UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JAMES F. MACKEY, JR., Plaintiff, v. CIVIL ACTION NO. 15-12173-MBB TOWN OF TEWKSBURY, et al., Defendants. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S AFFIDAVIT (DOCKET ENTRY # 82); DEFENDANTS’ MOTION TO STRIKE AND/OR DEEM DEFENDANTS’ FACTS ADMITTED (DOCKET ENTRY # 91); CROSS-MOTION TO DEEM PLAINTIFF’S STATEMENT OF ADDITIONAL MATERIAL FACTS ADMITTED (DOCKET ENTRY # 93) January 7, 2020 BOWLER, U.S.M.J. Pending before this court are two motions to strike various portions of the summary judgment record with respect to a motion for summary judgment filed by defendants.1 (Docket Entry ## 82, 91). Defendants filed both motions to strike (Docket Entry ## 1 Defendants consist of: the Town of Tewksbury; the Tewksbury Police Department (“TPD”); Tewksbury Police Chief Timothy Sheehan (“Chief Sheehan”); TPD Officers Michael McLaughlin (“Officer McLaughlin”), Markus McMahon (“Officer McMahon”), David Duffy (“Officer Duffy”), James Ryser, Eric Hanley, Albert Piccolo, Kimberly O’Keefe, James Griffin (“Officer Griffin”), Paul Nicosia, David Miano, James Hollis (“Officer Hollis”), Jason McNamara, Robert Bjokgren, Robert Field, and Alysia Russo (“Officer Russo”); TPD Sergeants Brian Warren, Daniel Kerber, Chris Coviello, Timothy Kelly, and Walter Jop, III; TPD Detectives Patrick Connor (“Detective Connor”), Patrick Regan (“Detective Regan”), Andrew Richardson (“Detective Richardson”), and Michael Donovan; and TPD Lieutenants Scott Gaynor and Robert Stephens. 82, 91), which plaintiff James F. Mackey, Jr. (“plaintiff”) opposes (Docket Entry ## 89, 93). Plaintiff also moves to deem his LR. 56.1 statement of additional facts admitted. (Docket Entry # 93). The rulings herein apply to the record before this court on defendants’ summary judgment motion (Docket Entry # 74). I. Motion to Strike Plaintiff’s Affidavit Defendants move to strike plaintiff’s 18-paragraph affidavit (Docket Entry # 81-1) on the basis that it contains legal conclusions as well as self-serving and conclusory statements. (Docket Entry # 82). Defendants also object to certain paragraphs on the basis that they include hearsay and that plaintiff lacks personal knowledge. (Docket Entry # 82). Defendants provide specific reasons tailored to ten of the 18 paragraphs and additionally seek to strike the affidavit in its entirety because of “the numerous defects.” (Docket Entry # 82).
Plaintiff, in turn, addresses eight of these ten paragraphs. (Docket Entry # 89). DISCUSSION “[U]nsupported, speculative assertions,” and conclusory statements in an affidavit submitted in opposition to summary judgment do not create a genuine or a material fact sufficient to warrant proceeding to trial. Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 315 (1st Cir. 2016); see Méndez-Aponte v. Bonilla, 645 F.3d 60, 68 (1st Cir. 2011) (“agree[ing] with the 2 district court that the plaintiffs’ . . . statement of contested material facts consist[s], in large part, of speculation and conclusory allegations for which the only evidentiary support is Méndez–Aponte’s sworn affidavit, which itself contains conclusory allegations”). Likewise, statements that amount to “mere unsupported characterizations,” personal opinions, or “subjective belief[s]” do not create a triable issue. Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 425 (1st Cir. 2017) (plaintiff “provides no detail and no support other than his subjective belief that he was being discriminated against by Costco”); Quinones v. Buick, 436 F.3d 284, 291 (1st Cir. 2006) (“mere unsupported characterizations” in affidavit “was not evidence creating a triable issue”). For example, affidavit statements reflecting a plaintiff’s “subjective speculation,” such as that another employee’s higher wages resulted from
discrimination, are improper. Quinones, 436 F.3d at 290 (discounting plaintiff’s affidavit which, “like his deposition testimony, reflects only Quinones’ subjective speculation and suspicion that Barnes’ greater earnings” resulted “from discrimination”). Similarly, plaintiff’s averments that the TPD “engaged in a campaign of harassment against” plaintiff, “repeatedly issued baseless criminal charges against” him, and “deployed an excessive amount of resources to try to arrest [him] on those charges” between 2012 and 2013 (Docket Entry # 81-1, ¶ 3 2) amounts to plaintiff’s subjective beliefs, personal opinions, and characterizations of the evidence that do not create a triable fact. Paragraph two is therefore stricken. A summary judgment affiant must also have personal knowledge for the statements offered. Fed. R. Civ. P. 56(c)(4); Santiago- Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000) (“affidavits submitted in opposition to” summary judgment motion that do not provide “specific factual information made on the basis of personal knowledge . . . are insufficient”). In addition, affidavit statements regarding the law and the plaintiff’s interpretation of the law are inappropriate. See Mancini v. City of Providence, by and through Lombardi, 282 F. Supp. 3d 459, 466 (D.R.I. 2017) (“First Circuit . . . consistently reject[s] conclusory affidavits that lack factual specificity and merely parrot the legal conclusions required by
