United States District Court, D. Colorado
ORDER ON MOTION TO STRIKE
Raymond P. Moore, United States District Judge
Order dated July 6, 2018 (the “Order”), this
Court struck Plaintiff's original response (ECF No. 51)
to Defendants' Motion for Summary Judgment. The Court did
so because Plaintiff's statement of additional facts
(“Statement”) was “riddled with argument
and include[d] nonresponsive responses to the movant's
factual statements.” (ECF No. 52.) The Court allowed
Plaintiff only three days to file a compliant response
because he had already been afforded two extensions of time
to respond. Plaintiff timely refiled his response (the
“Response”) (ECF No. 53), with a refiled
Statement (ECF No. 53-1) and exhibits. This issue before this
Court is whether the Response and refiled Statement
impermissible exceeds what the Court allowed in its Order.
Defendants' Opposed Motion to Strike Plaintiff's
Opposition to Defendants' Motion for Summary Judgment
(ECF No. 54) argues that Plaintiff has done so. The Court
agrees, but not to the extent Defendants contend.
BACKGROUND AND ANALYSIS
Court struck Plaintiff's entire filing, not just the
Statement. That is because the Statement contained argument,
which should be in the refiled response, and non-responsive
responses. Thus, to file a compliant response, Plaintiff was
required to remove the arguments and include them in his
refiled response. As to the “nonresponsive responses,
” Plaintiff should - and could - provide responses
rather than arguments to Defendants' statement of
undisputed material facts and amend his response brief
accordingly. Finally, giving Plaintiff the benefit of the
doubt, the Order could arguably be construed as allowing him
to raise additional facts in the refiled Statement, with
resulting arguments in the Response, to address matters
raised by Defendants. However, the Order could not be
construed, for example, as leave for Plaintiff to simply
change his responses by now denying what he had
already admitted. Plaintiff's argument to the contrary is
rejected. Thus, the Court examines Defendants' Motion in
light of this background.
Court starts with Defendants' contention that the entire
Response, including refiled Statement, should be stricken.
The Court finds otherwise. While there are unauthorized
changes, they do not warrant such a sanction. This leaves
Defendants' alternative request to strike or deem certain
arguments as to what Plaintiff changed, to which Plaintiff
did not dispute, and the Court's decisions concerning
such arguments are as follows.
No. 7: Defendants argue Plaintiff changed his response. The
Court agrees; therefore, this response is stricken.
Nos. 8 & 11: Defendants argue Plaintiff originally
admitted this fact, but then changed it to
“disputed” in the Response. The Court agrees.
Therefore, these responses are stricken.
No. 14: Defendants argue that Plaintiff (a) left in pages of
extensive arguments and non-responsive argument; (b) added
new arguments relating to the alleged fact that his
performance numbers rose in the two months after Defendants
completed their review of performance numbers and that
Plaintiff allegedly received a third-quarter and October
bonus; and (3) added arguments regarding a newly-filed
Exhibit 27. The Court will not consider arguments, new or
old, raised in the refiled Statement. However, because Fact
No. 14 is so voluminous, it is unclear to the Court whether
Plaintiff's additional facts could be construed as
responsive and not as simply something entirely different.
Giving Plaintiff the benefit of the doubt, the Court will let
this Fact stand, but will disregard any arguments.
No. 18: Defendants assert Plaintiff changed his argument by
including a new argument of hearsay. The Court agrees. This
new argument will be stricken.
Nos. 26, 29: Defendants contend Plaintiff added new and/or
non-responsive factual contentions. Because Plaintiff's
additional facts could be construed as responsive, the Court
will let them stand.
Nos. 33-72, Exhibits 27, 28, 25: Defendants contend that
Plaintiff added an additional section, set forth additional
facts, and relied on new arguments and exhibits. First, any
argument (rather than facts) in the refiled Statement will
not be considered. To the extent there are wholly new
additional facts, with supporting exhibits, which are
non-responsive to what was originally raised, the Court will
allow them in this instance, for the reasons stated below.
Procedures “should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and
proceeding.” Fed.R.Civ.P. 1. In this case, for the
Court to attempt to parcel out line-by-line what is wholly
new and different, or what could arguably (even though not
previously raised) nonetheless be responsive to the arguments
and facts presented by Defendants, would be contrary to the
dictates of Rule 1, or the rationale for the Court's
Civil Practice Standards. It may also render the Response to be
unworkable as to what is in or out in any given argument,
possibly requiring the filing of yet another response brief.
And, conceivably, another round of arguments of the propriety
of that refiled brief. This cycle would require the Court to
entertain a major round of litigation before it even begins
to consider the motion for summary judgment. The Court
declines to do so in this instance because it struck
all of Plaintiffs' responsive filings.