United States District Court, W.D. New York
June 17, 2005.
MARY NILAND, Plaintiff,
BUFFALO LABORERS WELFARE FUND, BUFFALO LABORERS LOCAL 210, THOMAS L. PANEK, Defendants.
The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
DECISION and ORDER
By papers filed June 15, 2005 (Doc. No. 24), Plaintiff moves to
modify this court's order entered June 14, 2005, denying
Plaintiff's motion, pursuant to Fed.R.Civ.P. 56(f), to allow
Plaintiff to depose a witness, Jennifer McMahon ("Ms. McMahon"),
to assist Plaintiff in opposing Defendants' summary judgment
motion. In support, Plaintiff submits an affidavit of Harvey P.
Sanders, Esq., dated June 15, 2005 ("Sanders Affidavit II").
Treating Plaintiff's motion as a motion for reconsideration, the
motion is DENIED.
The Sanders Affidavit II concedes that Plaintiff's original
motion failed to describe with particularity the steps taken to
assure Plaintiff of Ms. McMahon's expected cooperation. While the
Sanders Affidavit II purports to describe the particular efforts
made by Plaintiff to assure herself of Ms. McMahon's purported
cooperation, a careful reading of the Sanders Affidavit II fails
to show such particulars. For example, while Plaintiff asserts
Ms. McMahon agreed to cooperate by agreeing prior to January 31,
2005 to provide the expected affidavit in support of Plaintiff's
position, the Sanders Affidavit II fails to particularize when
and to whom such representation was actually made. In any event, no explanation is provided for Plaintiff's
failure to promptly seek such an affidavit immediately upon
service of Defendants' summary judgment motion, on March 14,
2005, instead of delaying Plaintiff's Rule 56(f) relief request
until June 3, 2005, three days prior to June 6, 2005, the due
date for filing Plaintiff's opposition to Defendants' motion.
Plaintiff continues to ignore that Plaintiff had the burden to
establish that Defendants are covered employers for purpose of
her Title VII claim. Accordingly, the risk that Ms. McMahon's
testimony as may be necessary to meet this burden (which
Plaintiff should have expected would be tested on Defendants'
summary judgment motion) could not reasonably be obtained within
the discovery period or by the response date to Defendants'
motion must fall upon Plaintiff. Plaintiff's attorney's decision
to `rest on his oars' while awaiting Defendants' motion does not
require a remedy from the court.
Plaintiff also fails to demonstrate that the court acted
erroneously in finding that the facts upon which Ms. McMahon
would aver in opposition to Defendants' motions were cumulative
of evidence of which Plaintiff herself already had knowledge and
could offer under oath in opposition to summary judgment.
Additionally, a careful reading of the Sanders Affidavit II
reveals that much, if not all, of the information pertaining to
the question of joint-employment that Plaintiff claims would be
provided by Ms. McMahon is based on obvious hearsay. For
instance, Plaintiff states that Ms. McMahon "saw incoming
correspondence and other documentation." Sanders Affidavit II ¶
6. Testimony based on such correspondence or documents would
patently constitute inadmissible hearsay, and Plaintiff makes no
effort to demonstrate otherwise. The same is true of Plaintiff's
representation that Ms. McMahon learned relevant facts from "Fund
employees. . . ." Id. Moreover, Plaintiff again fails to
explain why Ms. McMahon's testimony is essential to Plaintiff's
ability to defeat Defendants' request for summary judgment.
As such, Plaintiff fails to establish the court overlooked
facts or based its decision on clearly erroneous law. Griffin
Industries, Inc. v. Petrojam, Ltd., 72 F.Supp. 365, 368
(S.D.N.Y. 1999). Therefore, no grounds for reconsideration are
presented. In sum, the instant motion is a "day late and dollar short."
Based on the foregoing, Plaintiff's motion (Doc. No. 24) is DENIED.
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