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Cousins v. Higgins

United States District Court, D. Maine

December 17, 2018





         The plaintiffs have appealed summary judgment in the defendants' favor to the First Circuit Court of Appeals.[1] Now, for the second time during the appeal, the plaintiffs have also moved for relief from judgment in this district court. Following the First Circuit's instructions on how a district court should resolve such motions during an appeal, Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979), and following an earlier Procedural Order and Colocotroni Memorandum explaining my delay (ECF No. 104), I now Deny this second motion.

         The plaintiffs bring their motion under Fed.R.Civ.P. 60(b)(1), claiming “mistake, inadvertence, surprise or excusable neglect.” Pls.' Mot. at 1 (ECF No. 99). They say that when they objected to the defendants' motion for summary judgment on February 9, 2018, Pls.' Opp'n to Defs.' Mot. for Summ. J. (“Pls.' Opp'n”) (ECF No. 80), they:

inadvertently submitted a 13 page document in duplicate instead of the correct 13 p. PLAINTIFFS' STATEMENT OF MATERIAL FACT (documented from the record). Plaintiff[s'] mistakenly believed that the document had been filed properly. Plaintiffs acted in good faith and had no comprehension of what had been done.

Pls.' Mot. at 1. They also say: “For this error in submission, we apologize. The error was not discovered by us until (November 4, 2018). There is simply too much at stake to lose because of the difficulty in ascertaining that proper filing was accomplished.” Id. They now have docketed a 13-page “Plaintiffs Statement of Material Fact” (“Pls.' Statement”) (ECF No. 100) that includes citations to the record.

         Because I could not find on the ECF docket any duplicate 13-page document-and because the defendants argued that the plaintiffs had filed only one document, 25 pages long, not a 13-page document, and that the “claimed mistake does not make sense, ” Defs.' Opp'n to Pls.' Second Mot. For Relief from J. at 1 (“Defs.' Opp'n”) (ECF No. 103)-I asked the Clerk's Office to elucidate what actually happened in the February filing. Procedural Order and Colocotroni Mem. at 3. The Clerk's Office has now done so in the Declaration of Michelle Thibodeau (ECF No. 107). It appears that on February 9, 2018, the plaintiffs emailed the Clerk's Office two copies of the first thirteen pages (numbered 1 through 13) of their objection to the defendants' summary judgment motion, as well as a single copy of the last twelve pages (numbered 14 through 26, but with no page 16). When the Clerk's Office inquired by email, “Did you intend to file duplicate documents?”, the plaintiffs responded by email, “We did not intend to send the duplicate.” As a result, the Clerk's Office combined one of the first two 13-page filings numbered 1 through 13 with the succeeding 12-page filing numbered 14 through 26 (with no page 16) to generate a single 25-page document (1 through 13 and 14 through 26, with no page 16) as the Opposition. See Pls.' Opp'n. That explains why no 13-page document is discernible on ECF.[2]


         I now Deny the plaintiffs' second motion for relief for the following reasons:

         1. The Magistrate Judge carefully explained, in advance, the summary judgment filing requirements to these pro se plaintiffs at the Local Rule 56 pre-filing conference in December 2017. Tr. at 13-14, 21-24 (ECF No. 87).

         2. The plaintiffs still have not provided an Opposing Statement of Material Facts to rebut the 126-paragraph “Defendants' Statement of Material Facts” (ECF No. 76), as Local Rule 56(c) requires. “The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule.” Id. Therefore, as the Magistrate Judge stated on page 4 of the Recommended Decision that I adopted: “Under the Local Rule, Defendants' statements are ‘deemed admitted' because Plaintiffs failed to dispute Defendants' statements- by denying or qualifying the statements, and by citing record evidence to support their denials and qualifications. D. Me. Loc. R.56(f).” (ECF No. 85.)

         3. What the plaintiffs now have filed instead is apparently a counter-statement, or a statement of “additional facts, ” see Local Rule 56(c), dated February 9, 2018. The filing is virtually identical[3] to what they already included in their docketed February opposition to summary judgment, albeit now with citations to the record, something not included in their original filing. They provide no reason why it took them until November 4, 2018, a date during the appeal, to discover their February “error” in not filing this document. They could have checked the ECF docket at any time after their February filing, especially because the Clerk's Office alerted them promptly that in fact they had filed a duplicate document; the defendants pointed out the plaintiffs' failure in March[4]; and the Magistrate Judge also highlighted the omission on the fourth page of his Recommended Decision in June (ECF No. 85).[5] These observations and challenges from the Clerk's Office, the defendants, and the Magistrate Judge should have alerted the plaintiffs to their omission, and there is nothing about November that explains why they have only now discovered their “error.”[6]

         4. The Magistrate Judge stated explicitly in his Recommended Decision that I adopted:

In their summary judgment submission, Plaintiffs include factual statements that could conceivably be material to the summary judgment assessment. Plaintiffs, however, do not cite to supporting record evidence. Without citation to the record, Plaintiffs' assertions do not constitute record evidence for purposes of summary judgment. “[T]he Court is required to maintain a strict neutrality between opposing parties and even though a more forgiving reading may be appropriate for a pro se party in the summary judgment context, it is also true that ‘[j]udges and magistrate judges who review these filings must be able to rely ...

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