Use care when objecting to proposed facts

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Attorneys responding to a summary judgment motion must be very careful when objecting to the form of their opponent’s statement of facts.

Even a legitimate, good faith objection, if unsuccessful, can be considered an admission of the allegations.

Kevin Cracco brought suit in Illinois federal court against his former employer, Vitran Express Inc., alleging that he was terminated in violation of the Family Medical Leave Act (FMLA).

Vitran’s defense was that, while Cracco was on leave, his replacement employees discovered numerous problems, and, after investigating them, it determined Cracco was at fault and terminated him for cause.

Consistent with that theory, Vitran moved for summary judgment.

Paragraph 33 of its proposed statement of material facts stated as follows:

“When [the replacement] employees arrived at the Markham terminal, they discovered several problems. The terminal was disorganized, employees were not following procedures, freight was sitting on the dock, damaged freight was hidden in trailers, safety concerns were noted, customers were complaining and overtime was not being handled properly.”

In response, Cracco objected to this paragraph on the ground that it was not short and concise, but, rather, constituted a compound paragraph alleging multiple facts.

The district court disagreed; because Cracco did not respond to the substance of the allegations, the court deemed the paragraph admitted by Cracco, and granted summary judgment in favor of Vitran.

Cracco appealed, but the Seventh Circuit affirmed on March 17 in an opinion by Judge Kenneth F. Ripple.

Because Cracco did not file any “response” to the substance of the alleged facts, the court held that those facts were properly deemed admitted for purposes of the summary judgment motion.

Cracco argued that, because the paragraph listed seven different alleged problems, it was not “short and concise,” as required, and it was not possible for him to either admit or deny the paragraph. However, the court disagreed, finding that each of the individual allegations related to the larger allegation that Vitran employees found the terminal in a state of disarray upon Cracco’s beginning his leave.

The court held, “The district court no doubt could have required that Vitran ‘unbundle’ the factual allegation in Paragraph 33, but its determination that such ‘unbundling’ was not a necessary predicate to Mr. Cracco’s compliance with the rule was, in the context presented here, hardly an abuse of discretion (emphasis in original).”

Turning to the merits, the court held that, in light of all the problems discovered by the employer, Cracco’s termination was not retaliation for exercising his rights under FMLA.

Marquette law professor Jay E. Grenig, who teaches Civil Procedure, and who served as Reporter for the Committee that drafted the Eastern District of Wisconsin’s local rules, said he thought the result was “very harsh.”

Grenig said, “I don’t think the district court was wrong to deny the objection, but the appropriate action would be to give the plaintiff an opportunity (a few days) to respond to the substance of the allegations.”

By deeming the allegations admitted, Grenig said that the court is strongly discouraging even valid objections to the form of allegations.

“To sanction a party, for raising an unsuccessful objection, by deeming the allegation admitted is harsh,” Grenig said. “That’s a ‘gotcha.’”

Similar Rules:

The local rule of the Northern District of Illinois is substantively identical to those in Wisconsin federal courts.

The Illinois rule at issue required that the party opposing summary judgment file “a response to each numbered paragraph in the moving party’s statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” N.D. Ill. R. 56.1(b)(3)(b).

Similarly, E.D.Wis.R. 56.2(b)(1) provides that the nonmoving party must file “A specific response to the movant’s proposed findings of fact, clearly delineating only those findings to which it is asserted that a genuine issue of material fact exists…”

In the Western District, Rule II.C of Judge Barbara B. Crabb’s rules for summary judgment provide, “Unless the responding party puts into dispute a fact proposed by the moving party, the court will conclude that the fact is undisputed.”