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Francis Howlan v. Hireright Solutions

July 21, 2011


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



On August 11, 2010, plaintiff Francis Howlan ("plaintiff") commenced this action in New York State Supreme Court, County of Fulton. Plaintiff, who was represented by counsel at the time the complaint was filed, asserted two causes of action: negligence and libel. On September 13, 2010, defendants removed the action to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332.*fn1 Presently before the Court is defendants' motion for summary judgment.



Before discussing the facts and background of this case, the Court must address the deficiencies in the parties' submissions. The Second Circuit requires that a pro se litigant defending against a summary judgment motion be notified as to the nature and consequences of summary judgment. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999); see also Local Rule 56.2 (Notice to Pro Se Litigants of the Consequences of Failing to Respond to a Summary Judgment Motion).*fn2 Here, defendants failed to provide plaintiff with any notice and failed to meet the requirements of Local Rule 56.2. In support of the motion for summary judgment, defendants submitted a "Statement of Material Facts" pursuant to Local Rule 7.1(a)(3).*fn3 Plaintiff failed to respond to Defendant's Statement of Material Facts.

Despite these omissions, courts are flexible with their interpretation of the Local Rules to, "prevent the elevation of procedure over substance where the evidence submitted by the parties has pointed to the existence of disputed material of facts". Rivera v. Nat'l R.R. Passenger Corp., 152 F.R.D. 479, 483 (S.D.N.Y. 1993) (citations omitted). While both parties failed to comply with the applicable local rules, the Court has broad discretion to decide whether to overlook the parties' failures and perform an independent review of the record. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001); see also Monahan v. City of N.Y. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000); see also Cruz v. Church, 2008 WL 4891165, at *3, n.4 (N.D.N.Y. 2008) (collecting cases) (the plaintiff was not so experienced at federal court litigation that the special leniency normally afforded to pro se litigants should have been diminished). If the district court chooses to conduct such an independent review of the record, any verified complaint filed by the plaintiff should be treated as an affidavit in opposing a motion for summary judgment. Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Given plaintiff's pro se status and defendants' failure to comply with the Local Rules, this Court will, in its discretion, conduct such a review.

Upon review, the Court will accept defendants' Statement of Material Facts as true only to the extent that the facts are supported by evidence in the record. See Orraca v. Pilatich, 2008 WL 4443274, at *3 (N.D.N.Y. 2008); see also N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005). Local Rule 7.1 expressly states, "The record, for purposes of the Statement of Material Facts, includes the pleadings, depositions, answers to interrogatories, admissions and affidavits." See N.D.N.Y.L.R. 7.1(a)(3).


Hireright Solutions, Inc.*fn4 (defendant) engaged in the practice of assembling information for the purposes of furnishing reports to third parties.*fn5 Plaintiff claims that defendants selected, assembled and compiled information and published and distributed the information to the commercial trucking industry to apprise and inform the industry as to the "moral, physical and credibility [sic] of personnel in the labor market". Plaintiff claims that from 2001 through April 2010, defendant published and distributed false and malicious information relating to plaintiff. In the complaint, plaintiff claims:

That said false and defamatory statement was published by the defendants that the plaintiff Francis Howlan, date of birth June 19, 1955 committed criminal transgressions in various counties of New York State among other false and malicious publications indicated the plaintiff's name, date of birth and social security number matched the plaintiff as a sex offender.

Pl. Complt. at ¶12.

Plaintiff claims that from April 2010 through May 2011, he was denied employment with nine different companies due to Hireright's publication of his employment and criminal/sexual offense.

In support of the motion for summary judgment, defendants provided a declaration from Jerri McCraw, a Compliance and Litigation Support Associate employed by Hireright. McCraw's declaration was prepared, "on the basis of my knowledge of Hireright's practices, on the basis of the review of documents maintained by Hireright ...

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