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Sancom, Inc. v. Qwest Communications Corp.

January 21, 2010

SANCOM, INC., A SOUTH DAKOTA CORPORATION, PLAINTIFF,
v.
QWEST COMMUNICATIONS CORPORATION, A DELAWARE CORPORATION, DEFENDANT AND COUNTERCLAIMANT,
v.
SANCOM, INC., A SOUTH DAKOTA CORPORATION; AND FREE CONFERENCING CORPORATION, A NEVADA CORPORATION, COUNTERCLAIM DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER

Plaintiff, Sancom, Inc. (Sancom), and counterclaim defendant, Free Conferencing Corporation (Free Conference)*fn1 , move to strike Qwest's Statement of Facts in Support of Responses in Opposition to Motions for Summary Judgment (Qwest's Statement of Facts), filed by defendant, Qwest Communications Corporation (Qwest). See Qwest's Statement of Facts, Docket 165. In the alternative, Sancom and Free Conference move the court to strike Qwest's Statement of Facts and order Qwest to comply with Rule 56.1(A) of the Local Rules of Practice for the United Stated District Court for the District of South Dakota and Rule 56(e)(2) of the Federal Rules of Civil Procedure.*fn2 Qwest opposes the motion.

BACKGROUND

Sancom and Free Conference move for summary judgment on several of Sancom's claims against Qwest and on several of Qwest's counterclaims against Sancom and Free Conference. Docket 144, amended at Docket 204. In support of their motion, Sancom and Free Conference filed a memorandum of law (Docket 145), a statement of material facts as to which no genuine dispute exists (Docket 147), and a notice of supplemental authority (Docket 154). In response, Qwest filed a 50-page opposition to Sancom and Free Conference's motion for summary judgment (Docket 163), a 32-page statement of facts responding to Sancom and Free Conference's statement of facts (Docket 166), Qwest's Statement of Facts (the 82-page document at issue here), and a declaration by counsel for Qwest with 107 exhibits attached (Docket 167). Then Sancom and Free Conference filed a reply brief and a reply statement of facts (Dockets 182 and 183), Qwest filed a surreply (Docket 189), Sancom and Free Conference filed a reply to Qwest's surreply (Docket 196), Qwest filed a notice of supplemental authority (Docket 197), and Sancom and Free Conference filed a response to Qwest's notice of supplemental authority (Docket 199).

Sancom and Free Conference move to strike Qwest's Statement of Facts on the grounds that this filing violates Local Rule 56.1's requirement that a statement of facts be short, concise, and material; it contains improper legal argument; and it is not properly supported as required by Fed. R. Civ. P. 56(e)(2). The court considers Sancom and Free Conference's first two arguments together.

FORMAT AND CONTENT REQUIREMENTS OF LOCAL RULE 56.1

The local rules include format and content requirements for a statement of material facts filed in conjunction with a summary judgment motion. With respect to format, Local Rule 56.1(A) provides that "[a]ll motions for summary judgment shall be accompanied by 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." D.S.D. CIV. LR 56.1(A). Further, "[e]ach material fact shall be presented in a separate numbered statement with an appropriate citation to the record in the case." Id. Local Rule 56.1(B) requires the party opposing a motion for summary judgment to "identify any material facts as to which it is contended that there exists a genuine material issue to be tried." D.S.D. CIV. LR 56.1(B). The purpose of local rules like Local Rule 56.1(A) and (B) "is to distill to a manageable volume the matters that must be reviewed by a court undertaking to decide whether a genuine issue of fact exists for trial. [They are] designed 'to prevent a district court from engaging in the proverbial search for a needle in the haystack.' " Jones v. United Parcel Serv., Inc., 461 F.3d 982, 990 (8th Cir. 2006) (discussing W.D. Mo. L.R. 56.1(a)) (quoting Northwest Bank & Trust Co. v. First Ill. Nat'l Bank, 354 F.3d 721, 725 (8th Cir. 2003)). "[T]he application of local rules is a matter peculiarly within the district court's province." Yannacopoulos v. General Dynamics Corp., 75 F.3d 1298, 1305 (8th Cir. 1996) (internal quotations and citation omitted). The court is vested with a large measure of discretion in applying local rules. Silberstein v. IRS, 16 F.3d 858, 860 (8th Cir. 1994).