the cause of action at the summary judgment stage”); Sarbanis v. Fed. Nat’l Mortg. Assen, No. 17-CV-037-JD, 2017 WL 3822034, at *1 (D.N.H. Aug. 30, 2017) (summary judgment “affidavit must state facts, not legal conclusions”). Simply stated, a plaintiff “may not rely upon [his or] her own interpretation of the law or the legal conclusions [he or] she wishes the Court to draw from the facts at hand.” Siupa v. Astra Tech, Inc., Civil Action No. 10-10525-LTS, 2013 WL 4854031, at *7 (D. Mass. Sept. 10, 2013) (striking statements in plaintiff’s “affidavit regarding what is 4 ‘required by Massachusetts law,’ and whether certain conduct amounts to ‘sexual harassment’”) (ellipses omitted). Finally, “It ‘is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted.’” Garcia-Garcia, 878 F.3d at 428 (internal citation and brackets omitted). Turning to the remaining paragraphs in numerical order, the statement in paragraph three that the TPD arrested plaintiff for not paying a cable bill “despite the fact that there was no court order telling me to do so” (Docket Entry # 81-1, ¶ 3, sent. 1) constitutes a personal, subjective opinion regarding the lack of support for the arrest. The subsequent statement by plaintiff as to what he said during the drive to the police station, however, is neither hearsay nor a personal opinion. It also provides notice to the police that nonpayment of a cable bill might not
violate the restraining order at issue. Plaintiff also has personal knowledge that “[t]he TPD placed [him] in handcuffs outside [his] parents’ home . . . .” (Docket Entry # 81-1, ¶ 3, sent. 2). Accordingly, the only portion of paragraph three stricken from the record is the above-quoted language, i.e., “despite the fact that there was no court order telling me to do so.” (Docket Entry # 81-1, ¶ 3, sent. 1). Defendants next object to paragraph four as hearsay. Plaintiff correctly points out that a statement “offered against 5 an opposing party” by plaintiff is not hearsay. See Fed. R. Evid. 801(d)(2). In the paragraph, plaintiff attests that he heard “the TPD officers” ask his father “to bring [plaintiff] outside” and state “they did not have a warrant.” (Docket Entry # 81-1, ¶ 4). The paragraph, however, does not identify the “TPD officers” referenced in the paragraph by name or otherwise provide a basis to ascertain whether one or more of these “TPD officers” is an opposing party such that Fed. R. Evid. 801(d)(2) applies. Detective Regan’s narrative report of the incident notes that Detective Richardson, an opposing party, observed plaintiff go into his father’s residence but otherwise only states that “Officers” approached the residence and that plaintiff’s father told them “they should get a Search Warrant.” (Docket Entry # 76-22). The second sentence in paragraph four starting with the word “could” is therefore stricken.2 (Docket
Entry # 81-1, ¶ 4, sent. 2). For similar reasons, the third sentence is stricken as hearsay. (Docket Entry # 81-1, ¶ 4, sent. 3). With respect to the remaining portion of paragraph four, plaintiff’s observation of his father not allowing the officers to enter the house is based on plaintiff’s personal knowledge and is not a statement within the meaning of the hearsay rule. See Fed. R. Evid. 801(a). Founded upon 2 In any event, even considering the statement as part of the summary judgment record, it does not alter the ruling on the summary judgment motion. 6 plaintiff’s observations, the rest of paragraph four remains in the summary judgment record. The same reasoning applies to the second sentence in paragraph eight, which contains double hearsay and is therefore stricken. Hence, even assuming “the TPD” refers to Officer Hollis or Officer Griffin, each an opposing party, the sentence includes Lisa Mackey’s statement that plaintiff “had not made the weekly support payment.” (Docket Entry # 81-1, ¶ 8, sent. 2). The first and third sentences of paragraph eight, which recount plaintiff’s observations and what plaintiff did, remain in the record. (Docket Entry # 81-1, ¶ 8, sent. 1, 3). The portion of the single sentence in paragraph six that subjectively characterizes Officer Griffin’s conduct as trying “to force his way into the house” is stricken as a personal opinion or subjective belief. The remaining portion that plaintiff opened the door and Officer Griffin pushed the door is
permissible. See Majahad v. Reich, 915 F. Supp. 499, 502 n.3 (D. Mass. 1996) (denying motion to strike affidavits as “meritless” because “affidavits are almost entirely based on direct personal observations”). Paragraph seven also depicts plaintiff’s personal observation that his daughter saw the event and his description of her as “visibly upset,” which therefore remains part of the summary judgment record. (Docket Entry # 81-1, ¶ 7). The additional subjective characterization of the reason for his daughter being upset, namely, “by the TPD’s use of force” is 7 stricken as a subjective characterization of the evidence. (Docket Entry # 81-1, ¶ 7). The clause at the end of the sentence in paragraph nine is stricken as a self-serving opinion or a characterization of the evidence. (Docket Entry # 81-1, ¶ 9). The remaining portion of the sentence is permissible after striking the word “still.” (Docket Entry # 81-1, ¶ 9). Paragraph ten is not stricken except for the word “baseless” because, as plaintiff notes, he simply attests that he did not receive notice of a hearing. (Docket Entry # 81-1, ¶ 10, sent. 1). Defendants object to paragraph 11 as hearsay. The first clause of the first sentence is not stricken whereas the remaining portion of the sentence beginning with the “the clerk informed me” is stricken as hearsay. (Docket Entry # 81-1, ¶ 11, sent. 1). The third sentence is stricken as hearsay. (Docket
