United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION FOR LEAVE OF COURT TO FILE THEIR MOTION FOR SUMMARY
Gail Dein, United States Magistrate Judge
matter is before the court on “Defendants' Motion
for Leave of Court to File Their Motion for Summary Judgment
Late.” (Docket No. 36). Plaintiff has opposed the
motion both on procedural grounds as well as on the grounds
of futility. (Docket No. 39). For the reasons detailed
herein, the defendants' motion is DENIED.
order of the court dated October 19, 2017, motions for
summary judgment were due 30 days after the final deposition
was completed. (Docket No. 32). The parties agree that the 30
day period was to run from the completion of the deposition
of the defendant Harvey Klinger on November 9, 2017.
(See Docket No. 36 at 1). Therefore, the summary
judgment motion was due to be filed with the court on
December 9, 2017. (Id. at 2). While the defendants
apparently had at least a draft of the motion prepared in
November, according to their unverified motion, they did not
seek leave of court to file the motion for summary judgment
late until January 11, 2018. (See id. at 2). There
is no explanation for any delay beyond December 9, 2017
contained in defendants' motion. (Id. at 3).
They have failed to establish good cause for the delay, and
this court finds the motion to be untimely. See L.R.
16.1(g) (scheduling order can be modified only by order of
the court “and only upon a showing of good cause
supported by affidavits, other evidentiary materials, or
references to pertinent portions of the record.”).
motion for leave to file the motion for summary judgment late
is denied for the additional reason that it is not in proper
form so as to enable the plaintiff to respond in an orderly
fashion. “The role of summary judgment is ‘to
pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.'” PC
Interiors, Ltd. v. J. Tucci Constr. Co., 794 F.Supp.2d
274, 275 (D. Mass. 2011) (quoting Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 822 (1st Cir. 1991)) (additional
citation omitted). The burden is on the moving party to
identify “each claim or defense - or the part of each
claim or defense - on which summary judgment is sought[,
]” and to show “that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“Conventional summary judgment practice requires the
moving party to assert the absence of a genuine issue of
material fact and then support that assertion by affidavits,
admissions, or other materials of evidentiary quality.”
Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19
(1st Cir. 2003).
Rule 56.1, which governs cases filed in the United States
District Court for the District of Massachusetts, contains
express requirements for summary judgment motions. As Local
Rule 56.1 provides in relevant part:
Motions for summary judgment shall include a concise
statement of the material facts of record as to
which the moving party contends there is no genuine issue to
be tried, with page references to affidavits, depositions and
other documentation. Failure to include such a
statement constitutes grounds for denial of the
motion. ... Copies of all referenced documentation
shall be filed as exhibits to the motion or opposition.
(Emphasis added). This court's scheduling orders further
require that “[a]ny concise statement of material facts
that is filed pursuant to Local Rule 56.1 in opposition to a
motion for summary judgment shall include numbered paragraphs
admitting or denying, paragraph by paragraph, the facts
contained in the moving party's concise statement of
material facts.” (See, e.g., Docket
No. 18). This procedure enables the court to readily
ascertain whether there are material facts in dispute.
instant case, the defendants have not provided a concise
statement of material facts to which the plaintiff can
respond. Moreover, many of the so-called “facts”
are actually inferences that the defendants are asking the
court to make based on unexplained documents. For example,
defendants asserted that “Ms. Crowe kept defendants in
the dark about deals she was working on and delayed
completing deals where offers had been made, so that she
could move those deals to Pippin.” (Defs. Proposed Mem.
(Docket No. 37-1) at 3). The cited exhibits consist of an
email that post-dates the plaintiff's departure from the
Klinger Agency (Ex. 7) and a draft document, which is dated
before her departure but is unsigned. (Ex. 8). It is a leap
for this court to be able to conclude that the plaintiff
wrongfully solicited clients based on such unexplained
documents. The absence of a concise statement of material
facts to which the plaintiff can respond precludes the court
from determining whether there are material facts in dispute.
As stated in Local Rule 56.1, the failure to provide such a
statement “constitutes grounds for denial of the
and most importantly, the motion for leave to file the motion
for summary judgment late is denied because the defendants
have failed to establish that the critical issues are
undisputed. The plaintiff denies that “prior to her
resignation, Crowe solicited business from the authors who
chose to move with her to Pippin[.]” (Docket No. 39 at
4). In addition, there does not appear to be any evidence in
the summary judgment record “that any of the deals not
closed could, or would, have been closed while Crowe still