Local Rule 56.1(A) requires that the moving party's statement of material facts be a short, concise statement of the material facts and that each material fact be presented in a separate numbered statement with an appropriate citation to the record. With respect to the nonmoving party's identification of any material facts as to which the nonmoving party contends that there exists a genuine material issue to be tried, however, Local Rule 56.1(B) does not explicitly state any form or content requirements. The court interprets the local rules as applying the requirements stated in Local Rule 56.1(A) to a separate statement of material facts filed by the nonmoving party. See id. (noting that district court has large measure of discretion in applying local rules). Thus, if the nonmoving party chooses to file a separate statement of material facts, the statement must be short and concise, and each material fact must be presented in a separate numbered statement with an appropriate citation to the record. The court's interpretation helps identify and clarify the factual matters in dispute, thereby furthering the purpose of Local Rules 56.1(A) and (B). See Jones, 461 F.3d at 990 (explaining that the purpose of local rules is to distill to a manageable volume the matters that must be reviewed by a court on summary judgment).

With respect to content, Local Rule 56.1 allows for statements of fact, not argument. The purpose of Local Rule 56.1 statements of fact is to identify the relevant evidence supporting the material facts, not to make factual or legal arguments. Consequently, a party may not use its statement of facts to circumvent the 25-page limitation*fn3 on legal briefs. Statements that are argumentative, rather than factual, may be stricken from the filing. See Northwest Bank & Trust Co., 354 F.3d at 725 ("The district court found that Northwest's voluminous filings were replete with conclusory allegations and legal argument, obfuscating any concise and specific statements of material fact that were contained within their pages. . . . In fact, although not required to do so by the Local Rules, the district court exercised some lenity in considering those specific facts referenced by Northwest in its brief.").

When a party fails to comply with the local rules, the district court has discretion to allow the party a chance to correct its failings. Attorney's Process & Investigation Servs., Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, No. C05-0168, 2009 WL 1298291, at *2-*3 (N.D. Iowa May 8, 2009). But district courts are not required to give an offending party this opportunity. Jones, 461 F.3d at 990 ("The district court is not required to study laboriously a 480-page pleading and the record materials cited therein to determine that it is non-compliant with the rules, and then afford the party another opportunity to file a pleading that complies.").

Here, Qwest's 82-page, 195-paragraph Statement of Facts is divided into ten sections. The court will discuss each section individually. For the reasons outlined in detail below, the court finds that a large portion of Qwest's Statement of Facts violates Local Rule 56.1's format and content requirements. With respect to format violations, the court will give Qwest an opportunity to correct its failings and resubmit its statement of facts. With respect to content violations, the court strikes paragraphs containing legal and factual arguments, but to the extent Qwest believes these paragraphs contain statements of material fact, the court will allow Qwest to state the material facts in separately numbered statements in its resubmitted statement of material facts.

I. Traffic Pumping and How it Works

In Section I (paragraphs 1-6), Qwest sets out and explains its allegation that Sancom and Free Conference are engaged in a "traffic pumping" scheme. The court finds that Section I consists primarily of legal and factual arguments, as well as immaterial information about Qwest's allegations against other local exchange companies in other cases before other courts, rather than simple statements of fact. Thus, paragraphs 1-6 are stricken. If Qwest believes that these paragraphs contain any material facts, Qwest may include these facts in separately numbered statements in its corrected statement of facts.

II. Facts Surrounding Farmers and Merchants' Manufacture of Evidence Before the Federal Communications Commission

In Section II (paragraphs 7-34), Qwest discusses the background, decision, and other facts about Qwest's case against Farmers and Merchants Telephone Company of Wayland, Iowa. Qwest asserts facts to show that the Federal Communications Commission (FCC)'s decision in favor of Farmers and Merchants was procured by fraud. See Qwest's Statement of Facts, ¶¶ 14-33 (discussing Qwest Communications Corp. v. Farmers and Merchants Mutual Telephone Company, 2007 WL 2872754, 22 F.C.C.R. 17973 (2007) (memorandum opinion and order)). The court finds that Section II does not state "material facts as to which it is contended that there exists a genuine material issue to be tried," as required by Local Rule 56.1(B). The court interprets Local Rule 56.1(B) as requiring the nonmoving party to state material facts relating to the case before the court, not facts relating to a case involving different parties before a different tribunal. Qwest is free to attack the applicability, persuasiveness, and precedential value of the FCC's decision in Farmers and Merchants in its legal brief, but facts regarding that case are not properly included in a statement of facts in the present case.*fn4 Thus, paragraphs 7-34 of Qwest's Statement of Facts are stricken.

III. Sancom is Involved in a Traffic Pumping Scheme with Free Conference and Was Engaged in a Traffic ...


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