Fitzen et al v. Artspace Affordable Housing et al
Filing
107
MEMORANDUM DECISION granting 98 Motion for Summary Judgment ; denying 105 Motion to Strike ; denying 106 Motion for Extension of Time. Signed by Judge Ted Stewart on 1/29/13. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JOHN FITZEN and MARIA FITZEN
Plaintiffs,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT, DENYING
PLAINTIFFS’ MOTION TO STRIKE,
AND DENYING PLAINTIFFS’
MOTION FOR AN EXTENSION OF
TIME
vs.
ARTSPACE AFFORDABLE HOUSING ,
L.P.; ARTSPACE RUBBER COMPANY,
L.C.; EVERGREEN MANAGEMENT
GROUP, LLC; THE LAW OFFICES OF
KIRK A. CULLIMORE, LLC;
Case No. 2:09-CV-470
Defendants.
This matter is before the Court on Defendant The Law Offices of Kirk A. Cullimore,
LLC’s (“The Law Offices”) Motion for Summary Judgment. Also before the Court are
Plaintiffs’ Emergency Motion to Strike Defendant’s Motion for Summary Judgment and
Plaintiffs’ Motion to Clarify and/or Extend the Time for Plaintiffs to Respond to Defendant’s
1
Motion for Summary Judgment. For the reasons discussed below, the Court will deny Plaintiffs’
Motions and grant Defendant’s Motion for Summary Judgment.
I. PROCEDURAL HISTORY
In its May 10, 2012 Memorandum Decision and Order, this Court found that the only
remaining issue over which the Court has independent subject matter jurisdiction is Plaintiffs’
claim under the Fair Debt Collection Practices Act (“FDCPA”), although the Court noted that it
might have pendant jurisdiction over the remaining claims.1 This Court additionally held that
Plaintiffs had only properly alleged a claim for violation of the FDCPA against The Law Offices
and against Kirk Cullimore as an individual.2 As Defendants had not argued that any of
Plaintiffs’ other claims were deficient, the Court declined to consider them at that time.3 On July
19, 2012, this Court granted Defendants’ motion to dismiss with respect to Defendant Kirk A.
Cullimore,4 leaving The Law Offices as the only remaining Defendant with respect to Plaintiffs’
FDCPA claim.
On December 28, 2012, the cutoff date for filing a dispositive motion, The Law Offices
filed a Motion for Summary Judgment on Plaintiffs’ FDCPA claim.5 Although the Motion was
properly filed on December 28, 2012, the exhibits in support of the Motion were not filed until
1
Docket No. 89, at 2.
2
Id. at 5.
3
Id. at 5 n.19.
4
Docket No. 92, at 2.
5
Docket No. 98.
2
January 3, 2013.6 On January 28, 2013, Plaintiffs filed their Emergency Motion to Strike
Defendants’ Motion for Summary Judgment and their Motion to Clarify and/or Extend the Time
for Plaintiffs to Respond to Defendants’ Motion for Summary Judgment.
II. DISCUSSION
A.
MOTION TO STRIKE
Plaintiffs’ Motion to Strike argues that because Defendant failed to file its exhibits in
support of its Motion for Summary Judgment by the cutoff date for dispositive motions, the
Court must strike Defendant’s Motion. This argument is without merit. Plaintiffs cite no
authority for their proposition that the late filing of evidence in support of Defendant’s Motion
changes the effective filing date of the Motion.
Instead, Plaintiffs might properly argue that Defendant’s exhibits should be stricken and
that the Court should disregard the exhibits in its consideration of Defendant’s Motion.
However, this type of Motion to Strike is not proper under the local rules. Under DUCivR 71(b)(1)(B) such evidentiary objections must be included in a response memorandum or in a
separate document filed in conjunction with the response memorandum. A filing of a Motion to
Strike does not supplant Plaintiffs’ obligation to file their opposition to Defendant’s Motion for
Summary Judgment.
Although Plaintiffs have styled their Motion to Strike as an “Emergency Motion,” the
Court cannot discern any facts supporting an emergency. Plaintiffs have failed to allege any
surprises or unexpected circumstances. Instead, Plaintiffs simply point to the fact that
6
Docket No. 99.
