MONTGOMERY v. CITY OF PITTSBURGH

Filing 55

MEMORANDUM ORDER entered after de novo review 1) granting 27 defendant's motion for summary judgment, 2) overruling 51 the Objections filed by KIM MONTGOMERY to 48 the REPORT AND RECOMMENDATION filed by the Magistrate Judge, and adopting 48 the Magistrate Judge's REPORT AND RECOMMENDATION as augmented in the MEMORANDUM ORDER as the opinion of the court. Signed by Judge David S. Cercone on 3/2/18. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KIM MONTGOMERY,
Plaintiff,

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vs
CITY OF PITTSBURGH,
Defendant.

2:16cv248
Electronic Filing

MEMORANDUM ORDER
AND NOW, this 2nd day of March, 2018, upon due consideration of 1) defendant City of
Pittsburgh's motion for summary judgment and the parties' submissions in conjunction therewith
and 2) the Report and Recommendation of the Magistrate Judge addressing the same and the
parties' submissions in conjunction therewith, and after de novo review of the record, IT IS
ORDERED that [27] defendant's motion for summary judgment be, and the same hereby is,
granted. The [48] Report and Recommendation of the Magistrate Judge as augmented therein is
adopted as the opinion of the court.
Plaintiff's objections are without merit. Plaintiff's obligation at the pleading stage is to set
forth factual averments that advance a plausible showing pursuant to a cognizable legal theory of
entitlement to redress. Plaintiff's obligation at summary judgment is to identify sufficient
evidence to permit a jury to find all of the elements in plaintiff's favor under a cognizable legal
theory of entitlement to redress. Plaintiff is not a liberty to pick and choose tenants and doctrines
from various separate and distinct theories of recovery developed under a broad remedial
statutory scheme and then cobble them together in an incoherent fashion. Any attempt to do so,
such as that which plaintiff has attempted here, falls short of meeting the showing needed to
defeat a movant's adequate initial showing under Rule 56. Consequently, defendant's motion for
summary judgment has been granted; and

IT FURTHER IS ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure if plaintiff desires to appeal from this Order she must do so within thirty
(30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P.

s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge

cc:

The Honorable Robert C. Mitchell,
United States Magistrate Judge
Joel S. Sansone, Esquire
Elizabeth Tuttle, Esquire
Massimo A. Terzigni, Esquire
Lourdes Sanchez Ridge, Esquire
Matthew S. McHale, Esquire
(Via CM/ECF Electronic Mail)

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