Entry # 81-1, ¶ 11, sent. 3). As to the second sentence, the fact that plaintiff spoke with the clerk and the fact that the court recalled the default warrants is within plaintiff’s personal knowledge and not hearsay. (Docket Entry # 81-1, ¶ 11, sent. 2). Paragraph 16 recounts what plaintiff did; what he said to TPD officers, i.e., that they did not have permission to enter the premises; and what he observed, namely, that the officers stepped inside the premises. (Docket Entry # 81-1, ¶ 16). It 8 does, however, contain plaintiff’s personal characterization of the officer’s action as entering the premises “despite being told” about the lack of permission. (Docket Entry # 81-1, ¶ 16, sent. 2). Striking the word “despite,” the paragraph shall otherwise remain part of the summary judgment record. II. Motion to Strike Plaintiff’s Response and Statement Defendants next move to strike plaintiff’s LR. 56.1 response in its entirety, the cited exhibits, and the statement of additional facts and/or deem their statement of material facts admitted as noncompliant with LR. 56.1. (Docket Entry # 91). They also submit that even if this court considers plaintiff’s response and additional statement, the plaintiff still fails to identify a genuine dispute of material fact sufficient to avoid summary judgment in defendants’ favor. (Docket Entry # 91). The latter argument is addressed in the opinion on the summary
judgment motion. As to the former argument, defendants contend that the 72- page response to defendants’ 22-page LR. 56.1 statement of material facts (“SOMF”) and the 87 exhibits as well as the 90- page, 496-paragraph statement of additional facts are not “concise” within the meaning of LR. 56.1. The filing also fails to distinguish between general facts and material facts that are genuinely disputed, according to defendants. Moreover, the headings or captions in the statement of additional facts 9 purportedly show the legal nature of the additional “facts.”3 More specifically, defendants seek to strike on the basis of “non-compliance with [Local] Rule 56.1”: (1) paragraphs 45 to 78 of the additional statement as legal conclusions rather than facts; (2) responses two to ten and 23 as conclusory assertions, legal argument, and immaterial facts, even though labeled “undisputed”; and (3) responses 12, 13, 15, 17, 19 to 25, 27, 30 to 35, 37, 39 to 44, 46, 47, 50, 53, 55 to 58, 60, 63, 76, 80, 83, 221, and 223 to 232 as conclusory assertions, argument, immaterial facts, and self-serving characterizations.4 (Docket Entry # 91, p. 4). Plaintiff points out that this case necessitates the additional facts because it spans a three-year period, includes 29 defendants, implicates defendants’ state of mind, and involves multiple witnesses concerning 19 incidents. (Docket Entry # 93).
Plaintiff submits that LR. 56.1 “is very clear” that defendants’ failure to controvert his statement of additional facts results in deeming those facts admitted. (Docket Entry # 93). In addition to opposing defendants’ motion, plaintiff therefore 3 Plaintiff correctly points out that the captions are not facts and they merely provide organization to the multitude of facts. To the extent defendants seek to strike the captions, which is not the tenure of defendants’ argument, the motion is allowed. In ruling on the summary judgment motion, this court did not consider or rely upon any of the captions. 4 Defendants do not identify by number any other paragraphs in plaintiffs’ LR. 56.1 response or additional statement. 10 moves to deem his additional statement of material facts admitted. He points out that LR. 56.1 does not set a page or paragraph limit and maintains that his responses to defendants’ SOMF and his additional statement of facts are well-organized and supported with citations to the record. He further maintains that defendants omit “key material facts” from their SOMF, which necessitates more extensive responses and the additional statement. (Docket Entry # 93, p. 5). As an example, plaintiff identifies facts set out in his response to paragraph 116 of defendants’ SOMF and paragraph 325 in his additional statement as evidencing that defendants intentionally omitted material facts. (Docket Entry # 93, pp. 5-6). Plaintiff additionally maintains that various exhibits, consisting of Massachusetts General laws chapter 209A (“chapter 209A”) and cases referenced in paragraphs 45 to 78 of his additional statement, are appropriate because of
qualified immunity issues and identical, internal TPD policies. (Docket Entry # 93, p. 8). DISCUSSION District courts “‘enjoy broad latitude in’” administering and enforcing local rules. NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 6 (1st Cir. 2002) (internal citation omitted); United States v. Diaz-Villafane, 874 F.2d 43, 46 (1st Cir. 1989). As an anti-ferret rule, LR. 56.1 functions to focus a court’s attention on the facts that are genuinely disputed. See Cabán Hernández v. 11 Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007) (anti-ferret “rules are designed to function as a means of ‘focusing a district court’s attention on what is—and what is not—genuinely controverted’”); accord CMI Capital Market Inv. LLC v. González-Toro, 520 F.3d 58, 62 (1st Cir. 2008) (purpose of “rule is to relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute”); Mariani-Colón v. Dep’t of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).5 The rule is designed “to reduce the burden on trial courts and ‘prevent parties from unfairly shifting the burdens of litigation to the court.’” Advanced Flexible Circuits, Inc. v. GE Sensing & Inspection Techs. GmbH, 781 F.3d 510, 520-21 (1st Cir. 2015) (interpreting District of Puerto Rico local rule) (internal citation omitted).
