue of material
fact on two essential elements of his claims, and Defendant is entitled to argue that Plaintiff
cannot meet that burden. Indeed, in their memoranda both parties cited Zivkovic v. S. California
Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (“A defense which demonstrates that plaintiff
has not met its burden of proof is not an affirmative defense”). This is precisely the defense at
hand. It has not been waived, and Defendant has every right to include it in a summary judgment
motion.
In a conversion action, “[t]he [rightful] owner is not bound to accept a return of his
property, but if he retakes it he may recover as damages the difference between the value of the
property when converted and when returned, plus damages for loss of use during the period of
wrongful detention.” George v. Coolidge Bank & Trust Co., 360 Mass. 635, 641 (1971) (citing
Clement & Hawkes Mfg. Co. v. Meserole, 107 Mass. 362, 364 (1871); Jackson v. Innes, 231
Mass. 558, 560 (1919); Lawyers Mortgage Inv. Corp. of Boston v. Paramount Laundries, Inc.,
287 Mass. 357, 361 (1934); and Food Specialties, Inc. v. John C. Dowd, Inc., 339 Mass. 735,
748 (1959)). This type of “mitigation” is not a waivable defense; it is the measure of damages
2
Plaintiff also included arguments pertaining to prior orders of this Court which have already been
thoroughly litigated. (#248 at 5-6, 10-11.) The Court declines to address those topics again.
2
for conversion under Massachusetts law. See Jackson, 231 Mass. at 560 (a plaintiff’s acceptance
of converted property limits the damages that may be recovered). Here, Plaintiff has argued
rightly that “mitigation is not an element of conversion which the plaintiff must prove.” (#248 at
3.) However, damages are such an element, and Plaintiff carries the burden of establishing
sufficient facts to raise a genuine issue that he incurred either a permanent loss of his property or
another type of monetary loss. He cannot foist his damages claims on Defendant to disprove or
pay up. See In re Computer Eng’g Associates, Inc., 278 B.R. 665, 682 (D. Mass. 2002), aff’d,
337 F.3d 38 (1st Cir. 2003) (damages are “essential element of a claim for conversion”). See also
Henry v. Nat’l Geographic Soc’y, 147 F. Supp. 2d 16, 21 (D. Mass. 2001), and Stone & Webster
Eng’g Corp. v. First Nat. Bank & Trust Co. of Greenfield, 345 Mass. 1, 11 (1962).
Plaintiff cites several cases in support of his contention that mitigation is an affirmative
defense. In doing so, he fails to draw distinctions between various types of mitigation. Nelson
Anderson, Inc. v. McManus is inapposite because it concerns a situation in which the tortfeasor
sold the converted property and used the proceeds to pay a debt, benefiting the plaintiff—which
is not the case here. 334 Mass. 394 (1956). He also cites authority for the proposition that a
plaintiff’s failure to mitigate damages is an affirmative defense. Conjugal P’ship Comprised by
Joseph Jones and Verneta G. Jones, d/b/a Stenotype Sys., v. Conjugal P’ship Comprised of
Arthur Pineda and Toni Pineda, 22 F.3d 391 (1st Cir. 1994). Here, however, neither party has
argued that Plaintiff failed to take any steps to mitigate his damages.
Plaintiff’s arguments on “mistake” fare no better. Despite Plaintiff’s arguments to the
contrary,3 it is axiomatic that conversion is an intentional tort. See 14C Mass. Prac., Summary of
Basic Law § 17.19 (4th ed.) (citing Dobbs, The Law of Torts (West Group, 2000), § 62),
3
#265 at 3-4.
3
Restatement (Second) of Torts § 222A (1965), and see Spooner v. Manchester, 133 Mass. 270,
273 (1882). Intent is an element of conversion that Plaintiff must allege, not a presumption that
Defendant must disprove. Finally, Defendant has specifically denied asserting the defenses of
either mitigation of damages or mistake. (#253-1 at 1.) Because Defendant is entitled to argue
absence of evidence, these portions of its documents will not be stricken.
B. Money owed
Plaintiff seems to believe that Hubbard is seeking a judgment that it was properly owed a
sum of money under the parties’ contract. (#248 at 1.) That question is not before this Court.
Neither party has raised contractual claims in this proceeding, nor is Hubbard seeking to recover
any money in this action. (##1, 6.) For purposes of determining the cross-motions for summary
judgment, Plaintiff’s denial that he owed Defendant money will be noted and considered as part
of his statement of facts, pursuant to Fed. R. Civ. P. 56. These parts of Defendant’s documents
will not be stricken.
C. Propriety of motion to strike
Both parties point out that motions to strike under Fed. R. Civ. P. 12(f) apply only to
pleadings. See Brown v. F.B.I., 793 F. Supp. 2d 368, 382 (D.D.C. 2011) (citing Great Socialist
People’s Libyan Arab Jamahiriya v. Ahmad Miski, 683 F.Supp.2d 1, 15 (D.D.C.2010)) (motions
for summary judgment are not “pleadings” and cannot be subject to motions to strike). Plaintiff
correctly argues that parties may also move to strike certain other types of documents. See
Facey v. Dickhaut, 91 F. Supp. 3d 12, 19-20 (D. Mass. 2014) (“A motion to strike is the
appropriate means of objecting to the use of affidavit evidence on a motion for summary
judgment”). However, the scope of motions to strike is limited to challenging documents not in
compliance with the Federal Rules of Civil Procedure. “The moving party must specify the
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objectionable portions of the affidavit and the specific grounds for objection. Furthermore, a
court will disregard only those portions of an affidavit that are inadmissible and consider the rest
of it.” Id. at 20 (citing Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682
(1st Cir.1994), and Perez v. Volvo Car Corp., 247 F.3d 303, 315–16 (1st Cir.2001)).
Here, Plaintiff has not objected to the admissibility of any of Defendant’s evidence or
asserted that it violates Rule 56. Instead, Plaintiff seeks to strike parts of Defendant’s motion and
facts solely on legal grounds. Those arguments are not appropriate for a motion to strike; they
should have been included in Plaintiff’s opposition to the summary judgment motion itself.
For all the reasons above, Plaintiff’s motion to strike (#247) is DENIED.
/s / M. Page Kelley
M. Page Kelley
United States Magistrate Judge
December 22, 2015.
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