White v. Roosevelt UFSD Board of ED.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DOUGLAS S. WHITE,

Plaintiff, MEMORANDUM & ORDER

15-CV-1035 (JS)(JMW)

-against-

ROOSEVELT UNION SCHOOL DISTRICT

BOARD OF EDUCATION,

Defendant.

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APPEARANCES

For Plaintiff: Douglas S. White, pro se

989 Clinton Place

Baldwin, New York 11510

For Defendant: Gerald S. Smith, Esq.

Silverman & Associates

445 Hamilton Avenue, Suite 1102

White Plains, New York 10601

SEYBERT, District Judge:

Roosevelt Union School District Board of Education

(“Defendant”) moves pursuant to Rule 56 of the Federal Rules of

Civil Procedure (“Rule”) seeking summary judgment (hereafter, the

“Motion”) (ECF No. 93), against Douglas S. White (“Plaintiff”).

Plaintiff, likewise, moves pursuant to the same Rule seeking

summary judgment against Defendant (hereafter, the “Cross-Motion”)

(ECF No. 105). For the reasons that follow, Defendant’s Motion is

DENIED WITHOUT PREJUDICE TO RENEW, and Plaintiff’s Cross-Motion is

also DENIED WITHOUT PREJUDICE TO RENEW.

BACKGROUND

I. Facts & Procedural History

The Court presumes the parties’ familiarity with the

background facts giving rise to the instant Motion and Cross-

Motion. Therefore, an extensive recitation of the same is not

provided; rather, the Court provides only those facts necessary to

determine the instant motions before it.

PROCEDURAL HISTORY

On July 24, 2020, Defendant filed a Rule 56.1 Statement

(Def.’s 56.1 Stmt., ECF No. 76), and a letter motion for a

premotion conference regarding a proposed motion for summary

judgment (PMC Request, ECF No. 77). After being granted numerous

extensions, Plaintiff filed a Rule 56.1 Counterstatement on

December 22, 2020. (Pl.’s 56.1 Counterstatement, ECF No. 89). To

his Counterstatement Plaintiff attached, inter alia, letters from

witnesses, and various audio and video recordings that he intended

to rely upon in opposing Defendant’s motion. (See id.) Plaintiff

made no attempt to authenticate any of the audio or video evidence

either through a personal affidavit or otherwise. (Id.) On April

23, 2021, the Court waived its premotion conference requirement

and set a briefing schedule on Defendant’s Motion. (See Apr. 23,

2021 Elec. Order.) On June 15, 2021, Defendant filed its Notice

of Motion, along with supporting documents. (See Motion; Support

Memo, ECF No. 94; Glenn Decl., ECF No. 95.) Copies of Defendant’s

Notice and supporting documents were served upon Plaintiff via

overnight mail. (Cert. of Serv., ECF No. 96). On February 28,

2022, Plaintiff opposed Defendant’s Motion and filed his Cross-

Motion. (See Cross-Motion.) Defendant replied to Plaintiff’s

Opposition and Cross-Motion, as well as Plaintiff’s Rule 56.1

Counterstatement on March 30, 2022. (See Def.’s 56.1

Counterstatement, ECF No. 107; Reply, ECF No. 109). On the same

day, Defendant served Plaintiff with those documents via regular

mail. (Cert. of Serv., ECF No. 108).

ANALYSIS

I. Legal Standard

A. Summary Judgement Required Notices

Pursuant to Local Civil Rule 56.2, “[a]ny represented

party moving for summary judgment against a party proceeding pro

se shall serve and file as a separate document, together with the

papers in support of the motion . . . [a] Notice to Pro Se Litigant

Opposing Motion for Summary Judgment.” E.D.N.Y. Local Civil Rule

56.2 (emphasis added). As part of this required notice, the

represented party is required to attach the full text of Federal

Rule of Civil Procedure (“Rule”) 56. (Id.) “The purpose of this

rule is to ensure that a party acting pro se ‘understands its

burden in responding to a motion for summary judgment, and the

consequences of failing to do so.’” Rivera v. Goulart, No. 15-

CV-2197, 2018 WL 4609106, at *3 (S.D.N.Y. Sept. 25, 2018) (quoting

Hartford Life Ins. Co. v. Einhorn, 452 F. Supp. 2d 126, 129

(E.D.N.Y. 2006)). The notice further serves the purpose of

informing the pro se litigant “that he or she must submit evidence

countering the facts asserted by the Defendant.” Covello v.

Depository Tr. Co., 212 F. Supp. 2d 109, 115 (E.D.N.Y. 2002). “The

failure to include a Rule 56.2 Statement with a motion for summary

judgment is grounds for the denial of the motion if it is not

otherwise clear from the record that the pro se litigant understood

the nature of the summary judgment motion.” Hartford Life Ins.

Co., 452 F. Supp. 2d at 120 (citing Vital v. Interfaith Med. Ctr.,

168 F.3d 615, 620-21 (2d Cir. 1999)); see also Vital, 168 F.3d at

620-21 (holding failure of the district court to apprise pro se

litigant of consequences of failing to respond to a motion for

summary judgment is grounds for reversal). The “linchpin of Rule

56.2 is whether a pro se [litigant] ultimately is aware of the

basic requirements and ramifications of the adjudication of the

summary judgment motion against him.” Forsyth v. Fed’n Emp‘t &

Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005), abrogated on

other grounds by Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.