In pertinent part, the rule requires the party opposing summary judgment to: include a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation . . . Material facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by the opposing parties unless controverted 5 It is worth noting that Mariani-Colón as well as Cabán Hernández interpret the stricter anti-ferret rule in Puerto Rico rather than the more forgiving Massachusetts local rule. See Mariani-Colón, 511 F.3d at 219; Cabán Hernández, 486 F.3d at 6–7; cf. McGrath v. Tavares, 757 F.3d 20, 26 n.10 (1st Cir. 2014). 12 by the statement required to be served by opposing parties. Unless the court orders otherwise, the moving party may file a reply within 14 days after the response is served. LR. 56.1. The language deems admitted those facts in defendants’ SOMF that plaintiff’s LR. 56.1 response do not controvert. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (plaintiff’s failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st Cir. 2003) (citing LR. 56.1 and deeming admitted undisputed material facts that plaintiff failed to controvert). As to plaintiff’s argument and cross-motion to deem admitted the facts in the additional statement (Docket Entry # 93), the plain language of LR. 56.1 makes no mention of deeming the facts in the non-moving party’s statement of additional facts admitted if the moving party fails to controvert them. Furthermore, the rule does not require the moving party to file a response to the non-moving party’s statement of additional facts. Rather, the rule simply states that “the moving party may file a reply” unless the court orders otherwise. LR. 56.1 (emphasis added). The rule’s silence with respect to deeming paragraphs in the non- moving party’s response admitted if not controverted contrasts with the language deeming material facts in the moving party’s statement “admitted by opposing parties unless controverted.” LR. 56.1. The inclusion of the deemed-admitted language for 13 defendants’ LR. 56.1 statement and the exclusion of such language with respect to plaintiff’s additional statement supports the conclusion that the omission was intentional. See In re PHC, Inc. S’holder Litig., 894 F.3d 419, 432 (1st Cir. 2018) (quoting Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 346 (1st Cir. 2004), in parenthetical that “‘use of differential language in various sections of the same statute is presumed to be intentional and deserves interpretive weight’”), cert. denied, 139 S.Ct. 489 (Nov. 13, 2018). The language of the rule thus evidences the drafters’ intent not to deem admitted the facts in the non-moving party’s additional statement admitted if not controverted in a reply by the moving party. Together with the absence of language in the rule to warrant a contrary conclusion, plaintiff’s argument does not provide a basis to deem the facts
in plaintiff’s additional statement admitted. Rather, the additional statement simply provides a means for plaintiff to identify purported disputes in the record which, based on the cited exhibit itself, may give rise to a genuinely disputed material fact. Defendants maintain that the responses and the additional statement are not concise within the meaning of LR. 56.1. The responses and additional statement run counter to the purpose of the rule, according to defendants. (Docket Entry # 91). More globally, they seek to strike plaintiff’s entire response, the 14 additional statement, and the exhibits cited therein because of “the numerous flaws and deficiencies” in the response and the additional statement. (Docket Entry # 91). Citing Brown v. Armstrong, 957 F. Supp. 1293, 1297-98 (D. Mass. 1997), defendants maintain that their LR. 56.1 statement “should be deemed unopposed and uncontroverted.” (Docket Entry # 91, p. 5). The design or purpose of LR. 56.1 is to “prevent[] litigants from shifting the burden of organizing evidence to the district court.” Zimmerman v. Puccio, 613 F.3d 60, 63 (1st Cir. 2010). As an anti-ferret rule, LR. 56.1 serves to focus the court’s attention on the matters genuinely in dispute. See Cabán Hernández, 486 F.3d at 7 (anti-ferret “rules are designed to function as a means of ‘focusing a district court’s attention on what is—and what is not—genuinely controverted’”) (interpreting stricter anti-ferret rule in Puerto Rico) (internal citation
omitted). Here, the length of the responses and the additional statement as well as the inclusion of a number of immaterial facts make this court’s task more difficult. See Chin v. Garda CL New England, Inc., Civil Action No. 15-13110-TSH, 2017 WL 3526253, at *2 (D. Mass. Aug. 16, 2017) (noting that “Chin’s statement cannot fairly be characterize[d] as concise and that he has made the work of the court more difficult as a result”). The number of defendants, the number of incidents at issue, and the 15 breadth of the summary judgment motion, which extends to all counts, nevertheless warrant, to a certain extent, an extensive response and justify a lengthy additional statement. See Swallow v. Fetzer Vineyards, 46 F. App’x 636, 638–39 (1st Cir. 2002) (affirming lower court’s striking entire response as not an abuse of discretion but criticizing court’s approach as not “useful for purposes of the complex factual analysis this case requires”) (unpublished). In addition and as discussed below regarding the above-noted paragraphs defendants specifically identify, a number of plaintiff’s responses to SOMF paragraphs contest the facts stated in the SOMF paragraph and cite supporting exhibits in the record in compliance with LR. 56.1. Various response paragraphs that defendants do not specifically identify likewise sufficiently comply with LR. 56.1 on an individual basis and still others
