Kelly v. Omaha Housing Authority

Filing 92

ORDER - The plaintiff's Motion to Reconsider Minute Order Doc. 86 87 is denied. The plaintiff's Motion to Strike Duplicative Exhibits 90 is granted as set forth in this Order. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BONNIE KELLY,
Plaintiff,
vs.
OMAHA HOUSING AUTHORITY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

8:10CV245

ORDER

This matter is before the court on the plaintiff’s Motion to Reconsider Minute Order
Doc. 86 (Filing No. 87) and Motion to Strike Duplicative Exhibits (Filing No. 90).
On March 1, 2011, the defendants filed a motion for summary judgment, with a brief
and an index of evidence. See Filing Nos. 46, 47, and 48. On March 2, 2011, the
defendants filed an amended index of evidence. See Filing No. 49. On March 25, 2011,
the plaintiff filed a brief in opposition to the defendants’ motion for summary judgment. See
Filing No. 51. On April 1, 2011, the plaintiff filed an amended brief, after receiving leave
of court to do so. See Filing No. 57. On the same date, the plaintiff filed several
documents as “index of evidence” or “attachment.” See Filing No. 58 (“TAB. F” and
“Exhibit C”); Filing No. 58-1 (“TAB. E” with the docket text stating “Exhibit E”); Filing No. 59
(“TAB. D-1”); Filing No. 59-1 (“TAB. D-2”); Filing No. 59-2 (“TAB. D-3”); Filing No. 60 (Index
listing evidence and Exhibits A-1, A-2, A-3, and A-4); Filing No. 61 (“TAB. E”); Filing No.
62 (“TAB. F” and “Exhibit C”); Filing No. 63 (“TAB. D-1”); Filing No. 64 (“TAB. D-2”); Filing
No. 65 (“TAB. D-3”). On April 2, 2011, the plaintiff again filed several “attachments”. See
Filing No. 66 (“TAB A-5” however docket text says “regarding Ex. D”); Filing No. 67 (“TAB
A-5”); Filing No. 68 (appears to be a continuation of Exhibit A-5); Filing Nos. 69-70 (“TAB.
C” and what appears to be a continuation of the same document); Filing No. 71 (“TAB. D1” however docket text says “regarding Exhibit D”); Filing No. 72 (document without exhibit
number and not found on exhibit list however docket text says “regarding Exhibit D”); Filing
No. 73 (Ekeh Decl.); Filing Nos. 74-75 (“TAB. B”). Finally, the plaintiff filed one last exhibit
on April 3, 2011. See Filing No. 76 (Kelly Aff.). On April 4, 2011, the plaintiff re-filed “TAB.

E” because the document previously filed at Filing No. 61 is partially illegible. See Filing
No. 79.
On April 7, 2011, the plaintiff filed a motion to strike “out from the record Docket
filing numbers 58, 59, 60 and 61, exhibits submitted by plaintiff in support of her opposition
to defendants’ motion for summary judgment as being duplicative.” See Filing No. 82.
Later the same day, the plaintiff again filed the same motion to strike using identical
language in the text of the motion. See Filing No. 85.1 Subsequently, the court entered
a text order granting the plaintiff’s identical motions to strike directing that “[t]he Clerk of
Court shall strike from the record the plaintiff's exhibits at Filing Nos. 58, 59, 60, and 61,
as requested.” See Filing No. 86. The Clerk of Court complied with the order.
On the same date, the plaintiff filed a motion to reconsider, stating the plaintiff
“moves this Court to reconsider its Order, Docket filing number 86, granting Plaintiff’s
Motion To Strike, Docket filing 82. Plaintiff’s counsel inadvertently submitted docket filing
number 82. WHEREFORE Plaintiff prays the court to strike out from the record the only
Docket filing number 85.” The plaintiff’s motion for reconsideration must be denied. The
plaintiff’s motions at Filing Nos. 82 and 85 were identical. The fact that one of the motions
was inadvertently filed does not change the relief sought in the motions.
Subsequently, the plaintiff filed the April 10, 2011, motion to strike stating the
plaintiff:
moves this Court to withdraw docket filings numbers 82 and 85
which were filed in error and to reinstate docket filing numbers
58, 58-1, 59, 60 and 61 strike from the record by the court,
docketing filing number 86, pursuant to Plaintiff’s motion to
strike, docket filing numbers 82 and 85.
Plaintiff moves this Court to strike docket filings 58,
58-1, 59, 59-1, 59-2, 61, 63, and 66.
WHEREFORE Plaintiff prays the court to allow to
withdraw docket filing numbers 82 and 85, reinstate docket
filing numbers 58, 58-1, 59, 60, 61 and strike out from the
record the only Docket filing numbers 58, 58-1, 59, 59-1, 59-2,
61, 63, and 66.

