The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Siragusa, J. This case, in which Plaintiff alleges that defendants engaged in unfair labor practices, is before the Court by Plaintiff's motion (Docket No. 57) and Defendants' cross-motions (Docket Nos. 58 & 64), all seeking summary judgment. For the reasons stated below, Defendants' cross-motions are granted and Plaintiff's motion is denied.
Western District of New York Local Rule of Civil Procedure 56.1 provides in pertinent part as follows:
RULE 56.1 STATEMENTS OF FACTS ON MOTION FOR SUMMARY JUDGMENT
(a) Upon any motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
(b) The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
(c) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
(d) Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, as required by Federal Rule of Civil Procedure 56(e). All such citations shall identify with specificity the relevant page, and paragraph or line number of the authority cited. All cited authority, such as affidavits, relevant deposition testimony, responses to discovery requests, or other documents containing such evidence, shall be separately filed and served as an appendix to the statement prescribed by subsections (a) or (b), supra, in conformity with Federal Rule of Civil Procedure 56(e), and denominated "Plaintiff's/Defendant's Appendix to Local Rule 56.1 Statement of Material Facts." Any cited authority that has otherwise been served and filed in conjunction with the motion need not be included in the aforementioned appendix.
Consistent with Irby v. New York City Transit Authority, 262 F.3d 412 (2d Cir. 2001), both 1199 SEIU ("the Union") and the University of Rochester ("the University") with respect to their cross-motions for summary judgment, each complied with Local Rule 56.2, which requires that a pro se party be alerted as follows:
Plaintiff is hereby advised that the defendant has asked the Court to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS/HER COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE/SHE DOES NOT RESPOND TO THIS MOTION by filing his/her own sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial.
In short, Rule 56 provides that plaintiff may NOT oppose summary judgment simply by relying upon the allegations in the complaint. Rather, plaintiff must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements, which may include plaintiff's own statements, must be in the form of affidavits. Plaintiff may file and serve affidavits that were prepared specifically in response to defendant's motion for summary judgment.
Any issue of fact that plaintiff wishes to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by defendant. If plaintiff does not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true. Judgment may then be entered in defendant's favor without a trial.
Pursuant to Rules 7.1(e) and 56.1 of the Local Rules of Civil Procedure for the Western District of New York, plaintiff is required to file and serve the following papers in opposition to this motion: (1) a memorandum of law containing relevant factual and legal argument; (2) one or more affidavits in opposition to the motion; and (3) a separate, short, and concise statement of the material facts as to which plaintiff contends there exists a genuine issue to be tried, followed by citation to admissible evidence. In the absence of such a statement by plaintiff, all material facts set forth in defendant's statement of material facts not in dispute will be deemed admitted. A copy of the Local Rules to which reference has been made may be obtained from the Clerk's Office of the Court.
If plaintiff has any questions, he/she may direct them to the Pro Se Office. Plaintiff must file and serve any supplemental affidavits or materials in opposition to defendant's motion no later than the date they are due as provided in Rule 56.1(e) of the Local Rules of Civil Procedure for the Western District of New York.
Plaintiff's motion for summary judgment, consisting of thirty-seven pages in total, starts with a combination of a legal memorandum and an affirmation, which Plaintiff signed under penalties of perjury. Following that, he attached numerous documents, including correspondence, pay charts, answers to interrogatories and copies of statutes.
In his complaint, Plaintiff alleges that both Defendants engaged in unfair labor practices by failing to comply with the collective bargaining agreement ("CBA") between the Union (of which he was a member) and the University. He contends that since the University did not employ progressive discipline for his alleged misconduct, and the Union failed to fairly represent him in his ...