BARNETT et al v. PLATINUM EQUITY CAPITAL PARTNERS II, L.P. et al

Filing 74

ORDER re 67 Notice, filed by PLATINUM EQUITY ADVISORS, LLC, regarding admissions under Rule 56(e).Signed by Magistrate Judge Lisa Pupo Lenihan on 2/28/19. (jer)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVID L. BARNETT and JAMES R.
WORKMAN, JR.,
Plaintiffs,
v.
PLATINUM EQUITY CAPITAL
PARTNERS II, L.P. t/d/b/a
STEELERS HOLDING CORP., et al.,
Defendants.

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Civil Action No. 2:16-cv-1668
Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER REGARDING DEFENDANT’S “NOTICE” OF
ADMISSIONS UNDER RULE 56(E)
LENIHAN, Magistrate Judge
In approximately one month following mid-November, 2018, the parties filed
extensive and in some cases unnecessarily redundant pleadings related to now pending
cross-motions for summary judgment. In particular, Plaintiffs have filed ECF Nos. 5154, being their Motion for Summary Judgment, Brief in Support, Concise Statement of
Material Facts, and Appendix thereto, respectively. Defendant elected to file a separate
series of summary judgment documents as to Plaintiff Barnett and Plaintiff Workman.
Thus, ECF Nos. 55-58 (Motion, Concise Statement, Appendix and Brief as to Workman)
and ECF Nos. 59-62 (the same as to Barnett). Plaintiffs’ filed a consolidated Brief in

Opposition to Defendant’s Motions for Summary Judgment at ECF No. 63,1 and
Defendant filed a Brief in Opposition to Plaintiff’s Motion for Summary Judgment at
ECF No. 64. Defendant also filed a Response to Plaintiff’s Concise Statement at ECF No.
65.
On December 31, 2018, Defendant filed a “Notice”, ECF No. 67, informing the
Plaintiffs and the Court that the facts contained in its Concise Statement in support of its
Motion for Summary Judgment were admitted by operation of law under Local Rule
56(e). Plaintiffs have since filed a Reply Brief on Summary Judgment, ECF No. 69, and a
Response to Defendant’s Notice, ECF No. 70. Defendant has filed a Reply as to its
Notice, ECF No. 71.
The Court observes that Local Rule 56 – like Fed. R. Civ. P. 56 - addresses the
procedures for motions for summary judgment. Local Rule 56(b) requires a moving
party to accompany its motion with a Concise Statement, a Memorandum in Support,
and an Appendix. Local Rule 56(c), “Opposition Requirements,” requires the filing of a
separately filed Concise Statement which responds to each numbered paragraph in the
moving party’s Concise Statement, a Memorandum in Opposition, and an Appendix.
And Local Rule 56(e), “Admission of Material Facts,” provides that alleged material
facts set forth and claimed to be undisputed in the moving or opposing party’s Concise

Plaintiffs noted that as Defendant made the same argument as to both Plaintiffs’
claims, “rather than file virtually identical briefs in opposition, Plaintiff’s [would], to
conserve their and judicial resources, file [a] joint memorandum in opposition.” ECF
No. 63 at n. 1.
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Statement “will for the purpose of deciding the motion for summary judgment be
deemed admitted unless specifically denied or otherwise controverted by a separate concise
statement of the opposing party.” Local Rule 56 (emphasis added).
The Court observes that the Local Rule provides no further express direction as
to appropriate procedures regarding necessary and efficient pleadings practice for
cross-motions for summary judgment. Plaintiffs assert, in essence, that they have
sufficiently controverted disputed facts in the “separate concise statement” filed in
support of their Motion for Summary Judgment. Defendant asserts, in essence, that
Plaintiffs failed to comply with Local Rule 56(c) by failing to file an additional concise
statement specifically in opposition to Defendants’ dual Motions for Summary
Judgment, and comporting with the numbered paragraph correspondence required.
Defendant further asserts that this non-compliance with Rule 56(c) effects a blanket and
default admission of the alleged facts in Defendant’s Concise Statement pursuant to
Local Rule 56(e). The Court writes to reject this assertion.
The Court concurs that Plaintiffs have not filed a concise statement in opposition
in the form specified by Local Rule 56(c)(1), the purpose of which required statement is
to identify to the Court the parties’ positions on the “material facts . . . necessary for the
Court to determine the motion for summary judgment.” Local Rule 56(c)(3). Plaintiffs
have, however, responded in opposition to Defendant’s Motion and have filed a crossmotion for summary judgment, together with a “separate concise statement” which

