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BOMBARD v. GENERAL MOTORS CORP.

December 18, 2002

PAT J. BOMBARD, PLAINTIFF
V.
GENERAL MOTORS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Howard G. Munson, Senior District Judge

BACKGROUND

About 10:15 am on February 25, 1996, plaintiff was operating his 1995 Chevrolet Blazer motor vehicle ("Blazer") in an easterly direction on Route 20 in the Town of Skaneateles, Onondaga County, New York. He was returning from an errand and was accompanied by his son. Plaintiff was traveling at approximately 55 miles per hour as he neared the intersection of Route 20 and Country Line Road. Simultaneously, a southbound milk tanker truck ("truck") on Country Line Road being driven by James Marshall, also arrived at the intersection. When plaintiff saw that the Marshall truck failed to halt the intersection stop sign, he slowed the Blazer and steered to the left. The driver's side front section of the Blazer impacted the right, rear, dual wheels of the milk tanker truck knocking the truck over on its side. The collision heavily damaged the Blazer and perpetrated fractures of the right femur, pelvis and rib cage and a forehead laceration to the plaintiff.

In this product liability action, plaintiff alleges that a defect existed in the Blazer's anti-lock breaking switch ("ABS") which resulted in a higher impact speed with the truck and that this increased speed caused his personal injuries to be more severe than they would have been. had the ABS not been defective.

Discussion

Currently before the court is defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and for an order precluding the testimony of plaintiff's expert's witness. Pursuant to Rule 7.1(b)(1), of the Rules of Local Practice for the United States District Court for the Northern District of New York ("Local Rule"), defendant served this motion and supporting documents upon plaintiff on April 1, 2002. Therefore, pursuant to internal court management procedures, the motion is considered filed as of April 1, 2002. Under Local Rule 7.1(b)(1)(B), opposition papers must be served upon the moving party within twenty-one days from the date of service of the motion papers. On April 30, 2002, plaintiff transmitted the motion to the court for filing, and advised in its accompanying cover letter that no opposition papers had been received from the defendant.

On May 1, 2002, a scheduling notice was served on the parties setting a motion return date of June 14, 2002. The notice contained a notice to plaintiff's attorney about the consequences of failing to respond to a summary judgment motion, and advising that a written request must be filed to make a response outside of the time limits. No written request to make a response outside the time limits was made by plaintiff.

In the instant case, defendant filed a Statement of Material Facts not in dispute, as required by Local Rules, in addition to three affidavits and a Memorandum of Law. Plaintiff did not respond to defendant's motion by the date required by the Local Rules. This failure in and of itself is sufficient to deem as consent to the granting of the motion. However, plaintiff finally filed a response on May 22, 2002.

The response consisted of plaintiff's attorney's affidavit unsupported by a memorandum of law, plaintiff's expert's affidavit without the qualification of expert witness documentation required by Rule 26(a)(2)(b) of the Fed.R.Civ.P., and plaintiff's affidavit theorizing that defendant was somehow responsible for the removal and concealment of the ABS switch, vital piece of evidence, from the wrecked Blazer while it was in defendant's possession. Plaintiff's response also failed to include a Statement of Material Facts in opposition to defendant's Statement of Material Facts.

Local Rule 7.1(a)(1) requires that a Memorandum of Law be submitted with opposition to all motions. Moreover, Local Rule 7.1(a)(3) necessitates that a summary judgment motion must be supported with a statement setting forth the material facts that the moving party contends are not at issue. An opposing party must file a response to the movant's Statement of Material Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation in the record where the factual issue arises. Failure to file a response constitutes an admission of the movant's asserted non-disputed facts. Id. Additionally, failure to oppose a motion is deemed consent to the granting of the motion. Local Rule 7.1(b)(3).

While the court recognizes that plaintiff's attorney chose a state forum for presentation of this case prior to its removal to federal court, the consequences for failure to follow the Local Rules of the Northern District of New York are clear in these circumstances.

This District's Local Rules requirements are not empty formalities. Local Rules such as 7.1(a)(3) "serve to notify the parties of the factual support for their opponent's arguments, but more importantly inform the court of the evidence and arguments in an organized way — thus facilitating its judgment of the necessity for a trial." Little v. Cox's Supermarkets, 71 F.3d 637, 641. Each of these functions is critical. If a party does not follow with these rules it is unfair to the opposition, which has a right to be informed of the factual bases of his rival's case and the specific foundations for those contentions of fact. Non-compliant conduct is also adverse to the conservation of judicial resources, which are most efficiently used when the parties meet their adversarial duties in a tightly orchestrated, lucid manner.

The courts of the Northern District have adhered to a strict application of Local Rule 7.1(a)(3)'s requirement on summary judgment motions. See Bundy v. American Corporation v. K-Z Rental Leasing, Inc., 2001 WL 237218 (N.D.N.Y 3/9/01); No. 910 Welfare, Annuity and Pension Funds v. Dexelectrics, Inc., 98 F. Supp.2d 265, 270 (N.D.NY. 2000). Consequently, the court will accept the properly supported facts contained in defendant's Statement of Material facts as true for the purposes of this motion.

The failure of plaintiff's attorney to accompany his affidavit with a memorandum of law leaves no legal argument from plaintiff for the court's consideration. Even if it were argued that plaintiff's attorney's affidavit is the functional equivalent to a memorandum of law, it is inadequate; there is not a single citation to any statute or case decision or a comprehensive explanation of the legal theories upon which plaintiff's claims are based.

Plaintiff's attorneys failure to file a statement of material facts in opposition to defendant's requires the court to take as true defendant's presentation of the facts. Local Rule 7.1(a)(3); Dusanenko v. Mahoney, 726 F.2d 82 (2d Cir. 2984) (per curiam). Having done so, the court turns to the moving party's second burden, establishing that, ...


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