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Mayfield v. Bethards

United States District Court, D. Kansas

August 30, 2017

KENT MAYFIELD and TONYA MAYFIELD, Plaintiffs,
v.
JIM BETHARDS, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE.

         Plaintiffs claim that Jim Bethards, a Harvey County Sheriff's Deputy, violated their Fourth Amendment rights by shooting and killing one of their dogs. They seek actual and punitive damages under 42 U.S.C. § 1983. The matter is now before the court on the following: plaintiffs' motion for summary judgment (Dkt. 111); plaintiffs' motion for default judgment and sanctions (Dkt. 115); and defendant's motion for summary judgment (Dkt. 123).

         I. Plaintiffs' Motion for Summary Judgment (Dkt. 111).

         A review of plaintiffs' motion shows that it fails to comply with Rule 56 or with the court's local rules. It contains various factual assertions, none of which are shown to be supported by materials contemplated by Rule 56. The factual assertions are interspersed with legal arguments and, with one or two exceptions, include no references or citations to the record.

         Rule 56 provides in part that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A party asserting that a fact cannot be genuinely disputed “must support the assertion by … citing to particular parts of the record, including depositions, … affidavits … or other materials.” Fed.R.Civ.P. 56(c)(1)(A). Plaintiffs' motion does not comply with this requirement. As defendant Bethard points out, “[t]here are no statements of fact for him to admit or deny.” Dkt. 112 at 4.

         If a party fails to properly support an assertion of fact as required by Rule 56, the court may give the party an opportunity to properly support the fact, consider the fact undisputed for purposes of the motion, grant summary judgment if the motion and supporting materials show that the movant is entitled to it, or issue any other appropriate order. Fed.R.Civ.P. 56(e).

         The court concludes the appropriate course here is to deny plaintiffs' motion for summary judgment. Although plaintiffs' reply brief (Dkt. 116) attempts to correct the original deficiencies, raising new factual matters and arguments in a reply brief opens the door to yet another round of briefs. See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006) (“if the court relies on new material or new arguments in a reply brief, it may not forbid the nonmovant from responding to these new materials”). The court concludes that additional briefing would result in unnecessary delay and expense and that the balance of factors does not warrant re-opening summary judgment briefing. See Fed. R. Civ. P. 1 (the rules shall be administered to secure the just, speedy, and inexpensive determination of the action). Because plaintiffs have failed to show their entitlement to judgment in accordance with the standards of Rule 56, their motion for summary judgment is denied.

         II. Plaintiffs' Motion for Default Judgment and Sanctions (Dkt. 115).

         Plaintiffs complain that defendant failed to timely serve them with a paper copy of defendant's summary judgment response. Dkt. 115 at 1. They argue this was not a mistake but was “an intentional inadvertence and further excusable neglect.” Id. at 2. Plaintiffs ask the court “to hold the [defendant's] attorneys in Civil Contempt of Court and to request the appropriate coercive sanctions for failure to comply to the Federal Rules of Procedures.” Id. at 3.

         Defendant essentially concedes that when he electronically filed his response, he did not serve a paper copy on plaintiffs as required by the rules.[1] Dkt. 119. Defendant says that a copy of the brief was emailed to plaintiffs on April 17 after plaintiffs asserted a lack of service, and that plaintiffs were able to file their reply (Dkt. 116) on April 20, 2017. Defendant contends plaintiffs suffered no prejudice from the failure, claims that plaintiffs failed to follow Fed.R.Civ.P. 11(c)(2) in seeking sanctions, and argues that default judgment is not warranted in any event.

         The court concludes no sanctions are warranted. First and foremost, plaintiffs point to no legal prejudice from having received the response on April 17th rather than on or around April 4th. Plaintiffs requested no additional time to file their reply brief and ultimately filed it on April 20th. Defendant does not challenge the reply brief as untimely. Plaintiffs thus suffered no harm from the delay. Second, plaintiffs do not say when they first became aware of defendant's response. And third, plaintiffs cite nothing to show that defendant's failure to serve a paper copy was anything other than inadvertent. Plaintiffs' claim that defense counsel has engaged in a pattern of “blatant abuses and violations” is utterly without support.

         III. Defendant's Motion for Summary Judgment (Dkt. 123).

         A. Summary Judgment Standards. Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. Haynes v. Level 3 Communs., 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The nonmovant must then bring forth specific facts showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all evidence and reasonable inferences in the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

         B. Uncontroverted Facts. Defendant first argues his motion for summary judgment should be granted as uncontested because plaintiffs filed their response ten days beyond the deadline. Dkt. 129 at 4. The court rejects this argument for essentially the same reasons it rejected plaintiffs' motion for default judgment. Defendant shows no prejudice from this ten-day delay, he makes no showing that plaintiffs acted in bad faith, and such a brief delay does not merit forfeiture of plaintiffs' claims.

         A more meritorious argument is that defendant's statement of uncontroverted facts should be deemed admitted by virtue of plaintiffs' failure to properly controvert it. Under the local rules, each fact in dispute must be numbered by paragraph, refer with particularity to the portions of the record relied upon, and state the number of the movant's fact that is disputed. D. Kan. R. 56.1(b)(1). Additionally, facts on which an opposition memorandum is based “must be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories, and responses to requests for admission.” Id. at 56.1(d). Plaintiffs' memorandum largely fails to do so. The court understands that plaintiffs are acting pro se and may be unfamiliar with the rules of evidence and procedure in federal court, but having chosen to proceed pro se they are bound to follow the rules and abide by the consequences if they fail to comply with the rules. The court cannot act as their lawyer, cannot construct arguments on their behalf, and will not search the record for material facts in support of their claim. Under the standards of Rule 56, the court finds the following facts to be uncontroverted for purposes of summary judgment.

         Plaintiffs Kent and Tonya Mayfield are residents of Harvey County, Kansas. They reside at 1020 South ...


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