Bailey v. McCarthy, Civil No. 01-82-P-C (D. Me. 1/25/2002)

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JEFFREYTON BAILEY, Plaintiff v. JAMES McCARTHY, Defendant.

Civil No. 01-82-P-C.

United States District Court, D. Maine.

January 25, 2002.

RECOMMENDED DECISION ON DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT AND

MEMORANDUM DECISION ON REQUEST TO STRIKE

DAVID M. COHEN, Magistrate Judge.

Defendant Maine state trooper James McCarthy moves for summary judgment as to all claims against him in this action arising from his stop and search of plaintiff Jeffreyton Bailey's vehicle on February 23, 2001. Defendant James McCarthy's Motion for Summary Judgment, etc. ("Motion") (Docket No. 14) at 1-2; see generally Complaint for Relief ("Complaint") (Docket No. 1). Incident thereto, McCarthy presses the court to disregard the entirety of Bailey's opposing papers on the ground of untimely filing. Defendant's Reply to Plaintiff's Motion in Opposition to Summary Judgment, etc. ("Reply") (Docket No. 26) at 1-2. For the reasons that follow, I disregard Bailey's opposing papers and recommend that the Court grant the Motion as to Count I, which asserts federal claims pursuant to 42 U.S.C. § 1983, and decline to exercise its supplemental jurisdiction as to the remaining two counts, which set forth state-law claims of intentional infliction of emotional distress (Count II) and false imprisonment (Count III). See Complaint ¶¶ 3-26.

I. Request To Strike

McCarthy filed the instant motion on November 27, 2001. See Motion at 1. Local Rule 7, as amended March 1, 2001, affords a period of "twenty-one (21) days after the filing of a motion" to file papers in opposition. Loc.R. 7(b). No additional time is added for mailing. Loc.R. 7(d). In computing time, the day of the event from which the designated period of time begins to run is excluded, but the last day of the period computed is included unless it falls on a Saturday, Sunday, legal holiday or other day on which the clerk's office is inaccessible. Fed.R.Civ.P. 6(a). Bailey's opposing papers therefore were due (as reflected in the court's electronic docket) on December 18, 2001. They were filed two days late, on December 20, 2001. See Plaintiff Jeffreyton Bailey's Motion in Opposition to Summary Judgment, etc. ("Opposition") (Docket No. 22) at 1; Plaintiff's Statement of Material Facts in Dispute in Oposition [sic] to Defendant's Motion for Summary Judgement [sic] ("Plaintiff's Opposing SMF") (Docket No. 23) at 1.

As McCarthy points out, see Reply at 2, Bailey did not accompany his late filing with a motion to enlarge time nor offer any explanation for his delay. Nor, to date, has he done so. Per Fed.R.Civ.P. 6(b), "the court for cause shown may at any time in its discretion . . . upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect[.]" No motion having been made and no excuse having been tendered, Bailey's papers merit disregard. See, e.g., Maine v. United States Dep't of Interior, 124 F. Supp.2d 728, 735 (D.Me. 2000) ("The excusable neglect standard [of Fed.R.Civ.P. 6(b)] takes all relevant circumstances into account, but it does not relieve a defendant from setting forth some reason for the delay.").

In any event, even were Bailey's papers not tardily filed without proffer of excuse, their disregard would be warranted on the basis of significant nonconformance with Loc.R. 56. For example, Bailey strews a number of asserted facts throughout the body of his opposing brief. See Opposition at 8-16. Such facts are not cognizable. See, e.g., Pew v. Scopino, 161 F.R.D. 1, 1 (D.Me. 1995) ("The parties are bound by their [Local Rule 56] Statements of Fact and cannot challenge the court's summary judgment decision based on facts not properly presented therein."). In addition, Bailey consistently purports to "admit" certain of McCarthy's statements by rephrasing them in such a manner as to introduce additional facts. Compare generally Defendant James McCarthy's Statement of Material Facts in Support of His Motion for Summary Judgment ("Defendant's SMF") (Docket No. 15) with Plaintiff's Opposing SMF. An admission should be just that — an admission, unvarnished. Additional facts are required to be set forth in a "separate section." Loc.R. 56(c).

Practices such as these contravene not only the letter but also the spirit of the rule, key purposes of which are to focus the issues and to conserve the time of counsel and the court. Indeed, it is evident that counsel for McCarthy, understandably reluctant to assume that the court would grant her request to strike, expended considerable energy addressing not only the substance but also the flawed presentation of Bailey's asserted facts. See generally Defendant's Response to Plaintiff's Statement of Material Facts ("Defendant's Reply SMF") (Docket No. 24).¹ Such practices warrant serious sanctions, including the striking of the offending opposing statement of material facts.

For the foregoing reasons, Bailey's papers filed in opposition to the instant motion are disregarded.

