White v. Roosevelt UFSD Board of ED.

Filing 110

MEMORANDUM & ORDER denying 93 Motion for Summary Judgment; denying 105 Motion for Summary Judgment. For the stated reasons, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (ECF No. 93) is DENIED WITHOUT PREJUDICE with leave to re-file in accordance with Local Rule 56.2. Plaintiff's Cross-Motion (ECF No. 105) is, likewise, DENIED WITHOUT PREJUDICE TO RENEW. So Ordered by Judge Joanna Seybert on 7/10/2023. (CV)

Case 2:15-cv-01035-JS-JMW Document 110 Filed 07/10/23 Page 1 of 8 PageID #: 2223

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
DOUGLAS S. WHITE,
Plaintiff,

MEMORANDUM & ORDER
15-CV-1035 (JS)(JMW)

-againstROOSEVELT UNION SCHOOL DISTRICT
BOARD OF EDUCATION,

Defendant.
--------------------------------X
APPEARANCES
For Plaintiff:
Douglas S. White, pro se
989 Clinton Place
Baldwin, New York 11510
For Defendant:

Gerald S. Smith, Esq.
Silverman & Associates
445 Hamilton Avenue, Suite 1102
White Plains, New York 10601

SEYBERT, District Judge:
Roosevelt

Union

School

District

Board

of

Education

(“Defendant”) moves pursuant to Rule 56 of the Federal Rules of
Civil Procedure (“Rule”) seeking summary judgment (hereafter, the
“Motion”) (ECF No. 93), against Douglas S. White (“Plaintiff”).
Plaintiff, likewise, moves pursuant to the same Rule seeking
summary judgment against Defendant (hereafter, the “Cross-Motion”)
(ECF No. 105).

For the reasons that follow, Defendant’s Motion is

DENIED WITHOUT PREJUDICE TO RENEW, and Plaintiff’s Cross-Motion is
also DENIED WITHOUT PREJUDICE TO RENEW.

Case 2:15-cv-01035-JS-JMW Document 110 Filed 07/10/23 Page 2 of 8 PageID #: 2224

BACKGROUND
I.

Facts & Procedural History
The Court presumes the parties’ familiarity with the

background facts giving rise to the instant Motion and CrossMotion.

Therefore, an extensive recitation of the same is not

provided; rather, the Court provides only those facts necessary to
determine the instant motions before it.
PROCEDURAL HISTORY
On July 24, 2020, Defendant filed a Rule 56.1 Statement
(Def.’s 56.1 Stmt., ECF No. 76), and a letter motion for a
premotion

conference

regarding

a

judgment (PMC Request, ECF No. 77).
extensions,

Plaintiff

December 22, 2020.

filed

a

proposed

motion

for

summary

After being granted numerous

Rule

56.1

Counterstatement

on

(Pl.’s 56.1 Counterstatement, ECF No. 89).

To

his Counterstatement Plaintiff attached, inter alia, letters from
witnesses, and various audio and video recordings that he intended
to rely upon in opposing Defendant’s motion.

(See id.)

Plaintiff

made no attempt to authenticate any of the audio or video evidence
either through a personal affidavit or otherwise.

(Id.)

On April

23, 2021, the Court waived its premotion conference requirement
and set a briefing schedule on Defendant’s Motion.
2021 Elec. Order.)

(See Apr. 23,

On June 15, 2021, Defendant filed its Notice

of Motion, along with supporting documents.
2

(See Motion; Support

Case 2:15-cv-01035-JS-JMW Document 110 Filed 07/10/23 Page 3 of 8 PageID #: 2225

Memo, ECF No. 94; Glenn Decl., ECF No. 95.)

Copies of Defendant’s

Notice and supporting documents were served upon Plaintiff via
overnight mail.

(Cert. of Serv., ECF No. 96).

On February 28,

2022, Plaintiff opposed Defendant’s Motion and filed his CrossMotion.

(See Cross-Motion.)

Defendant replied to Plaintiff’s

Opposition and Cross-Motion, as well as Plaintiff’s Rule 56.1
Counterstatement

on

March

30,

2022.