focus this court’s attention on the disputed facts by designating the SOMF paragraph as “undisputed.” Although this court has the sanctioning authority to deem defendants’ entire LR. 56.1 statement admitted, see, e.g., Brown, 957 F. Supp. at 1297-98, the explicit sanction allowed under LR. 56.1 is to deem the “[m]aterial facts of record” in defendants’ LR. 56.1 statement admitted “unless controverted” rather than the entire statement admitted, including facts that the non-moving party’s response controverts with page citations to the record. LR. 56.1. Where, 16 as here, the response and the additional statement are overly inclusive of immaterial facts and legal argument but only partially noncompliant, a more precise and targeted approach is preferable. See Chin, 2017 WL 3526253, at *2 (declining moving party’s request to strike entire response statement with “200 additional statement of facts” and deem the moving party’s statement admitted because response statement “is not in obvious noncompliance” and noting that it identifies facts in dispute, “with page references” even though it is not “concise”). Furthermore, to the extent the responses and additional statement are not supported in the cited exhibits or set out legal argument, this court will not rely upon them.6 See id. (declining to deem facts admitted and noting, if “Chin’s individual responses or statements of fact are improper because they are argumentative, conclusory, or not supported by the cited
evidence, the court will not rely on them”). Exercising this court’s discretion, this court declines to strike the responses, additional statement, and exhibits thereto in their entirety. Rather, this court examines on a paragraph-by-paragraph basis the response paragraphs defendants specifically challenge. Turning to defendants’ argument that paragraphs 45 to 78 of the additional statement set out legal argument or legal
6 As discussed below, non-responsive factual commentary is considered to the extent supported by the cited exhibits. 17 conclusions, statements regarding the law or legal argument is not properly a part of an LR. 56.1 statement of additional facts. See Dukanci v. Ann Inc. Retail, 117 F. Supp. 3d 115, 117 n.2 (D. Mass. 2015) (“proffered statements fail to comply with Local Rule 56.1 as they . . . consist largely of legal argument”); Matt v. HSBC Bank USA, 968 F. Supp. 2d 351, 354 n.2 (D. Mass. 2013) (plaintiff “offered paragraphs of legal argument that have no place in a party’s concise statement of facts”); see also Neponset Landing Corp. v. Northwest Mut. Life Ins. Co., 902 F. Supp. 2d 149, 153 (D. Mass. 2012) (not crediting as facts LR. 56.1 statements that “merely reflect the arguments of counsel”). Paragraphs 45, 47 to 56, 58 to 60, and 65 to 66 in the additional statement are therefore stricken because they set out statements, including citations to cases and statutes, regarding the law or legal argument. Defendants also seek to strike the exhibits
consisting of case law. The cited exhibits in these paragraphs, which consist of cases and statutes (Docket Entry # 81-2, Ex. 19, 20) (Docket Entry # 81-3, Ex. 21-27) (Docket Entry # 81-9, Ex. 84, 85, 87), are not “facts of record” or “affidavits, depositions and other documentation” within the meaning of LR. 56.1 and are therefore stricken. Paragraphs 46, 57, 61 to 64, and 67 to 78 in plaintiff’s additional statement, however, remain in the summary judgment record. To elaborate, these paragraphs do not include legal 18 argument or a legal conclusion and defendants’ specific argument to that effect therefore does not provide a basis to strike these paragraphs. A number of the challenged paragraphs regarding the Criminal Law: Massachusetts Police Manual 2011 by John Sofis Scheft, Esq. (“the Scheft Manual”) also cite to deposition testimony that the TPD kept a copy of the Scheft Manual in the officer in charge’s office and used the manual in training at the Police Academy. (Docket Entry # 80, pp. 87-88, ¶¶ 67-71) (Docket Entry # 81-4, pp. 307-308, 486-487).7 These paragraphs and those that quote the Scheft Manual are not stricken from the record. Paragraphs 63 and 64 pertain to defendants’ access to legal material as opposed to a statement of law or argument. Defendants also object to the inclusion of responses two to ten and 23 because they add conclusory assertions, argument, and immaterial facts after the responses identify the paragraph as
“undisputed.” First, it is not appropriate to include argument in a response to a statement of material fact. See Aulisio v. Baystate Health Sys., Inc., Civil Action No. 11-30027-KPN, 2012 WL 3957985, at *3 (D. Mass. Sept. 7, 2012) (criticizing LR. 56.1 responses because “language oftentimes reads like an argument that has no place in a concise statement of facts and is frequently repetitive and non-responsive”); O’Brien v. Town of
7 Page numbers refer to the page numbers in the upper, right-hand corner of the docketed filing. 19 Agawam, 440 F. Supp. 2d 3, 5 n.1 (D. Mass. 2006) (disregarding “conclusory statements” and criticizing LR. 56.1 submission that “includes numerous substantive arguments complete with citations to case law and federal regulations”). Responses two, five, six, nine, ten, and 23 are stricken because they contain inappropriate argument which “has no place” in a LR. 56.1 response to a statement of material facts. Aulisio, 2012 WL 3957985, at *3. Second, the additional language in response paragraphs three, four, seven, and eight refers to or incorporates certain paragraphs in plaintiff’s statement of additional facts. This court will consider the cited paragraphs in the additional statement only to the extent the cited exhibits support the factual assertions in the paragraphs. See id. at *4 (“[a]s for additional, non-responsive commentary, the court will not strike it but will consider it to the extent it is supported by accurate
citations to the record”). Defendants next seek to strike responses 12, 13, 15, 17, 19 to 25, 27, 30 to 35, 37, 39 to 44, 46, 47, 50, 53, 55 to 58, 60, 63, 76, 80, 83, 221, and 223 to 232 because they amount to “legal conclusion[s] or self-serving characterizations,” argument, immaterial facts, and/or “conclusory assertion[s].” (Docket Entry # 91, p. 4). Turning to paragraphs 12 and 13 of defendants’ SOMF, each originates from opinions in defendants’
20 expert’s report.8 Plaintiff’s response to each paragraph is replete with legal argument as opposed to facts. It also cites to 72 paragraphs in the additional statement. The response paragraphs (Docket Entry # 80, pp. 5-6, ¶¶ 12-13) are stricken as inappropriate legal argument.9 See id. at *3; accord Dukanci, 117 F. Supp. 3d at 117 n.2; Matt, 968 F. Supp. 2d at 354 n.2. This court will consider the paragraphs in the additional statement that are not otherwise stricken and the exhibits they cite that are not otherwise stricken to the extent the non- stricken exhibits provide support for the factual assertions in those paragraphs. See Aulisio, 2012 WL 3957985, at *4 (“[a]s for additional, non-responsive commentary, the court will not strike