II. Applicable Legal Standards

The striking of Bailey's opposing papers does not in itself entitle McCarthy to summary judgment in his favor. "The failure of the nonmoving party to respond to a summary judgment motion does not in itself justify summary judgment." Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1517 (1st Cir. 1991). "Rather, before granting an unopposed summary judgment motion, the court must inquire whether the moving party has met its burden to demonstrate undisputed facts entitling it to summary judgment as a matter of law." Id. (citations, internal quotation marks and brackets omitted).

III. Factual Context

Per Loc.R. 56(e), the following statements of fact offered by McCarthy are deemed admitted inasmuch as properly supported by the record citations given:

McCarthy is a Maine state trooper, a position he has held since 1997. Defendant's SMF ¶ 1; Affidavit of James McCarthy in Support of Defendant's Motion for Summary Judgment ("McCarthy Aff.") (Docket No. 16) ¶ 1. On February 23, 2001, as dusk approached at 4:27 p.m., McCarthy was patrolling Interstate 295 northbound in his marked police cruiser. Defendant's SMF ¶ 2; McCarthy Aff. ¶ 2. He observed a Honda with heavily tinted windows traveling in front of him. Id. He believed that the Honda's window tint violated 29-A M.R.S.A. § 1916. Defendant's SMF ¶ 2; McCarthy Aff. ¶¶ 2-3.

Because McCarthy could not see inside the vehicle, for safety reasons he radioed dispatch to verify that there were no outstanding warrants for the vehicle's owner. Defendant's SMF ¶ 3; McCarthy Aff. ¶ 2. When he determined that there were no known warrants, he stopped the vehicle at approximately mile marker 56 northbound to determine the legality of the window tint. Id. He did not know the race of any of the vehicle's occupants until he approached the vehicle. Id. When McCarthy approached the vehicle, he observed that there were two male occupants. Defendant's SMF ¶ 4; McCarthy Aff. ¶ 3. The passenger was not wearing his seatbelt. Id. McCarthy told the driver that he pulled him over because he believed the vehicle's windows were tinted in violation of the law (29-A M.R.S.A. § 1916). Id.

McCarthy asked the driver for his license, registration, proof of insurance and certificate of compliance for his window tint; he also asked the passenger for identification. Id. The driver provided the requested documentation, including a Maine license that identified him as Jeffreyton Bailey and a certificate of compliance that indicated the vehicle's windows were tinted in accordance with Maine law. Defendant's SMF ¶ 4; McCarthy Aff. ¶¶ 4-5. Bailey offered that he was traveling from Portland to Lewiston. Defendant's SMF ¶ 4; McCarthy Aff. ¶ 4. The passenger provided a Maine State Identification Card that identified him as Larry Lagueux and informed McCarthy that his license was suspended. Id.

McCarthy returned to his cruiser and inquired into the status of Bailey and Lagueux. Defendant's SMF ¶ 5; McCarthy Aff. ¶ 5. McCarthy learned that Lagueux's license was in fact suspended and that he was a classified habitual offender. Id. Before leaving his cruiser, McCarthy decided that he would ask Bailey for consent to search the vehicle; he radioed trooper George Loder to see if Loder could assist with the consent search. Id. Loder had been a Maine state trooper since June 1994. Defendant's SMF ¶ 5; Affidavit of George Loder in Support of Defendant's Motion for Summary Judgment ("Loder Aff.") (Docket No. 17) ¶ 1.

McCarthy returned to Bailey's vehicle and issued Lagueux a summons for not wearing his seatbelt. Defendant's SMF ¶ 6; McCarthy Aff. ¶ 6. He returned both Bailey's documentation and Lagueux's identification. Id. He then asked Bailey if there was anything illegal in the vehicle. Defendant's SMF ¶ 6; McCarthy Aff. ¶ 7. When Bailey denied that there was, McCarthy asked for consent to search the vehicle. Id. Lagueux spoke up that he did not object to the search. Id.; Affidavit of Larry Lagueux ("Lagueux Aff.") (Docket No. 19) ¶ 5. Bailey also agreed, and both he and Lagueux exited the vehicle without voicing any objection. Id.; Deposition of Jeffreyton Bailey ("Bailey Dep."), filed with Motion, at 8-9, 115.

As Bailey and Lagueux were getting out of the vehicle, Loder arrived on the scene. Defendant's SMF ¶ 6; Loder Aff. ¶ 2. When Lagueux was exiting the vehicle, McCarthy discovered that he had an open bottle of beer. Defendant's SMF ¶ 7; McCarthy Aff. ¶ 8. McCarthy dumped the beer out, then asked Lagueux and Bailey to stand in front of the car, positioning them apart from each other so that they could not communicate. Id. McCarthy then explained to Bailey that he was legally responsible for his passenger's open container of alcohol. Id.

Loder stood with Lagueux and Bailey while McCarthy searched the vehicle. Defendant's SMF ¶ 8; Loder Aff. ¶ 3. Loder asked both Bailey and Lagueux where they were from, meaning a location in...