3
Defendant’s exhibits were filed on January 3, 2013, twenty-five days before Plaintiffs’ Motion to
Strike. However, these late exhibits do not contain any information of which Plaintiffs were
unaware. Instead, six of Defendant’s seven exhibits are documents that were filed in a related
state court action to which Plaintiffs were parties: (1) the state court complaint; (2) excerpts from
the docket; (3) the court’s findings of fact and conclusions of law; (4) the judgment and order; (5)
the order of restitution; and (6) the stipulation and confession of judgment.7 The seventh exhibit
is the notice to comply or vacate that was served on Plaintiffs.8 Each of these exhibits is
described in Defendant’s Motion for Summary Judgment. In light of these facts, it does not
appear to the Court that Plaintiffs are prejudiced in any way by the late filing of the exhibits.
As Plaintiffs’ Motion to Strike is procedurally improper and otherwise without merit, it
will be denied.
B.
MOTION TO CLARIFY
Although Plaintiffs’ memorandum in opposition to Defendant’s Motion for Summary
Judgment was due on January 28, 2013, Plaintiffs have failed to file their memorandum. Instead,
moments before the filing deadline on the eve of the hearing set for the Motion, and mere days
from trial in this matter, Plaintiffs’ request an extension of time. The only reason that Plaintiffs
cite is the late filing of Defendant’s exhibits. As discussed earlier, the late filing of the exhibits
has not prejudiced Plaintiffs in any way. Plaintiffs already had access to and knowledge of all of
the information contained in those exhibits. The propositions the exhibits were intended to
7
Docket No. 99.
8
Id.
4
support were adequately described in Defendant’s Motion.
Although the timing of Defendant’s filing had been known to Plaintiffs for twenty-five
days, Plaintiffs elected to wait until the last minute possible to file their Motions. As the Court
can find no proper reason for this timing, it seems that Plaintiffs’ purpose must be delay and
surprise. Plaintiffs’ Motions were filed one day before the hearing set for the Motion for
Summary Judgment and two weeks before the trial date. Plaintiffs seek to push its response back
one week, leaving the parties and the Court only one week to prepare for trial. Finding no basis
for an extension of time, the Court will deny Plaintiffs’ Motion.
C. MOTION FOR SUMMARY JUDGMENT
In its Motion for Summary Judgment, Defendant asserts that Plaintiffs have not provided
any evidence in support of their FDCPA claim. Plaintiffs have not filed a memorandum in
opposition to Defendant’s Motion or otherwise filed any affidavits containing evidence sufficient
to meet their burden of proof at trial.
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.9
Additionally, under DUCivR 56-1(f), “[f]ailure to respond timely to a motion for
summary judgment may result in the court’s granting the motion without further notice.”
Reviewing Defendant’s Motion, the Court finds that Defendant is entitled to summary
judgment unless Plaintiffs can provide evidence to the contrary. As Plaintiffs have not responded
9
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
5
to Defendant’s Motion for Summary Judgment or otherwise supplied the Court with evidence
beyond the allegations contained in their pleadings, the Court will grant Defendant’s Motion for
Summary Judgment on Plaintiffs’ claims under the FDCPA. The Court does not have
independent jurisdiction over the remaining state law claims, and declines to exercise
supplemental jurisdiction.10 Therefore, the remaining claims will be dismissed without prejudice
to Plaintiffs bringing their claims in a court with appropriate jurisdiction.
III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motion to Strike Defendants’ Motion for Summary Judgment
(Docket No. 105) is DENIED. It is further
ORDERED that Plaintiffs’ Motion to Clarify and/or Extend the Time for Plaintiffs to
Respond to Defendants’ Motion for Summary Judgment (Docket No. 106) is DENIED. It is
further
ORDERED that Defendant’s Motion for Summary Judgment (Docket No. 98) is
GRANTED. The Clerk of the Court is directed to enter judgment in favor of Defendant The Law
Offices of Kirk A. Cullimore and against Plaintiffs on Plaintiffs’ claim under the FDCPA, and to
close this case forthwith.
10
See 28 U.S.C. § 1367(c).
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DATED January 29, 2013.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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