SMITH v. BANK OF STANLY

Filing 28

MEMORANDUM OPINION & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Signed by MAG/JUDGE L. PATRICK AULD on 2/11/2011, recommending that Defendant's Motion forSummary Judgment (Docket Entry 22 ) be GRANTED, but that, in disposing of Plaintiff& #039;s claims, the judgment reflect that Plaintiff's Title VII and ADA claims for events prior to March 26, 2008, are dismissed for lack of subject matter jurisdiction, rather than on the merits. Futher, it is recommended that Defendant's M otion for Judgment on the Pleadings (Docket Entry 12 ) be DENIED AS MOOT. It is further recommended that, for reasons set forth above, supra, pp. 72-73 n.53, Plaintiff and Plaintiff's counsel, Bruce M. Simpson of James, McElroy & Diehl, P.A., b e ordered to show cause why the Court should not sanction one or both of them pursuant to this Court's Local Rule 83.4(a) for violating: 1) Local Rule 7.2(a)(2) by including in Plaintiff's summary judgment response brief a statement of fact asserting that Defendant's "story of adulterous bathroom sex has been fabricated to try to justify further punishment calculated to eliminate its sole female Branch Manager/Vice President" (Docket Entry 26 at 13), without any citati on to the record and in the absence of any apparent evidentiary basis; and 2) Local Rule 26.1(b)(1) by behaving in an unduly argumentative and sarcastic manner during Plaintiff'sdeposition (Docket Entry 26 4 at 10; Docket Entry 26 -8 at 7). (Daniel, J)