Weilert v. Health Midwest Development Group

95 F.Supp.2d 1190

Helen Louise WEILERT, Plaintiff, v. HEALTH MIDWEST DEVELOPMENT GROUP, d/b/a Allen County Hospital, Defendant.

No. Civ.A. 99-2107-CM.

United States District Court, D. Kansas.

April 13, 2000.

Jerald R. Long, Mission, KS, for Helen Louise Weilert, plaintiff.

Jack L. Whitacre, Jeffrey M. Place, Spencer, Fane, Britt & Browne, Kansas City, MO, for Health Midwest Development Group, defendant.

MEMORANDUM AND ORDER

MURGIA, District Judge.

This matter is before the court on defendant's motion to strike and for extension of time (Doc. 56) and motion for summary judgment (Doc. 50). The motion for extension of time is moot. The motions to strike and for summary judgment are denied for reasons discussed herein.

I. MOTION TO STRIKE AND FOR EXTENSION OF TIME

Defendant, Health Midwest Development Group (Midwest), made a motion requesting the court to strike certain portions of the plaintiff's, Ms. Weilert's, response to Midwest's motion for summary judgment. Midwest also requested leave to reply to Ms. Weilert's memorandum ten days after the court decides the motion to strike. Midwest was subsequently granted leave to file its reply brief out of time. Therefore, Midwest's motion for an extension of time is moot.

Ms. Weilert filed a response to Midwest's summary judgment motion containing 269 numbered paragraphs of additional facts precluding summary judgment, and an "Argument" section which Midwest contends is 32 pages in length, thereby exceeding the 30-page limit established by the scheduling order. Further, it alleges that Ms. Weilert's statements of fact are cumulative and repetitive summaries of deposition testimony. Midwest argues that the paragraphs are not concise statements of material facts which are at issue in this case. Midwest contends that, as a result Ms. Weilert has violated D.Kan. Rule 56.1, and the paragraphs should be stricken. According to Midwest, it would be a waste of resources to respond to these cumulative and repetitive contentions of fact since the issue before the court is legal.

Ms. Weilert responds that her "Argument" section exceeds the limit by only two pages. She argues that the font of her memorandum provides approximately 65 characters per line, while that used by Midwest provides approximately 95 characters per line. She requests that the court accept her memorandum as written, or allow her to resubmit it in a smaller font. With regard to the 269 paragraphs of additional facts, she argues that fact issues are dispositive of this summary judgment motion. Because Ms. Weilert took the statements of fact directly from deposition testimony, she argues that it cannot be too burdensome to admit or controvert the facts. Alternatively, she argues that the court should not strike those statements to which she specifically refers in the "Argument" section of her memorandum.

A. Page Limit

The "Argument" section begins on page 49 approximately one inch from the top margin, and ends on page 77 over two inches from the bottom margin. By the court's calculation, the section is 28 and two-thirds pages long. The memorandum contains a "Conclusion" which is over three pages long. The defendant includes the "Conclusion" when asserting that the "arguments and authorities" section is over 30 pages long. Midwest cites no basis for including the "Conclusion" section in its page count, and Ms. Weilert does not object. But the court finds Ms. Weilert has not exceeded the page limit.

Even if the court determined that Ms. Weilert's "Argument" section exceeded the page limit by approximately two pages, it is not inclined to strike the excess. Judicial economy and concise argument are purposes of the page limit. Judicial economy is not served when the court or the parties engage in counting the approximate characters per line in the parties' memoranda. Concise argument is not served by changing the font used. However, the court notes that Midwest used a font which produces more characters per line than does the font used by Ms. Weilert. If the court were to allow Ms. Weilert to resubmit her memorandum in a smaller font producing approximately 95 characters per line, it is reasonable to assume that her "Argument" and "Conclusion" sections would be reduced, and likely fit within the page limit. Midwest's motion to strike the "excess" is frivolous and will not be granted.

B. Statements of Fact

A review of Ms. Weilert's statements of fact reveals they are cumulative, repetitive, poorly organized, and — in the aggregate — anything but concise. She would have aided the court and Midwest had she made a statement of fact and then cited every place in the record where it can be supported. Instead, she chose to look at depositions and make each statement of fact which could be supported from that testimony. Consequently, where multiple testimony supports a fact, the fact appears multiple times.

However, the other requirements of the local rule are met. Ms. Weilert states the number of each of the movant's facts which she disputes. She separately numbers each statement of fact, cites to the portion of the record upon which she relies in her statement, and generally supports each fact by affidavit, declaration or deposition. Not every statement presents a genuine issue of material fact which would preclude summary judgment, but that is often the case in memoranda opposing summary judgment. Courts generally do not make it a practice to strike every statement which does not present a genuine issue of material fact. Rather, courts merely recognize that a genuine issue of material fact is not present and decide based upon the law.

Midwest requests that all of Ms. Weilert's statements be stricken because she was not as concise as she could have been, and perhaps should have been, in complying with Local Rule 56.1. The court will use its discretion in applying local rules to the case before it. See Amro v. Boeing Co., 153 F.3d 726, 1998 WL 380510 at *1 n. 1 (10th Cir.1998) (Table); accord Glover v. Heart of Am. Management Co., 38 F.Supp.2d 881, 883 (D.Kan. 1999). To strike a portion of a memorandum is a drastic measure which the court will apply only if the movant shows prejudice from a failure to strike. See Kay-Cee Enterprises, Inc. v. Amoco Oil Co., 45 F.Supp.2d 840, 842 n. 1 (D.Kan.1999).

Midwest can show no prejudice if the statements are not stricken. Midwest's argument, that it cannot respond to such an extensive list, fails for two reasons. First, Midwest filed a reply in which it responded to "the few `additional paragraphs' that might be relevant to the issues of law before the Court, and that are inconsistent with the testimony on record, even when the testimony is viewed in the light most favorable to the Plaintiff." (Def.'s Reply at 2). Midwest has reviewed the statements, determined — in its opinion — which are relevant, and responded. Any argument concerning waste of resources is moot. Second, if the statements are stricken, Ms. Weilert will be deprived of the opportunity to present the record which supports her arguments. Such a ruling would be prejudicial to Ms. Weilert, and the court would be compelled to search the record itself for genuine issues of material fact precluding summary judgment. See Amro, 153 F.3d 726, 1998 WL 380510 at *1, n. 1 (citing Downes v. Beach, 587 F.2d 469, 471 (10th Cir.1978) (the court may make an "assiduous review of the record," to determine a summary judgment motion)). Midwest's motion to strike is denied.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Adler v. WalMart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. See id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505; see Adler, 144 F.3d at 671 n. 1 (shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits." Id.

Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and...