In a report dated December 19, 1997, Magistrate Judge Andrew J. Peck recommended that defendant's motion be granted in part and denied in part. He concluded that the retaliation claim is time barred and that plaintiff's claim that the union violated Executive order 11246 fails to state a claim upon which relief may be granted. On the other hand, he recommended denial of so much of the motion as sought dismissal of the contention that the union had violated Title VII by failing fairly and adequately to represent plaintiff in his most recent grievance against his employer. It was the Magistrate Judge's view that there was little evidence as to the extent of the union's efforts on plaintiff's behalf and that summary judgment on that claim therefore would be inappropriate. The union has objected to so much of the Magistrate Judge's report as recommends denial of this aspect of its motion.
The first issue presented by the objections is whether the Court should consider the extensive affidavits and evidentiary materials the union has submitted in support of its objections. In this connection, it should be noted that the union's application before Judge Peck for leave to submit affidavits in support of a motion for reconsideration was denied on the ground that "any additional evidence is for trial, not a 2d bite at the apple." (Endorsement, Jan. 5, 1998).
Section 636(b)(1)(C) of the Judicial Code, 28 U.S.C. § 636(b)(1)(C), which provides for district court reviews of reports and recommendations by magistrate judges provides in part that "the judge may also receive further evidence . . ." in the course of such a review. (Emphasis added) But the statute is permissive, not mandatory. While there may be cases in which the receipt of further evidence is appropriate, there are substantial reasons for declining to do so as a general matter. First, permitting such piecemeal presentation of evidence is exceptionally wasteful of the time of both the magistrate and district judges, the former having been compelled to write an arguably useless report based on less than the universe of relevant evidence and the latter being deprived of the benefit of the magistrate judge's considered view of the entire record. Second, opposing parties would be put to the burden of proceedings which, to a considerable degree, would be duplicative. Third, there would be instances in which parties would be encouraged to withhold evidence, particularly evidence which might be embarrassing as well as helpful on the merits, in the expectation of using it before the district judge only if they failed to prevail before the magistrate judge on a more abbreviated showing. Finally, the routine consideration of evidence in support of objections which could have been presented before the magistrate judge would reward careless preparation of the initial papers.
In this case, the defendant was well aware that its burden under Fed. R. Civ. P. 56 was to demonstrate that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. In view of the plaintiff's claim that the union failed to represent him fairly and adequately in the grievance proceeding, the union was on notice that the details of exactly what it did and when -- which is the focus of the evidentiary materials it now seeks to submit -- necessarily were at the heart of its motion for summary judgment. It has offered no excuse whatever for failing to offer them in its initial papers. The Court therefore declines to consider them. Judge Peck was entirely correct in declining to afford the union a second bite at the apple.
As far as the merits of the union's objections are concerned, the Court has reviewed the entire record on the motion de novo. While there is a substantial basis for the union's position, it is far from clear that no reasonable trier of fact could find that the union was less than diligent in pursuing plaintiff's claim. That would be true, moreover, irrespective of whether the belated materials that the Court has excluded were considered in support of the objections.
Accordingly, the defendant's objections to the report and recommendation of Magistrate Judge Peck, dated December 19, 1997, are overruled. Insofar as the defendant seeks summary judgment dismissing plaintiff's claim that the union violated Title VII by failing adequately to pursue plaintiff's recent grievance, the motion is denied.
It should be noted that this does not fully dispose of the defendant's motion. The time for plaintiff to object to so much of the report as recommended dismissal of his retaliation and Executive Order 11246 claims has not yet expired. In consequence, the Court defers ruling on that aspect of the motion.
Dated: January 9, 1998
Lewis A. Kaplan
United States District Judge
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