(See

Counterstatement, ECF No. 107; Reply, ECF No. 109).

Def.’s

56.1

On the same

day, Defendant served Plaintiff with those documents via regular
mail.

(Cert. of Serv., ECF No. 108).
ANALYSIS

I.

Legal Standard
A. Summary Judgement Required Notices
Pursuant to Local Civil Rule 56.2, “[a]ny represented

party moving for summary judgment against a party proceeding pro
se shall serve and file as a separate document, together with the
papers in support of the motion . . . [a] Notice to Pro Se Litigant
Opposing Motion for Summary Judgment.”
56.2 (emphasis added).

E.D.N.Y. Local Civil Rule

As part of this required notice, the

represented party is required to attach the full text of Federal
Rule of Civil Procedure (“Rule”) 56.

(Id.)

“The purpose of this

rule is to ensure that a party acting pro se ‘understands its
burden in responding to a motion for summary judgment, and the
consequences of failing to do so.’”
3

Rivera v. Goulart, No. 15-

Case 2:15-cv-01035-JS-JMW Document 110 Filed 07/10/23 Page 4 of 8 PageID #: 2226

CV-2197, 2018 WL 4609106, at *3 (S.D.N.Y. Sept. 25, 2018) (quoting
Hartford Life Ins. Co. v. Einhorn, 452 F. Supp. 2d 126, 129
(E.D.N.Y.

2006)).

The

notice

further

serves

the

purpose

of

informing the pro se litigant “that he or she must submit evidence
countering the facts asserted by the Defendant.”

Covello v.

Depository Tr. Co., 212 F. Supp. 2d 109, 115 (E.D.N.Y. 2002).

“The

failure to include a Rule 56.2 Statement with a motion for summary
judgment is grounds for the denial of the motion if it is not
otherwise clear from the record that the pro se litigant understood
the nature of the summary judgment motion.”

Hartford Life Ins.

Co., 452 F. Supp. 2d at 120 (citing Vital v. Interfaith Med. Ctr.,
168 F.3d 615, 620-21 (2d Cir. 1999)); see also Vital, 168 F.3d at
620-21 (holding failure of the district court to apprise pro se
litigant of consequences of failing to respond to a motion for
summary judgment is grounds for reversal).

The “linchpin of Rule

56.2 is whether a pro se [litigant] ultimately is aware of the
basic requirements and ramifications of the adjudication of the
summary judgment motion against him.”

Forsyth v. Fed’n Emp‘t &

Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005), abrogated on
other grounds by Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.
618 (2007).
“Notwithstanding,

this

requirement

‘should

not

be

understood, however, to set down an unyielding rule that prohibits
district courts from acting upon motions for summary judgment
4

Case 2:15-cv-01035-JS-JMW Document 110 Filed 07/10/23 Page 5 of 8 PageID #: 2227

sought against pro se litigants in the absence of explanatory
notice.’”

Carzoglio v. Paul, No. 17-CV-3651, 2022 WL 5244727, *2

(S.D.N.Y. Oct. 6, 2022) (quoting Sawyer v. Am. Fed’n Of Gov’t
Emps., AFL-CIO, 180 F.3d 31, 35 (2d Cir. 1999).
the

issue

in

each

case

remains

whether

“On the contrary,
from

all

of

the

circumstances, including the papers filed by the pro se litigant,
it is reasonably apparent that the litigant understood the nature
of the adversary’s summary judgment motion and the consequences
for not properly opposing it.”
II.

Sawyer, 180 F.3d at 35.

Discussion
Here, Defendant failed to serve upon the pro se Plaintiff

the required notice and statement under Local Rule 56.2.
Case Docket, in toto.)

(See

While such failure is not fatal where the

pro se party’s papers and responses make clear that “he understood
the consequences of a summary judgment motion and the requirements
of a successful response,” see e.g. M.B. v. Reish, 119 F.3d 230,
232 (2d Cir. 1997), such is not the case here.

Indeed, after its

careful review of the record, it is unclear to the Court whether
the Plaintiff truly understood “his burden in responding to such
a

motion

(i.e.,

that

he

must

submit

[admissible]

evidence

countering the facts asserted by Defendants and raising issues of
fact

for

trial).”

