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Lath v. BMS Cat and Amica Mutual Insurance Co.

United States District Court, D. New Hampshire

April 17, 2018

Sanjeev Lath
BMS Cat and Amica Mutual Insurance Company


          Landya McCafferty, United States District Judge

         This case now consists of nine claims against two defendants, including four claims against BMS Cat (“BMS”), a company with which Sanjeev Lath contracted in the aftermath of a fire at his unit in the Oak Brook Condominium. Before the court is Lath's motion for summary judgment on Cause 22, which is a claim for common law conversion.[1] BMS objects on both procedural and substantive grounds. For the reasons that follow, Lath's motion for summary judgment is denied.

         I. The Legal Standard

         A movant is entitled to summary judgment where he “shows that there is no genuine dispute as to any material fact and [that he] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Moreover, under the Federal Rules of Civil Procedure, in summary judgment practice: (1) “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials, ” Fed.R.Civ.P. 56(c)(1)(A); and (2) “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence, ” Fed.R.Civ.P. 56(c)(2). Finally, in this court, “[a] memorandum in support of a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue.” LR 56.1(a). A similar requirement applies to memoranda in opposition to summary judgment motions. See LR 56.1(b).

         II. Discussion

         BMS argues that Lath's motion should be denied because: (1) his memorandum does not comply with Local Rule 56.1(a); (2) none of the exhibits he attached to his motion are authenticated by affidavit or otherwise, which means that he has produced no admissible evidence to support his argument for summary judgment; (3) even if the court were to accept Lath's evidence, he cannot establish each of the elements of his conversion claim by conclusive evidence; and (4) Lath's failure to pay BMS for the services it provided gave BMS the legal right to retain Lath's property. In response, Lath concedes that “the requirements of [L]ocal Rule 56.1(a) [were] missed in oversight by Plaintiff, ” doc. no. 260 at 7, but he does not attempt to cure that oversight in his reply. In any event, before making his concession regarding Local Rule 56.1(a), Lath challenges the format in which BMS provided discovery, attacks two of the affidavits that BMS submitted in support of its objection, and criticizes BMS's Local Rule 56.1(b) statement for being insufficiently specific.

         BMS's first argument for denying Lath's motion carries the day. As Lath concedes, his memorandum does not include the statement of facts required by Local Rule 56.1(a). “Ordinarily, the appropriate remedy for such an omission is a denial of the motion.” Maryea v. Baggs, No. 13-cv-318-LM, 2016 WL 1060226, at *2 n.3 (D.N.H. Mar. 15, 2016). The reason for that general rule is readily apparent; a Local Rule 56.1(a) statement provides the baseline for the legal analysis necessary to rule on a motion for summary judgment, and without a proper starting point, any consideration of the merits would, necessarily, have speculative quality, amounting to little more than an academic exercise. In any event, under the circumstances of this case, the court can see no reason for deviating from the normal course. Accordingly, Lath's motion for summary judgment is denied because his memorandum of law does not include a Local Rule 56.1(a) statement. That said, in the interest of aiding the parties by addressing issues that are adequately developed, and with the hope that guidance on these procedural issues will allow the parties to focus on substantive legal issues, the court turns to several matters that the parties have raised in their summary judgment briefing.

         A. Lath's Evidence

         In its objection, BMS argues that in addition to failing to produce a proper Local Rule 56.1(a) statement, Lath also failed to produce any properly authenticated evidence in support of his motion for summary judgment. The court agrees.

         As BMS notes, Lath supports his summary judgment motion with 20 exhibits, mostly documents. Those exhibits, however, are not attached to an affidavit. That is a problem, because “[t]o be admissible at the summary judgment stage, documents must be authenticated and attached to an affidavit that meets the requirements of Rule 56(e) (personal knowledge and competency).” Bank of N.Y. Mellon v. Lezdey, Civ. No. 13-11118-MLW, 2016 WL 5539759, at *6 n.9 (D. Mass. Sept. 22, 2016) (quoting Rhodes v. JPMorgan Chase & Co., 562 F.Supp.2d 186, 181 n.12 (D. Mass. 2008); citing Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000)). While Lath's failure to properly support his summary judgment motion would appear to be an independent ground for denying it, it is sufficient for the moment to remind Lath of the requirement for producing evidence that is admissible at summary judgment.[2]

         In his reply to BMS's objection to his summary judgment motion, Lath argues that because BMS produced certain documents in discovery by e-mail, purportedly in violation of the court's scheduling order, BMS has waived any challenge to the authenticity of those documents. Lath cites no authority for that proposition, and the court is aware of none.

         Lath further argues that BMS's challenge to the documents he attached to his motion should be rejected because he attached many of those documents to his complaint, and BMS did not challenge their authenticity in its answer. While it is true that “[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes, ” Fed. R. Civ. 10(c), incorporation of a document by reference into an unverified complaint, such as the one in this case, does not make that document admissible at summary judgment, c.f. Barth v. City of Peabody, Civ. Action No. 15-13794-MBB, 2017 WL 114403, at *2 (D. Mass. Jan. 11, 2017) (“Because the complaint was not signed under the pains and penalties of perjury, it cannot be considered part of the summary judgment record.”) (citing Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 689-90 (1st Cir. 1993)). Moreover, because a complaint merely recites factual allegations, BMS was under no obligation, in its answer, to challenge the authenticity of the documents that Lath attached to his complaint.

         B. BMS's Affidavits

         In his reply, Lath challenges two of the three affidavits that BMS submitted in support of its objection to his motion for summary judgment. While Lath's failure to properly produce evidence to support his motion means that BMS's obligation to produce evidence was never triggered in the first place, the court will, nevertheless respond to Lath's challenges to ...

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