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specifically “controvert[s]” disputed facts. See Local Rule 56(e).2
The Court finds that under the plain language of Local Rule 56, a technical noncompliance with subsection (c) does not work a deemed admission of “otherwise
controverted” facts set forth in an opposing party’s “separate concise statement”. The
Court further finds that in these circumstances, and particularly in light of the parties’
recent pleadings, requiring Plaintiffs to file another “concise statement” with factual
assertions rearranged to comport with Defendant’s numbering, would quite literally
place form over substance. The “very mission of the summary judgment procedure is
to pierce the pleadings to assess the proof in order to see whether there is a genuine
need for trial,” Rule 56 – Notes of Advisory Committee on Rules – 1963 Amendment, a goal
to be accomplished with due regard for the parties’ litigation costs and judicial
resources; Plaintiff’s Response, ECF No. 71, at 3 (purpose of response to statement of
facts is “so that the Court will know what facts are disputed and which are not”). See
also Committee Notes on Rules – 2010 Amendment (noting that a court’s “choice among
possible orders [under (e)(4)] should be designed to encourage proper presentation of
the record”).3 See generally Fed. R. Civ. P. 1 (“[Rules] should be
Compare Stanton v. Britton, 2013 WL 622607 at n. 1 (W.D. Pa. Jan. 25, 2013) (finding
deemed admission in pro se prisoner’s case premised on temporary ban of mother’s
visitation where two years after initiation of suit, plaintiff failed to identify Doe
defendants, and “failed to respond to the pending motion for summary judgment or file
a counter statement of material facts”).
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Cf. Fed. R. Civ. P. 56(e)(providing that if a party fails to properly address another’s
assertion of fact as required by the Rule, the court may provide “an opportunity to
properly” do so, “consider the fact undisputed . . . [or] “issue any other appropriate
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construed and administered to secure the just, speedy, and inexpensive determination
of every action and proceeding.”).
Accordingly, the Court ORDERS that, Defendant’s Notice to the contrary (ECF
No. 67) notwithstanding, no facts set forth in Defendant’s Statements of Material Facts
are “deemed admitted” by “operation of Local Rule 56(E)”, as the Court finds that
Plaintiffs’ existing separate filings, including its Concise Statement, present the material
facts in dispute.

Dated: February 28, 2019

BY THE COURT:

__/s/Lisa Pupo Lenihan_________
LISA PUPO LENIHAN
United States Magistrate Judge
cc:

All Counsel of Record
Via Electronic Mail

order”); Committee Notes on Rules – 2010 Amendment (noting that under the Federal
Rules “[s]ubdivision (e)(2) authorizes the court to consider a fact as undisputed . . .
when response or reply requirements are not satisfied . . . reflect[ing] the ‘deemed
admitted’ provisions in many local rules . . . And the court may choose not to consider
the facts as undisputed, particularly if the court knows of record materials that show
grounds for genuine dispute.”); Fed. R. Civ. P. 56(c)(3); Committee Notes on Rules – 2010
Amendment (noting provision “reflects . . . local rules provisions stating that the court
may decide a motion for summary judgment without undertaking an independent
search of the record” but “[n]evertheless . . . also recognizes that a court may consider
record materials not called to its attention by the parties”).
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