8 Plaintiff’s response to paragraphs 12 and 13 improperly includes a “motion” to strike paragraphs 12 and 13 of defendants’ SOMF. (Docket Entry # 80, pp. 5-6, ¶¶ 12, 13). A motion requires a separate memorandum, citations to legal authority, and a certification that the movant conferred with opposing counsel. See LR. 7.1(a), (b). This is particularly true where, as here, the LR. 56.1 response consists of 232 paragraphs. Exercising this court’s discretion, the request to strike defendants’ SOMF paragraphs 12 and 13 (Docket Entry # 80, pp. 5-6, ¶¶ 12, 13) is denied for failing to comply with the obligations in LR. 7.1. See LR. 1.3. The same ruling and reasoning apply to plaintiff’s “motion” to strike in response paragraphs 20, 21, and 23. (Docket Entry # 80, pp. 10-11, ¶¶ 20, 21). As an aside, this court assumes that the reference to “paragraph 12” in the response to paragraph 13 is a typographical error. (Docket Entry # 80, p. 6, ¶ 13). 9 Paragraphs 12 and 13 of defendants’ SOMF, which simply set out statements by defendants’ expert, are therefore admitted by plaintiff. This court has considered these statements in adjudicating the summary judgment motion (Docket Entry # 74), including defendants’ entitlement to qualified immunity. 21 it but will consider it to the extent it is supported by accurate citations to the record”). With respect to paragraph 15 in defendants’ SOMF, plaintiffs’ response sets out various excerpts from Pomeroy’s deposition testimony. The response to paragraph 15 adequately disputes the corresponding paragraph. This court will consider the additional, non-responsive recitations of defendants’ expert’s deposition testimony to the extent it accurately recites such testimony. See id. Defendants’ additional request to strike the response as a self-serving characterization is denied. Plaintiff’s response to SOMF paragraph 17 sets out legal argument or conclusions and is therefore stricken. Defendants therefore seek to deem SOMF paragraph 17 admitted. In substance, the paragraph states that the remaining non-arrestable chapter 209A violations “may be a criminal matter should the court find
the defendant to be in criminal contempt” and “those proceedings are instituted by the court, not by the police.” (Docket Entry # 80, p. 8, ¶ 17) (Docket Entry # 76-3, p. 51).10 Local Rule 56.1 deems admitted “[m]aterial facts” in the moving party’s statements that the non-moving party does not controvert in its statement. By its terms, the rule does not deem admitted statements of law in the moving party’s statement. LR. 56.1. 10 In violation of LR. 56.1, the paragraph does not cite to a page number for the opinion, which appears on page 31 of the 54-page report. 22 Paragraph 17 is a statement about the law in Massachusetts. Indeed, in 1997 the Massachusetts Supreme Judicial Court (“SJC”) clarified that the non-enumerated offenses in chapter 209A, section seven, “cannot be prosecuted as a statutory offense; rather, they can be prosecuted as criminal contempt.” Commonwealth v. Delaney, 682 N.E.2d 611, 617 (Mass. 1997). The statement of law in SOMF paragraph 17 is therefore not deemed admitted even though the response thereto is stricken Turning to SOMF paragraph 19, the second paragraph in plaintiff’s response adequately controverts the paragraph by citing and setting out a portion of the deposition of Chief Sheehan. Inasmuch as the response controverts the paragraph, the latter is not deemed admitted. The non-responsive commentary in the third and fourth paragraphs of plaintiff’s response is considered to the extent supported by the cited deposition. See
Aulisio, 2012 WL 3957985, at *4 (“[a]s for additional, non-responsive commentary, the court will not strike it but will consider it to the extent it is supported by accurate citations to the record”). The argument in the first paragraph of the response is stricken from the summary judgment record. See id. at *3 (argument “has no place in a concise statement of facts”). As to SOMF paragraph 20, it sets out defendants’ expert’s statement that he “‘believe[s] the document,” presumably referring to the restraining order, “‘is misleading and 23 confusing” because of its caption. (Docket Entry # 80, pp. 10- 11, ¶ 20). The first and third paragraphs in plaintiff’s response set out legal argument and are therefore stricken. The remaining portion of the response adequately controverts SOMF paragraph 20 and is not conclusory. Defendants’ additional request to strike the response as a self-serving characterization is denied. Paragraph 21 sets out a statement by defendants’ expert that “a reader of the 209A document could believe” that a violation is “punishable by imprisonment[,] a fine[,] or both.” (Docket Entry # 76, ¶ 21). The first and second paragraphs of plaintiff’s three-paragraph response (Docket Entry # 80, p. 11, ¶ 21) are stricken as inappropriate legal argument. The third paragraph adequately controverts the SOMF paragraph and therefore remains in the record. The response paragraph also cites 87 paragraphs
in plaintiff’s additional statement. To the extent these paragraphs set out non-responsive commentary and are not otherwise stricken,11 this court will consider the assertions only to the extent supported by the citations to the record. See Aulisio, 2012 WL 3957985, at *4. With respect to SOMF paragraph 22, plaintiff’s response does not dispute that plaintiff’s expert made the statement in SOMF 11 The response paragraph cites a number of paragraphs in plaintiff’s additional statement that are already stricken from the record. 24 paragraph 22. (Docket Entry # 80, pp. 11-12, ¶ 22). The second sentence in the second paragraph of response paragraph 22 adequately controverts SOMF paragraph 22. The sentence also cites to paragraphs in the additional statement, including paragraphs stricken from the record. To state the obvious, the latter are not considered. The first sentence in the second paragraph is stricken as legal argument and the remaining portion of the response is considered as non-responsive commentary to the extent supported in the record. See id. Plaintiff’s responses to paragraphs 24, 25, and 22512 simply dispute the corresponding paragraphs and controvert those paragraphs by quoting a deposition. They do not set out self- serving characterizations or legal conclusions. The responses therefore remain in the record. The second sentence in plaintiff’s response to paragraph 27 in defendants’ SOMF is
