Timsina et al v. United States of America
Filing
63
OPINION AND ORDER granting in part and denying in part 57 Defendant's Motion to Strike; granting 10 Defendant's Motion for Summary Judgment; denying Plaintiffs' request for additional Discovery. Signed by Judge Christina Reiss on 7/19/2019. (jbr)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
SOM N. TIMSINA, BHAKTI R. ADHIKARI, and
CENTRAL MARKET WINOOSKI, LLC,
Plaintiffs,
V.
UNITED STATES OF AMERICA,
Defendant.
)
)
)
)
)
)
)
)
)
)
21H JUL 19 PM 12: 51
CLERK
Case No. 2:17-cv-00126
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO STRIKE AND GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
(Docs. 10 & 57)
Plaintiffs Som N. Timsina, Bhakti R. Adhikari, and Central Market Winooski,
LLC ("Central Market") (collectively, "Plaintiffs") bring this action pursuant to 7 U.S.C.
§ 2023(a)(13) and 7 C.F.R. § 279.7 seeking judicial review of the June 7, 2017 decision
by the United States Department of Agriculture (the "Agency") permanently
disqualifying Central Market from participation in the Supplemental Nutrition Assistance
Program ("SNAP"). Plaintiffs contend that the Agency and its subsidiary department, the
Food and Nutrition Service ("FNS"), improperly relied on computational analysis to
determine that Plaintiffs engaged in SNAP benefits trafficking at Central Market.
Pending before the court is Defendant United States of America's November 9,
2017 motion for summary judgment. (Doc. 10.) On January 12, 2018, Plaintiffs filed an
opposition and requested additional discovery pursuant to Fed. R. Civ. P. 56(d).
Defendant replied on March 14, 2018 and opposed Plaintiffs' Rule 56 discovery request.
At a hearing held on May 8, 2018, the court deferred consideration of the motion for
summary judgment and instructed Plaintiffs to identify the information that they sought
in discovery. On September 10, 2018, the court permitted the parties ninety days to
conduct limited discovery and granted the parties permission to file supplemental briefing
on the motion for summary judgment. On December 4, 2018, Plaintiffs filed a
supplemental response to the motion for summary judgment. On March 1, 2019, the
court took Defendant's motion for summary judgment under advisement.
Also pending before the court is Defendant's motion to strike Plaintiffs'
statements of undisputed material facts. (Doc. 57.) On March 11, 2019, Plaintiffs
opposed the motion. Defendant replied on March 14, 2019, at which time the court took
Defendant's motion to strike under advisement.
Plaintiffs are represented by Andrew Z. Tapp, Esq. and Kevin A. Lumpkin, Esq.
Defendant is represented by Assistant United States Attorney Melissa A. D. Ranaldo.
I.
Defendant's Motion to Strike.
Defendant moves to strike Plaintiffs' statement of undisputed material facts
because it fails to comply with the court's Local Rules and sets forth facts that are
disputed. There is no provision in the Federal Rules or this court's Local Rules allowing
a party opposing summary judgment to file its own statement of undisputed facts. See
Schroeder v. Makita Corp., 2006 WL 335680, at *4 (D. Vt. Feb. 13, 2006) (ruling that
"there is no need for [the party opposing summary judgment] to establish undisputed
facts at this stage of the litigation"). Instead, the Local Rules require a party opposing
summary judgment to submit "a separate, concise statement of disputed material facts."
L.R. 56(b) (emphasis supplied). The motion to strike Plaintiffs' statement of undisputed
facts is therefore GRANTED IN PART. The court will consider Plaintiffs' factual
submissions provided they are material, supported by admissible evidence, and
undisputed. See Boule v. Pike Indus., Inc., 2013 WL 711937, at *2 (D. Vt. Feb. 27,
2013); Post v. Killington, Ltd., 2010 WL 3323659, at* 1 n.1 (D. Vt. May 17, 2010).