1

The court notes the docket text for Filing No. 82 referenced striking “filing num bers 58, 59, 60, &
61” while the docket text for Filing No. 85 referenced striking “docket filings 58-1 and 61.” However, the court
will not disregard the explicit text of a m otion and rely only on the docket text.
2

Plaintiff obtained Defendants’ consent to file this motion
to strike duplicative exhibits filed by Plaintiff in support of her
opposition to their motion for summary judgment on April 6,
2011.
See Filing No. 90.
The plaintiff’s April 10, 2011, motion seeks relief similar to that sought in the earlier
motions. However, in the context of all of the plaintiff’s filings, the actual relief sought is
still unclear. The court will not reinstate certain filings merely to strike them anew. The
court has reviewed the record and finds that the plaintiff’s filings associated with the brief
in response to the defendants’ summary judgment were filed in contravention of the court’s
local rules and procedures. See NECivR 7.0.1(b)(2) and Filing Attachments Written
Procedures found at http://www.ned.uscourts.gov/cmecf/training.html. Also available on
the website are interactive computer-based training modules about filing attachments and
other basic electronic filing tasks.

The plaintiff’s failure to file the documents in

conformance with the court’s procedures has resulted in confusion, repeated duplicate
filings, and multiple motions and orders. Future failures to comply with the local rules and
procedures may result in the court striking documents improperly filed and treating the
plaintiff’s position as abandoned. See NECivR 7.0.1; NEGenR 1.3.
In an attempt to clarify the record and strike duplicate or unnecessary extra filings,
the court will modify the docket as set forth below. The plaintiff’s listing of evidence, as it
appears from the Index (Filing No. 60), is repeated below with corresponding filing
numbers, as available. This list does not include duplicate or mistaken filings, which have
been stricken.
Filing No. 73
Filing No. 76
Filing No. 60-1
Filing No. 60-2

Vincent Ekeh’s Affidavit.
Bonnie Kelly’s Affidavit.
Exhibit A-1: Bonnie Kelly’s Application for HR position
Exhibit A-2: Email from Frank Brown request to review contracts
prior to approval.
Filing No. 60-3
Exhibit A-3: Robert Fidoni’s email to Kelly with the word KISS
Filing No. 60-4
Exhibit A-4 Timothy Bohling 10/12008 03:04 PM, Subject: Building
Access-Email.
Filing Nos. 67 & 68 Exhibit A-5 Excerpts of OHA Board of Directors Minutes from May
2008 to June 2009 showing the attendance of Bonnie
Kelly at those Meetings as a Director.
Filing Nos. 74 & 75 Exhibit B:
Timothy Bohling’s Deposition Excerpts.
3

Filing Nos. 69 & 70 Exhibit C:
NOT FOUND
Exhibit D:
Filing No. 59
Filing No. 59-1
Filing No. 59-2
Filing No. 79

Filing No. 62

Stanley Timm’s Deposition Excerpts.
Kelly’s job performance evaluation by Barry Long for
2004 and 2003.
Exhibit D-1: Kelly’s job performance evaluation by Stanley Timm for
2005.
Exhibit D-2: Kelly’s job performance evaluation by Stanley Timm for
2006.
Exhibit D-3: Kelly’s job performance evaluation by Stanley Timm for
2007.
Exhibit E:
Housing Authority Of The City Of Omaha Personnel
Policy Handbook. Effective July 1, 2007. Approved May
24, 2007 by the OHA Board of Commissioners.
Exhibit F:
Housing Authority Of The City Of Omaha Procurement
& Contract Director; Reports to: Executive Director;
Location: Central Office; Revision: December 20, 2006;
Status: Exempt, also January 5, 2009.

If either party believes the court has misinterpreted the plaintiff’s motions, such party
shall file a detailed motion listing each relevant document by filing number and exhibit
number with a full explanation for any change sought. Upon consideration,

IT IS ORDERED:
1.

The plaintiff’s Motion to Reconsider Minute Order Doc. 86 (Filing No. 87) is

denied.
2.

The plaintiff’s Motion to Strike Duplicative Exhibits (Filing No. 90) is granted

as set forth herein.
3.

The Clerk of Court shall reinstate Filing No. 59 and change the docket text

to read, “ATTACHMENT - CONTINUED regarding Brief [57] and in opposition to
defendants' motion for summary judgment [46], Exhibit D-1” and to remove the word
“STRICKEN.” The attachments shall remain as listed and are not to be stricken or
modified.
4.

The Clerk of Court shall reinstate Filing No. 60 and change the docket text

to read, “Index in support of Brief [57] and in opposition to defendants' motion for summary
judgment [46]” and to remove the word “STRICKEN.” The attachments shall remain as
listed and are not to be stricken or modified.

4

5.

The Clerk of Court shall strike Filing No. 63 (a document titled “Tab. D-1”);

Filing No. 64 (a document titled “Tab. D-2”); Filing No. 65 (a document titled “Tab. D-3”);
Filing No. 66 (a document titled “TAB A-5”); and Filing No. 71 (“TAB. D-1” however docket
text says “regarding Exhibit D”) as duplicate filings.
6.

The Clerk of Court shall strike Filing No. 72 because it does not have an

exhibit number and is not found on the plaintiff’s exhibit list despite the docket text
indicating it is associated with “Exhibit D”.
7.

The Clerk of Court shall amend the docket text for Filing No. 75 to change

the text “Exhibit 2” to “Exhibit B (part 2).”
DATED this 14th day of April, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
5