stricken. The remaining portion of the response will remain part of the record. Paragraph 30 recites deposition testimony by plaintiff’s expert that, “‘I’ll be honest with you, I’m confused because the Probate said one fifty, this one says seventy-five.’” (Docket
12 Plaintiff’s response to SOMF paragraph 225 cites to paragraphs in plaintiff’s additional statement that duplicate the statements in the response to SOMF paragraph 225. This court will consider the cited paragraphs in plaintiff’s additional statement to the extent supported by facts in the cited portion of the record. 25 Entry # 76, ¶ 30). Except for the first sentence of the first paragraph, the first and second paragraphs of plaintiff’s three- paragraph response as well as the first sentence of paragraph three (Docket Entry # 80, p. 11, ¶ 21) are stricken as inappropriate legal argument. The remaining portion of the third paragraph adequately controverts SOMF paragraph 30, particularly the cited testimony of defendants’ expert (Docket Entry # 81-4, pp. 231-232), and therefore remains in the record. Accordingly, plaintiff does not admit SOMF paragraph 30 although he does not dispute that his expert “said those words.” (Docket Entry # 80, p. 15, ¶ 30). The sentence also cites to paragraphs in the additional statement, including paragraphs stricken from the record. Here again, the latter are not considered. To the extent these paragraphs set out non-responsive commentary and are not otherwise stricken, this court will consider the assertions
only to the extent supported by the citations to the record. See Aulisio, 2012 WL 3957985, at *4. Plaintiff’s response to SOMF paragraph 31 is stricken as inappropriate argument and the testimony by Chief Sheehan in SOMF paragraph 31 admitted by plaintiff. The first sentence of plaintiff’s response includes inappropriate argument. The second sentence is also conclusory and also argument as opposed to facts. The sentence additionally fails to comply with LR. 56.1 because it cites 86 paragraphs from plaintiff’s additional 26 statement for a single sentence which reads, “Mr. Mackey states that Chief Sheehan should have known about the laws in Massachusetts and it was unreasonable for him and the Defendants under his command to ignore the well-established case law relating to G.L. c. 209A.” (Docket Entry # 80, pp. 15-16, ¶ 31). Turning to SOMF paragraph 32, the second sentence in plaintiff’s response adequately responds to the paragraph by citing certain pages of Chief Sheehan’s deposition that clarify Chief Sheehan’s testimony recited in SOMF paragraph 32. The remaining portion of the response is stricken from the summary judgment record as inappropriate argument. See id. at *3 (argument “has no place in a concise statement of facts”). Plaintiff’s responses to paragraphs 33 to 35, 37, 44, 47, 60, 80, 83, 221, and 226 to 23213 of defendants’ SOMF are
stricken as setting out inappropriate argument or, to use defendant’s terminology, self-serving characterizations of the record. Matt, 968 F. Supp. 2d at 354 n.2 (“paragraphs of legal argument that have no place in a party’s concise statement of facts”). To a lesser degree, a number of the responses also contain legal conclusions. Insofar as these responses cite to
13 The recitations of plaintiff’s November 7, 2010 written statement in the responses to SOMF paragraphs 226 to 232 are not stricken. They also duplicate or mirror paragraph 11 in plaintiff’s additional statement (Docket Entry # 80, p. 75, ¶ 11), which accurately recites the exhibit containing the written statement (Docket Entry # 81-1, p. 20). 27 paragraphs in plaintiff’s additional statement, this court will consider the cited paragraphs in the additional statement only to the extent supported by facts in the record cited in these paragraphs, excluding the paragraphs and exhibits stricken from the record.14 See id. As requested by defendants, the corresponding SOMF paragraphs are admitted provided they accurately reflect the cited portions of the record. Plaintiff’s responses to paragraphs 39 to 42 of defendants’ SOMF are not stricken because they dispute, in part, the corresponding paragraph and cite to the record to support the dispute. Contrary to defendants’ arguments, the responses do not include legal conclusions or self-serving characterizations. With respect to plaintiff’s response to paragraph 43 of defendants’ SOMF, it is neither a legal conclusion nor a self- serving characterization. Because the response cites various
paragraphs in plaintiff’s additional statement, this court will consider the response only to the extent supported in the record by the citations in the cited paragraphs in plaintiff’s additional statement. See Aulisio, 2012 WL 3957985, at *4. As to plaintiff’s response to SOMF paragraph 50 (Docket Entry # 80, pp. 20, 109, ¶¶ 50, 181), the cited exhibits 14 For example, this court considers paragraph seven of the additional statement, which plaintiff’s responses to SOMF paragraphs 226 to 232 uniformly recite, to the extent supported by the cited exhibit in paragraph seven (Docket Entry # 81-1, Ex. 5). 28 sufficiently controvert the paragraph. (Docket Entry # 81-4, p. 94, Ex. 32) (Docket Entry # 81-2, p. 66, Ex. 18). The response (Docket Entry # 80, p. 20, ¶ 50) is therefore not stricken from the record. Turning to SOMF paragraph 53, plaintiff’s response reflects that plaintiff does not dispute the paragraph, which recites testimony by Officer McMahon. The additional sentence in the response that Officer McMahon’s belief was not “reasonable” or “an accurate reflection of the law in Massachusetts” (Docket Entry # 80, p. 21, ¶ 53) is stricken as argument. The remaining portion is considered to the extent supported by the cited exhibits in the cited paragraphs of the additional statement, excluding the cited exhibits and paragraphs stricken from the record. See Aulisio, 2012 WL 3957985, at *4. With respect to plaintiff’s response to SOMF paragraph 55, the cited testimony of Officer McLaughlin directly and
