Azim v. Tortoise Capital Advisors, LLC

ARSHAD AZIM, Plaintiff, v. TORTOISE CAPITAL ADVISORS, LLC, et al., Defendants.

Case No. 13-2267-DDC-JPO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

June 21, 2016

MEMORANDUM AND ORDER

Plaintiff, proceeding pro se, filed this lawsuit against his former employer, Tortoise Capital Advisors, LLC ("Tortoise"), the parent company of Tortoise, Mariner Holdings, LLC ("Mariner"), and several individuals affiliated with either Tortoise or Mariner.¹ On November 5, 2015, the Court granted defendants' Motion for Summary Judgment against plaintiff's four claims: (1) national origin discrimination under 42 U.S.C. § 1981; (2) religious discrimination under 42 U.S.C. § 2000e (Title VII); (3) retaliation for reporting securities violations in violation of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"), 15 U.S.C. § 78u-6(h)(1)(A); and (4) interference with plaintiff's civil rights by obstructing justice in violation of 42 U.S.C. § 1985(3). Doc. 144. And, the Court entered a Judgment in favor of defendants. Doc. 145.

On December 3, 2015, plaintiff, by then, represented by counsel, filed a "Motion for Relief from and/or to Amend Judgment." Doc. 147. Plaintiff's motion asks the Court to alter or amend its November 5, 2015 Judgment under Fed. R. Civ. P. 59(e), or, in the alternative, to grantplaintiff relief from the Judgment under Fed. R. Civ. P. 60(b). Id. at 1. The next day, plaintiff, again through counsel, filed a "First Supplement to Motion for Relief from and/or to Amend Judgment." Doc. 149. Then, on December 7, 2015, plaintiff, though counsel, filed a "Second Supplement to Motion for Relief from and/or to Amend Judgment." Doc. 150. And finally, on December 8, 2015, plaintiff, though counsel, filed a "Third Supplement to Motion for Relief from and/or to Amend Judgment." Doc. 151.

On December 17, 2015, defendants filed a Response in Opposition to plaintiff's motion. Doc. 155. And, on December 31, 2015, plaintiff submitted a Reply. Doc. 158. On May 26, 2016, the Court heard oral argument on plaintiff's motion. After considering the information submitted in the parties' briefs as well as the oral arguments presented at the May 26, 2016 hearing, the Court denies plaintiff's "Motion for Relief from and/or to Amend Judgment" (Doc. 147). The Court explains why below.

Also pending before the court is defendants' Motion to Strike plaintiff's Second Supplement to his motion. Doc. 157. In it, defendants argue that plaintiff's supplement is procedurally improper and untimely. Id. Plaintiff opposes defendants' Motion to Strike. Doc. 161. For the reasons explained below, the Court denies defendants' Motion to Strike plaintiff's Second Supplement (Doc. 157).

I. Procedural Background

On June 4, 2013, plaintiff, acting pro se, filed a Title VII lawsuit. Doc. 1. From the lawsuit's beginning though the entry of summary judgment against his claims, plaintiff proceeded pro se. Shortly after he filed the case, Magistrate Judge James P. O'Hara convened a Scheduling Conference with the parties. At the conference, Judge O'Hara questioned plaintiff about his decision to proceed pro se. He explained the benefits of engaging legal counsel, and heasked plaintiff if he had thought about hiring a lawyer. Doc. 155-1 at 3-5. Plaintiff responded that he had thought "very much" about retaining counsel, but he concluded he wanted to represent himself. Id. at 5. Plaintiff understood that he may lose the case as a pro se litigant, but he had decided to "let the chips fall where they may." Id.

During the lawsuit, plaintiff moved to amend his Complaint several times. See Docs. 14, 29, 32, 35. The Court twice granted plaintiff's requests (Doc. 15, 46), thus allowing plaintiff to file two amended pleadings. He filed a First Amended Complaint on July 26, 2013 (Doc. 20) and a Second Amended Complaint on March 21, 2014 (Doc. 47). Plaintiff also served discovery on defendants (see, e.g., Docs. 86, 100, 101), and several motions seeking various forms of relief. See Docs. 25 (Motion for Extension of Time to File Amended Complaint), 46 (Objection to Magistrate Judge's Decision), 68 (Motion to Amend/Correct Civil Cover Sheet), 94 (Motion for In Camera Inspection), 117 (Motion to Compel).