Carzoglio,

2022

WL

5244727,

at

*2.

Notwithstanding the fact that Plaintiff submitted opposition to
Defendant’s Motion and a Cross-Motion, much of the evidence upon
5

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which Plaintiff relied is either inadmissible or is not presented
in an admissible format. 1

See Sawyer, 180 F.3d at 34 (holding that

“in the absence of explicit notice, the mere existence of a
response does not automatically give rise to the inference that a
pro

se

litigant

understood

the

nature

of

a

summary

judgment

motion.”) For example, Plaintiff has provided no admissible, sworn
affidavits either in support of his Cross-Motion or in opposition
to Defendant’s Motion. 2

Additionally, to the extent Plaintiff

intended to rely upon video/audio exhibits, none of these exhibits

Additionally,
while
Plaintiff
submitted
a
Rule
56.1
Counterstatement, the Court notes that many of Plaintiff’s
responses lack the requisite citations to admissible evidence.
1

The notarized letters submitted by Plaintiff are inadmissible as
they are neither presented in affidavit format nor are they sworn
to under penalties of perjury. See DeMars v. O’Flynn, 287 F. Supp.
2d 230, 242 (W.D.N.Y. 2003):
2

By definition, an affidavit is a sworn
document, declared to be true under the
penalties of perjury. . . . To be considered
in connection with a summary judgment motion,
the rule requires that submissions in the form
of
statements
be
prepared
as
affidavits. . . .
Failure
to
submit
materials in this form will cause the
submission to be disregarded by the court in
its consideration of the pending motion.
(quoting 11 MOORE’S FEDERAL PRACTICE, § 56.14(1)(b) (Matthew Bender 3d
ed.)); Flowers v. Abex Corp., 580 F. Supp. 1230, 1233 n.2 (N.D.
Ill. 1984) (“Merely notarizing the signature does not transform a
letter into an affidavit.”) Similarly, to the extent Plaintiff
intended to rely upon witness statements presented in the form of
audio and/or video recordings, these too would be inadmissible for
the same reasons.
6

Case 2:15-cv-01035-JS-JMW Document 110 Filed 07/10/23 Page 7 of 8 PageID #: 2229

were authenticated and, consequently, would not be admissible
evidence that the Court could consider at the summary judgment
stage.

See Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d

398, 419 (S.D.N.Y. 2011).
In view of the foregoing, in its review of the Case
Docket, as well as Plaintiff’s response to Defendant’s Motion, it
is unclear to the Court whether Plaintiff truly understood his
burden in responding to Defendant’s Motion, especially that, to
meet that burden, he could rely only upon admissible evidence.
Had Plaintiff been served with the required notice pursuant to
Local Rule 56.2, along with a copy of Rule 56, this may have not
been

the

case.

As

such,

out

of

an

abundance

of

caution,

Defendant’s motion must be denied.
CONCLUSION
For

the

stated

reasons,

IT

IS

HEREBY

ORDERED

that

Defendant’s Motion for Summary Judgment (ECF No. 93) is DENIED
WITHOUT PREJUDICE with leave to re-file in accordance with Local
Rule 56.2.

Plaintiff’s Cross-Motion (ECF No. 105) is, likewise,

DENIED WITHOUT PREJUDICE TO RENEW.
IT IS FURTHER ORDERED, that on or before July 21, 2023
and after consulting with Plaintiff, Defendant shall file a letter
with this Court proposing a new briefing schedule on a renewed
motion for summary judgment or otherwise informing the Court how

7

Case 2:15-cv-01035-JS-JMW Document 110 Filed 07/10/23 Page 8 of 8 PageID #: 2230

the parties wish to proceed with this case. 3

The parties are

further directed to detail all settlement efforts entered into
thus far, and whether the parties are amenable to referral to
mediation.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: July 10, 2023
Central Islip, New York

Should Plaintiff require assistance in properly responding to a
renewed summary judgment motion he may contact the Hofstra
University Pro Se Legal Assistance Program, located within the
Central Islip Courthouse, at [phone] or [e-mail].
3

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