618 (2007).

“Notwithstanding, this requirement ‘should not be

understood, however, to set down an unyielding rule that prohibits

district courts from acting upon motions for summary judgment

sought against pro se litigants in the absence of explanatory

notice.’” Carzoglio v. Paul, No. 17-CV-3651, 2022 WL 5244727, *2

(S.D.N.Y. Oct. 6, 2022) (quoting Sawyer v. Am. Fed’n Of Gov’t

Emps., AFL-CIO, 180 F.3d 31, 35 (2d Cir. 1999). “On the contrary,

the issue in each case remains whether from all of the

circumstances, including the papers filed by the pro se litigant,

it is reasonably apparent that the litigant understood the nature

of the adversary’s summary judgment motion and the consequences

for not properly opposing it.” Sawyer, 180 F.3d at 35.

II. Discussion

Here, Defendant failed to serve upon the pro se Plaintiff

the required notice and statement under Local Rule 56.2. (See

Case Docket, in toto.) While such failure is not fatal where the

pro se party’s papers and responses make clear that “he understood

the consequences of a summary judgment motion and the requirements

of a successful response,” see e.g. M.B. v. Reish, 119 F.3d 230,

232 (2d Cir. 1997), such is not the case here. Indeed, after its

careful review of the record, it is unclear to the Court whether

the Plaintiff truly understood “his burden in responding to such

a motion (i.e., that he must submit [admissible] evidence

countering the facts asserted by Defendants and raising issues of

fact for trial).” Carzoglio, 2022 WL 5244727, at *2.

Notwithstanding the fact that Plaintiff submitted opposition to

Defendant’s Motion and a Cross-Motion, much of the evidence upon

which Plaintiff relied is either inadmissible or is not presented

in an admissible format.1 See Sawyer, 180 F.3d at 34 (holding that

“in the absence of explicit notice, the mere existence of a

response does not automatically give rise to the inference that a

pro se litigant understood the nature of a summary judgment

motion.”) For example, Plaintiff has provided no admissible, sworn

affidavits either in support of his Cross-Motion or in opposition

to Defendant’s Motion.2 Additionally, to the extent Plaintiff

intended to rely upon video/audio exhibits, none of these exhibits

1 Additionally, while Plaintiff submitted a Rule 56.1

Counterstatement, the Court notes that many of Plaintiff’s

responses lack the requisite citations to admissible evidence.

2 The notarized letters submitted by Plaintiff are inadmissible as

they are neither presented in affidavit format nor are they sworn

to under penalties of perjury. See DeMars v. O’Flynn, 287 F. Supp.

2d 230, 242 (W.D.N.Y. 2003):

By definition, an affidavit is a sworn

document, declared to be true under the

penalties of perjury. . . . To be considered

in connection with a summary judgment motion,

the rule requires that submissions in the form

of statements be prepared as

affidavits. . . . Failure to submit

materials in this form will cause the

submission to be disregarded by the court in

its consideration of the pending motion.

(quoting 11 MOORE’S FEDERAL PRACTICE, § 56.14(1)(b) (Matthew Bender 3d

ed.)); Flowers v. Abex Corp., 580 F. Supp. 1230, 1233 n.2 (N.D.

Ill. 1984) (“Merely notarizing the signature does not transform a

letter into an affidavit.”) Similarly, to the extent Plaintiff

intended to rely upon witness statements presented in the form of

audio and/or video recordings, these too would be inadmissible for

the same reasons.

were authenticated and, consequently, would not be admissible

evidence that the Court could consider at the summary judgment

stage. See Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d

398, 419 (S.D.N.Y. 2011).

In view of the foregoing, in its review of the Case

Docket, as well as Plaintiff’s response to Defendant’s Motion, it

is unclear to the Court whether Plaintiff truly understood his

burden in responding to Defendant’s Motion, especially that, to

meet that burden, he could rely only upon admissible evidence.

Had Plaintiff been served with the required notice pursuant to

Local Rule 56.2, along with a copy of Rule 56, this may have not

been the case. As such, out of an abundance of caution,

Defendant’s motion must be denied.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that

Defendant’s Motion for Summary Judgment (ECF No. 93) is DENIED

WITHOUT PREJUDICE with leave to re-file in accordance with Local

Rule 56.2. Plaintiff’s Cross-Motion (ECF No. 105) is, likewise,

DENIED WITHOUT PREJUDICE TO RENEW.

IT IS FURTHER ORDERED, that on or before July 21, 2023

and after consulting with Plaintiff, Defendant shall file a letter

with this Court proposing a new briefing schedule on a renewed

motion for summary judgment or otherwise informing the Court how

the parties wish to proceed with this case.3 The parties are

further directed to detail all settlement efforts entered into

thus far, and whether the parties are amenable to referral to

mediation.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: July 10, 2023

Central Islip, New York

3 Should Plaintiff require assistance in properly responding to a

renewed summary judgment motion he may contact the Hofstra

University Pro Se Legal Assistance Program, located within the

Central Islip Courthouse, at (631) 297-2575 or PSLAP@Hofstra.edu.