sufficiently controverts the paragraph. (Docket Entry # 80, pp. 21-22, ¶ 55) (Docket Entry # 81-5, pp. 17-18, Ex. 41). As to plaintiff’s response to SOMF paragraph 56, the word “unlawfully” in the first sentence of the response (Docket Entry # 80, p. 22, ¶ 56) is stricken as inappropriate argument. The second sentence sufficiently controverts the paragraph and is considered to the extent supported by the cited exhibits in the cited paragraphs of the additional statement. Turning to plaintiff’s response to SOMF paragraph 57 (Docket 29 Entry # 80, p. 22, ¶ 57), the first sentence is stricken as inappropriate argument. See id. at *3; accord Dukanci, 117 F. Supp. 3d at 117 n.2; Matt, 968 F. Supp. 2d at 354 n.2. The remaining two sentences are considered only to the extent supported by the cited exhibits in paragraphs 196 to 198 and 202 of the additional statement. See Aulisio, 2012 WL 3957985, at *4. That said, as stated in SOMF paragraph 57, the application for the criminal complaint does have a check next to the probable cause box with initials in a corresponding box for a “clerk/judge.” (Docket Entry # 81-2, Ex. 18, p. 62). With respect to SOMF paragraph 58, plaintiff’s response does not dispute the substance of the paragraph, i.e., that Detective Connor met with Lisa Mackey at the Tewksbury police station on June 8, 2012. (Docket Entry # 80, p. 22, ¶ 58). The remaining portion of the response is considered as non-responsive
commentary to the extent supported in the record. See Aulisio, 2012 WL 3957985, at *4. The first paragraph in plaintiff’s response to defendants’ SOMF paragraph 63 is stricken as a self- serving argument. Because the remaining portion cites to paragraphs in plaintiff’s additional statement, this court will consider the remaining, non-responsive portion to the extent supported by the citations to the record in the cited paragraphs in the additional statement. See id. Addressing plaintiff’s response to SOMF paragraph 76, 30 plaintiff does not dispute that “Officers Duffy and Russo believed there was probable cause that the Plaintiff violated sections A(2) and A(3) of” the restraining order, as stated in the paragraph and in Officer Duffy’s narrative report of the June 11, 2012 incident. (Docket Entry # 80, pp. 26-27, ¶ 76) (Docket Entry # 81-5, Ex. 49, pp. 601-602). The second and third sentences of the response are stricken as inappropriate argument. The fourth and fifth sentences set out information included in the narrative report, which remains part of the summary judgment record, and the sixth sentence sets out a related opinion by plaintiff’s expert regarding the lack of probable cause for a violation of chapter 209A. All three sentences implicitly question the reasonableness of Officers Duffy and Russo’s belief as opposed the fact that Officers Duffy and Russo actually “believed that there was probable cause,” which is what SOMF
paragraph 76 and the narrative report state. (Docket Entry # 76, ¶ 76) (“Officers Duffy and Russo believed that there was probable cause . . . .”); (Docket Entry # 81-5, p. 601, Ex. 49) (“We have probable cause to believe that [plaintiff] violated both of these two sections . . . .”). Accordingly, this court considers the fourth, fifth, and sixth sentences as non-responsive commentary to the extent supported in the record. See Aulisio, 2012 WL 3957985, at *4. Turning to plaintiff’s response to SOMF paragraph 223, the 31 cited testimony in the third sentence (Docket Entry # 81-4, Ex. 35, pp. 373-374, 377) adequately controverts the paragraph. Accordingly, the response is not stricken from the summary judgment record. The second sentence, which the cited deposition testimony supports (Docket Entry # 81-5, Ex. 41, p. 18), is considered as non-responsive commentary. See id. With respect to plaintiff’s response to SOMF paragraph 224, the cited testimony in the third sentence (Docket Entry # 81-4, Ex. 35, pp. 373-374, 377) likewise adequately controverts the paragraph. The second sentence is stricken as legal argument. See id. at *3. The cited exhibits referenced in the cited paragraphs in the additional statement, which include narrative reports, shall remain in the record. As a final matter, plaintiff objects to defendants’ contention in a footnote that his expert’s “opinion is not
reliable and beyond the scope of expert testimony” (Docket Entry # 91, n.3) because defendants do not provide any detail or foundation for their position. (Docket Entry # 93). Defendants’ two-sentence contention fails to provide any law, detail, or citations to particular opinions made by plaintiff’s expert. The contention is not well-developed and, for present purposes only, defendants therefore waive an argument seeking to strike plaintiff’s LR. 56.1 paragraphs that rely on plaintiff’s expert. See Curet-Velázquez v. ACEMLA de Puerto Rico, Inc., 656 F.3d 47, 32 54 (1st Cir. 2011) (“[a]rguments alluded to but not properly developed before a magistrate judge are deemed waived”); Coons v. Indus. Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010) (“district court was ‘free to disregard’ the state law argument that was not developed in Coons’s brief”); see also Doe v. Trs. of Bos. Coll., 892 F.3d 67, 83 n.7 (1st Cir. 2018) (argument raised in footnote “without much elaboration” considered waived); see, e.g., United States v. Caparotta, 676 F.3d 213, 218 (1st Cir. 2012) (“argument consist[ing] of just two sentences and two cursory citations in his brief . . . is therefore waived”). CONCLUSION In light of the above rulings, defendants’ motion to strike plaintiff’s affidavit (Docket Entry # 82) and motion to strike plaintiff’s response or deem defendants’ facts admitted (Docket
Entry # 91) are ALLOWED in part and DENIED in part. Plaintiff’s cross-motion to deem his statement of additional facts admitted (Docket Entry # 93) is DENIED.
/s/ Marianne B. Bowler MARIANNE B. BOWLER United States Magistrate Judge