Stovall v. Settle et al

Filing 25

ORDER Striking Amended Document (D.E. # 22). Signed by Judge S. Thomas Anderson on 9/27/11. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
CYNTHIA STOVALL,

)
)
Plaintiff,
)
)
v.
)
No. 10-2388-STA-dkv
)
DEWUN SETTLE; WALTER EVANS; )
KENNY ARMSTRONG; and the
)
SHELBY COUNTY GOVERNMENT, )
)
Defendants.
)
______________________________________________________________________________
ORDER STRIKING AMENDED DOCUMENT
______________________________________________________________________________
Before the Court is Plaintiff’s Amended Document (D.E. # 22), filed September 19,
2011. For the following reasons, Plaintiff’s Amended Document is hereby STRICKEN from
the record.
BACKGROUND
On July 29, 2011, Defendant Shelby County Government filed a Motion for Summary
Judgment (D.E. # 17). On September 8, 2011, this Court issued an Order continuing the pre-trial
conference and the non-jury trial “to allow the Court to consider and decide Defendants’
dispositive motion.” (D.E. # 18.) Five days later, on September 13, 2011, Plaintiff filed a First
Motion to Continue the Trial Date and for a Continuance of Discovery (D.E. # 19) (“Motion to
Continue Trial and Discovery), which this Court denied on September 16, 2011 (D.E. # 21).
In his Motion to Continue Trial and Discovery, Counsel for Plaintiff attached a 124-page
“Exhibit Collection,” consisting of a copy of his Motion to Continue Trial and Discovery, a web
printout of an article from The Commercial Appeal, the 54-page deposition of Mr. Dewun Settle,

and the 64-page deposition of Ms. Wanda Wright. Counsel did not provide a Memorandum of
Law as required by Local Rule 7.2(a)(1), nor did he call the Court’s attention to specific
passages within the 119 pages of depositions in support of his motion.1 After the Court denied
his Motion to Continue Trial and Discovery, Plaintiff filed the Amended Document now before
the Court. While Plaintiff drew the Court’s attention to specific pages of his Exhibit Collection
filed with his Motion to Continue Trial and Discovery, he did not provide a Memorandum of
Law as required by Local Rule 7.2(a)(1). Defendants filed a Response to Plaintiff’s Document
22 Filed on September 19, 2011, “respectfully submit[ting] that the Court should deny Plaintiff’s
request for a ‘continuance of discovery.’” (D.E. # 23.)
LAW
The Federal Rules of Civil Procedure “govern the procedure in all civil actions and
proceedings in the United States district courts.”2 In civil actions filed under these rules, “[a]
request for a court order must be made by motion.”3 Motions under the Federal Rules of Civil
Procedure “must be in writing . . ., state with particularity the grounds for seeking the order, and
state the relief sought.”4 The Local Rules for the Western District of Tennessee provide that
acceptable motions in civil cases are only “those . . . accompanied by a supporting memorandum
of facts and law (so identified).”5 Local rules exist to guide parties in their identification of
1

In the first paragraph of his Motion to Continue Trial and Discovery, Counsel
selects specific statements from the depositions without reference to where in the depositions the
facts arose. In his Amended Document, while Counsel does identify the specific pages of the
deposition to which he is referring, he failed to attach a memorandum of law.
2

Fed. R. Civ. P. 1.

3

Fed. R. Civ. P. 7(b)(1).

4

Fed. R. Civ. P. 7(b)(1)(A-C).

5

Local Rule 7.2(a)(1).

specific facts to present to the court,6 and the Western District of Tennessee employs such a rule
for such a purpose.7
Moreover, at summary judgment, “[a] district court is not required to speculate on which
portion of the record [a] party relies, nor is it obligated to wade through and search the entire
record for some specific facts that might support [a] party’s claim.”8 Thus, a court is not
required to pour through documents at summary judgment when a party does not direct the
court’s attention to any specific statements or passages in support of its motion. While the Sixth
Circuit does not require the designation of specific page numbers, parties are required to “point
out the location” of the statements “with enough specificity that the district court can readily
identify the facts upon which the . . . party relies.”9 District courts are not obligated to comb “the
entire record” to establish the absence or existence of a genuine issue of material fact at
summary judgment.10 The Western District of Tennessee acknowledges this lack of obligation
by requiring facts mentioned in motions under Rule 56 to be “supported by specific citation to
the record.”11
ANALYSIS
The Court has previously noted that “[t]he procedural posture of this case opens

6

See Southwick v. Russell Stover Candies, Inc., No. 05-0050, 2007 WL 776496, at
*9 (M.D. Tenn. Mar. 9, 2007) (“This notice can be adequately accomplished through a local
court rule or a pretrial order.”).
7

See Local Rule 7.2(a)(1).

8

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).

9

Anderson v. Vanderbilt Univ., No. 09-0095, 2010 WL 2196599, at *9 (M.D.
Tenn. May 27, 2010).
10

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989).

11

Local Rule 56.1(a).