Defendant also moves to strike Plaintiffs' supplemental response to Defendant's
statement of undisputed material facts on the grounds that it fails to comply with the
court's Local Rules. As Defendant points out, Plaintiffs were previously advised of the
necessity of filing a separate, concise statement of disputed facts and were granted ample
time with which to do so. Defendant asserts that although Plaintiffs' response "largely
admits that the material facts are undisputed," it qualifies many of the statements with
2
"lengthy discussions of Plaintiffs' interpretation of the facts, including assumptions,
conclusions, and arguments." (Doc. 57 at 4-5.) To the extent Plaintiffs' responses to
Defendant's statement of undisputed material facts are more properly characterized as
legal arguments, they will be disregarded because a legal argument cannot create a
disputed fact under Fed. R. Civ. P. 56. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242,248 (1986) ("Only disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment."). In addition,
the court will not search Plaintiffs' briefs for facts that are unsupported by record
references. See MacLeod v. Town ofBrattleboro, 2012 WL 1928656, at * 1 (D. Vt. May
25, 2012) ("[T]he court does not consider [p]laintiffs challenges to facts that are not
supported by references to the evidentiary record."). The Federal Rules of Civil
Procedure provide as follows:
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or other materials;
or (B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(l). To the extent Plaintiffs have failed to comply with this mandate,
their supplemental response is stricken. To the extent Plaintiffs' supplemental response
is supported by admissible evidence and record references, it will be considered.
Defendant's motion to strike Plaintiffs' supplemental response is thus GRANTED IN
PART and DENIED IN PART.
II.
Plaintiffs' Request for Additional Discovery.
In their supplemental response, Plaintiffs request additional discovery pursuant to
Fed. R. Civ. P. 56(d), contending that it has the potential to create a genuine issue of
material fact. Specifically, Plaintiffs claim they need to take the depositions ofFNS
agency officials and probe the investigative protocol for potential SNAP violations. "If a
nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present
3
facts essential to justify its opposition," the court may deny or defer the pending motion
for summary judgment, permit time for additional discovery, or issue another appropriate
order. Fed. R. Civ. P. 56(d).
At a hearing held on May 8, 2018 regarding Plaintiffs' prior Rule 56(d) request,
the court granted Plaintiffs' request for discovery prior to responding to Defendant's
motion for summary judgment, but declined to permit Plaintiffs to conduct discovery to
challenge the accuracy and validity of the Anti-Fraud Locator using Electronic Retailer
Transactions ("ALERT") system, concluding that a challenge to the SNAP enforcement
system was outside the scope of Plaintiffs' Complaint which challenged Plaintiffs'
disqualification as an approved SNAP retailer. Commencing on September 10, 2018,
Plaintiffs engaged in discovery over a ninety-day period. Thereafter, Plaintiffs obtained
written discovery related to Defendant's investigation, methods, policies, and procedures.
Plaintiffs did not take any depositions of customers and instead procured supplemental
affidavits from the same five customers who provided affidavits in the administrative
process. Thereafter, Plaintiffs were afforded well over a year to respond to Defendant's
November 9, 2017 motion for summary judgment.
In their supplemental response, Plaintiffs contend that discovery has been
"severely handicapped" because they have not been permitted to depose Agency officials
and employees who conducted the data analysis pertaining to this case. (Doc. 48 at 24.)
They contend that cross-examination of Agency officials rather than consulting their own
records would enable them to prevail in this case. To support their request, Plaintiffs cite
Sue Tha Lei Paw v. United States, 2018 WL 1536736, at *4 (S.D. Cal. Mar. 29, 2018)
and Rodriguez Grocery & Deli v. US., Dep't ofAgric. Food & Nutrition Serv., 2011 WL
1838290, at *5 (D. Md. May 12, 2011), two cases in which summary judgment was
denied in order to allow retailers to conduct discovery. However, in those cases, the
plaintiffs sought data matching the retailers' customers to the suspect transactions---
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?