Plaintiff filed his Motion to Compel on April 12, 2015, 30 days after discovery closed and 18 days before the dispositive motion deadline. See Doc. 117 (stating that discovery ended on March 13 and dispositive motions are due by May 1). In his motion, plaintiff asked the Court to compel defendants' response to discovery requests that plaintiff served on February 9 and defendants answered on March 13 (the last day of discovery). Id. at 1-2. Plaintiff sent defendants a golden rule letter on April 9, 2015, asserting that defendants' discovery responses were deficient, requesting defendants to produce the requested documents, and advising that he intended to seek relief from the court if defendants failed to respond. See Docs. 117-1, 119-2 at 3. Defendants responded to plaintiff's golden rule letter on April 10 (Doc. 117-2), and plaintiff filed his motion to compel two days later (Doc. 117).

On April 27, 2015, defendants responded to plaintiff's Motion to Compel (119), and plaintiff submitted his Reply on May 11, 2015 (Doc. 126). On May 26, 2015, Judge O'Hara granted in part and denied in part plaintiff's Motion to Compel. Doc. 129.

While the parties were briefing plaintiff's Motion to Compel, defendants filed a Motion for Summary Judgment on the dispositve motion deadline—May 1, 2015 (Doc. 121). That same day, defendants served plaintiff by email with their summary judgment briefing and unredacted copies of exhibits that defendants had sought leave to file under seal. Docs. 155-2, 155-3. Plaintiff also had access to defendants' briefing and the unsealed supporting exhibits filed on the Court's CM/ECF system because he was registered as an electronic user with that system.

Our court's local rules require that "a represented party moving for summary judgment against a party proceeding pro se must serve and file as a separate document, together with the papers in support of the motion" a Notice to Pro Se Litigant Who Opposes A Motion For Summary Judgment ("Pro Se Notice"), along with a copy of the full texts of Fed. R. Civ. P. 56 and D. Kan. Rule 56.1. See D. Kan. Rule 56.1(f). Defendants served and filed the Pro Se Notice, but not on the same day they filed their summary judgment motion. Doc. 125. Instead, defendants served the notice ten days later, on May 11, 2015. Id. Defendants concede the delay in sending the notice until ten days after filing their summary judgment motion, and explained that the delay resulted from inadvertence.

Defendants' summary judgment brief contained 188 numbered statements of fact with specific citations to the attached record to support each factual statement. Docs. 122 at 3-31, 124 at 3-31. Plaintiff asserts that defendants' summary judgment briefing and attached exhibits numbered more than 400 pages. See Doc. 149-1 at 2. And, in his pending motion, plaintiff contends that defendants' summary judgment motion "immediately overwhelmed [him] and [hewas] at a loss as to how to respond to such a voluminous filing." Id. So, plaintiff says he reviewed the federal rule governing summary judgment motions, Fed. R. Civ. P. 56. Id. Plaintiff undertook this review even though he had not yet received the Pro Se Notice with the federal and local rules attached.²

In one of the advisory committee's notes to the rule, plaintiff read the following: "If a motion for summary judgment is filed before a responsive pleading is due from a party affected by the motion, the time for responding to the motion is 21 days after the responsive pleading is due." Fed. R. Civ. P. 56 advisory committee's note to 2009 amendment. Plaintiff believed that he had a "responsive pleading" due at that time, i.e. his Reply to his Motion to Compel, due by May 11, 2015. Doc. 149-1 at 3. And, based on his reading of the advisory committee's note, he thought that his time for responding to defendants' summary judgment motion did not start to run until May 11, when his Reply to the Motion to Compel was due. Id. He thus calculated his time for responding to defendants' summary judgment motion as May 31.³ Id. Given his understanding of the rule, plaintiff asserts that he concentrated his efforts on preparing his Reply to the Motion to Compel between May 1 and May 11, instead of preparing a response to defendants' summary judgment motion. Id.

As stated, defendants eventually served plaintiff with the Pro Se Notice on May 11, ten days after they had filed their summary judgment motion. Docs. 125, 149-1 at 3. The Pro Se Notice explained the summary judgment procedure and advised plaintiff that if he did "notrespond to the motion for summary judgment on time with affidavits and/or documents contradicting the material facts asserted by the defendant[s], the court may accept defendant[s'] facts as true, in which event [plaintiff's] case may be dismissed and judgment entered in defendant[s'] favor without a trial." Doc. 125 at 2. The Pro Se Notice also warned, under Fed. R. Civ. P. 56, that plaintiff "may not oppose summary judgment simply by relying upon the allegations in [plaintiff's] complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising specific facts that support your claim." Id. at 1.

The Pro Se Notice also attached the federal and local rules governing summary judgment. Id. at 3-6. The text of Fed. R. Civ. P. 56(c) describes the required procedure for both the moving and nonmoving party when supporting factual positions in summary judgment briefing.⁴ Id. at 3-4 (providing the text of Fed. R. Civ. P. 56(c)). It also explains that "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), ...