Plaintiff’s Motion to two different interpretations.”12 The Court noted that the Motion could be
construed as applying under Rule 16 or Rule 56.13 As Counsel has not identified under which
Rule of Procedure he has filed these motions, the Court remains uncertain as to whether
Counsel’s Motion to Continue Trial and Discovery and his Amended Document are motions
under Rule 16 or Rule 56. While Defendants have interpreted Counsel for Plaintiff’s Amended
Document as “a request for reconsideration of [the] motion to continue discovery,” Defendants
fail to state whether Plaintiff’s Motion to Continue Trial and Discovery and Amended Document
should be interpreted under Rule 16 or Rule 56.14
If the Motion to Continue Trial and Discovery and the Amended Document are filed
under Rule 56(d), rendering applicable Local Rule 56.1's requirement of “specific citation to the
record,” the Motion to Continue Trial and Discovery is deficient because it contains no specific
citations to the record. However, the Amended Document satisfies that requirement, as it
contains specific references to depositions in the Exhibit Collection.
But as with Plaintiff’s Motion to Continue Trial and Discovery, it does not matter
whether Counsel for Plaintiff filed the Amended Document under Rule 16 or 56. Both the
Motion to Continue Trial and Discovery and the Amended Document are deficient under the
Federal Rules of Civil Procedure because they do not “state with particularity the grounds for
seeking the order”15 and because they are not accompanied by memoranda of law.16
12

(Order Finding Pl.’s Mot. for Continuance of the Trial Date as Moot and Denying
Pl.’s Mot. for a Continuance of Disc. at 2.)
13

(Id.)

14

(Def’s Resp. to Pl.’s Doc. 22 filed on Sept. 19. 2011 at 2.)

15

Fed. R. Civ. P. 7(b)(1)(B).

16

Local Rule 7.2(a)(1).

Counsel’s Amended Document has failed to comply with either the Federal Rules of
Civil Procedure or the Local Rules. Counsel has not “stated with particularity the grounds for
seeking the order;”17 in fact, he has not cited the Rule of Civil Procedure under which he filed
the Amended Document, nor has he “state[d] the relief sought.”18 Additionally, Counsel’s
Amended Document is deficient under Local Rule 7.2(a)(1), as it does not contain even a mere
scintilla of citation to relevant law. Nor does it contain a certificate of consultation, as required
by Local Rule 7.2(a)(1)(B) or a certificate of service, as required by Local Rule 7.2(a)(1). The
Court finds Counsel’s Amended Document to be irregular, ill-conceived, and not provided for
under the Federal Rules of Civil Procedure or the Local Rules.
Moreover, Counsel has stated that the court should either “read the record” or “assign
this matter to another judge.” The Court notes that it is under no obligation to perform Counsel’s
work when Counsel either fails or refuses to file documents with the Court that comply with the
Local Rules and the Federal Rules of Civil Procedure. The Court will not transfer the case, and
Counsel is cautioned that the Court will not tolerate any further statements by Counsel that
appear on their face to be insolent, unfounded, and unprofessional.19 To that end, Counsel is

17

See Fed. R. Civ. P. 7(b)(1)(B).

18

See Fed R. Civ. P. 7(b)(1)(C). Counsel has requested for the Court to “[w]ait for
Mr. McLean to respond to the Motion for Continuance” or for the Court to “assign this matter to
another judge.” (Am. Doc. at 2.) However, the Court has already denied Counsel’s Motion for
Continuance, and as discussed below, the Court will not transfer the case.
19

Counsel states that “[t]he Court is mistaken” when it stated in its order that
Plaintiff requested the initial continuance. (Order Finding Pl.’s Mot. for Continuance of the
Trial Date as Moot and Denying Pl.’s Mot. for a Continuance of Disc. at 1.) Counsel avers that
“Mr. McLean requested the continuance and the Court graciously granted it.” (Am. Doc. at 1.)
In its Order Finding Plaintiff’s Motion for a Continuance of the Trial Date as Moot, this Court
said:
Plaintiff’s Motion requests a continuance of the trial date, which had been set for
September 26, 2011. However, the Court has already continued both the pretrial

directed to familiarize himself with Appendix C of the Local Rules, which governs Professional
Courtesy and Conduct.20 Counsel is further advised that any future filings that do not comport
with the Federal Rules of Civil Procedure or the Local Rules of Court will be treated as
deliberate and intentional attempts by Counsel to circumvent the Rules.21 Such filings will be
dealt with accordingly.
Thus, for the foregoing reasons, Counsel for Plaintiff’s Amended Document is hereby
STRICKEN from the record.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: September 27, 2011.

conference, which was set for September 11, 2011, as well as the non-jury trial,
“to allow the Court to consider and decide Defendants’ dispositive motion.”
(D.E. # 18.) Accordingly, as the Court has previously granted Plaintiff’s
requested relief, Plaintiff’s Motion for Continuance of the Trial Date is found to
be MOOT.
Thus, the Court continued trial of its own initiative and not on the request of either party, despite
the ambiguous wording of the Court’s order.
20

Appendix C reminds those lawyers admitted to practice in the Western District of
Tennessee that “[a] lawyer owes to the judiciary a duty of candor, honesty, diligence, and utmost
respect.”
21

The Court notes that Counsel for Plaintiff called chambers during the afternoon of
September 21, 2011. Counsel requested the Court to read an article in that day’s newspaper and
to contact opposing counsel to request him to review the same newspaper article. However, such
requests are inappropriate, unacceptable, and will not be tolerated in the future.