                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    JOSEPH SIDNEY JOHNSON,
            Plaintiff,
           v.                                            Civil Action No. 17-883 (CKK)
    DISTRICT OF COLUMBIA, et al.,
                Defendants.

                                   MEMORANDUM OPINION
                                      (August 9, 2019)

          Defendants, the District of Columbia and five Metropolitan Police Department (“MPD”)

officers, 1 move to strike Plaintiff Joseph Sidney Johnson’s [48-2] Statement of Undisputed

Material Facts (“Plaintiff’s Statement”), which accompanies Plaintiff’s [48] Opposition to

Defendants’ Motion for Summary Judgment. Upon consideration of the briefing, 2 the relevant

legal authorities, and the record as a whole, the Court shall exercise its discretion to GRANT

Defendants’ [56] Motion to Strike Plaintiff’s Statement of Undisputed Material Facts (“Motion to

Strike”). Although the Court shall not rely on Plaintiff’s Statement when evaluating his [48]

Opposition to Defendants’ Motion for Summary Judgment, the Court shall consider his [48-1]

“Defendants’ Statement of Undisputed Material Facts with Plaintiff’s Objections” (“Plaintiff’s

Objections”). This Memorandum Opinion shall examine the relationship between Defendants’



1
 The defendant officers are Owais Akhtar, Amina Coffey, Francis Martello, Cameron Reynolds,
and A. Willis, Jr.
2
    The Court’s consideration has focused on the following documents:

      •   Mem. of P&A in Supp. of Defs.’ Mot. to Strike Pl.’s Stmt. of Undisputed Material Facts,
          ECF No. 56 (“Defs.’ Mem.”);
      •   Pl. Mr. Johnson’s Opp’n to Defs.’ Mot. to Strike, ECF No. 57 (“Pl.’s Opp’n”); and
      •   Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. to Strike Plainitff’s [sic] Stmt. of Undisputed
          Material Fact, ECF No. 58 (“Defs.’ Reply”).
                                                   1
[41-1] Statement of Undisputed Material Facts (“Defendants’ Statement”), Plaintiff’s Objections

thereto, Plaintiff’s Statement, and Defendants’ Motion to Strike that statement.

        This action arises from MPD’s alleged response to an incident that took place in the Gallery

Place area of Washington, D.C., on March 8, 2016. The Court previously summarized certain of

Plaintiff’s allegations about that incident in Johnson v. District of Columbia, 326 F.R.D. 346, 347

(D.D.C. 2018), and need not elaborate here.

        Following a contentious discovery period, the parties began summary judgment briefing.

Because Plaintiff chose not to move for summary judgment, which is his choice, the parties have

been briefing only Defendants’ [41] Motion for Summary Judgment. After the Court granted

Plaintiff’s three requests for extensions of time to file his opposition, Plaintiff at last did so, but “a

number of procedural issues” with that briefing prompted the Court to strike it sua sponte. Min.

Order of Feb. 21, 2019 (indicating that it otherwise would be “difficult for Defendants to respond

and for the Court to sift through the pleadings”); see also Min. Order of Feb. 20, 2019 (three

extensions). The Court made clear, in pertinent part, that

        The primary problems are with Plaintiff’s statements of material facts. Plaintiff
        shall strictly comply with Paragraph 6 of the Court’s [40] Scheduling and
        Procedures Order. 3 Although the Court expects full compliance with those
        instructions, the Court shall address glaring issues here. The revised statement(s)
        shall exclude all legal argument and legal citations; any excised legal argument or
        legal citations may be included in a revised Opposition brief. Each paragraph
        responding to Defendants’ statement of material facts shall briefly state whether
        Plaintiff admits or denies each fact. If Plaintiff admits in part and denies in part a
        given fact paragraph, then he shall very specifically distinguish which parts he
        admits and denies; there shall be no ambiguous responses of “denied with
        qualifications,” “not disputed” but offering additional information, or other
        permutations. Any denial importantly shall include a record citation and shall state
        in very summary form the factual content that contradicts Defendants’
        assertion. Contra, e.g., Defs.’ Stmt. of Undisputed Material Facts with Pl.’s Prelim.
        Objs., ECF No. [45-1], ¶ 6 (not citing any portion of record for contention that, inter


3
  As the paragraph later implies, the Court intended the plural “statements” to refer to both of
Plaintiff’s separate documents containing Plaintiff’s Objections and Plaintiff’s Statement.
                                                    2
       alia, “Mr. Johnson moved and did not stay in the same position”).

Min. Order of Feb. 21, 2019 (footnote added). The Court permitted Plaintiff to file a revised

version of his Opposition and accompanying materials, which he did. That filing prompted

Defendants’ pending Motion to Strike, which has now been fully briefed.

       At the threshold, Defendants could have communicated at greater length and secured a

clearer indication and confirmation of Plaintiff’s view before filing their Motion to Strike. See

LCvR 7(m); Defs.’ Reply, Ex. A, ECF No. 58-1 (the parties’ email correspondence). But, in an

effort to comply with Local Civil Rule 7(m), Defendants did contact Plaintiff for his view and, at

Plaintiff’s request, did identify the issues with some, albeit limited, specificity. Moreover,

Defendants’ Motion to Strike includes a Rule 7(m) certification stating that “Plaintiff has not

consented, and this Motion is opposed.” Defs.’ Mot. to Strike Pl.’s Stmt. of Undisputed Material

Facts, ECF No. 56, at 4. It is technically true that Plaintiff did not consent, but he never stated in

the parties’ email exchange that he decided to oppose. Nevertheless, the Court doubts that further

discussion would have been fruitful, given the scope of Defendants’ arguments in their Motion to

Strike, and Plaintiff’s continuing resistance thereto. English v. Washington Metro. Area Transit

Auth., 323 F.R.D. 1, 25-26 (D.D.C. 2017) (Meriweather, Mag. J.) (evaluating merits of motion for

protective order against Federal Rule of Civil Procedure 30(b)(6) deposition notice—despite

insufficient pre-filing conferral—due to “likely futil[ity]” of requiring further Local Civil Rule

7(m) discussion). Accordingly, “in the interest of judicial economy,” the Court finds that Rule

7(m) deficiencies shall not prevent the Court from reaching the merits of Defendants’ Motion to

Strike. Id. at 26 (citing Styrene Info. & Research Ctr., Inc. v. Sebelius, 851 F. Supp. 2d 57, 62 n.3

(D.D.C. 2012)). “Nonetheless, the Court admonishes counsel to pay greater heed to their duty to

confer during the course of this litigation.” Styrene Info. & Research Ctr., Inc., 851 F. Supp. 2d



                                                  3
at 62 n.3 (construing the duty to confer under Local Civil Rule 7(m) to require in person or

telephone communications).

       Turning to the merits of Defendants’ Motion to Strike, the Court notes that their motion

challenges only Plaintiff’s Statement, not his Objections. To the extent that Plaintiff’s Objections

are in conformance with the relevant rules, the Court will consider them in resolving Defendants’

Motion for Summary Judgment.

       As for the challenge to Plaintiff’s Statement, the Court begins with Local Civil Rule

7(h)(1), which requires in pertinent part that an opposing statement of material facts consist of a

“separate concise statement of genuine issues setting forth all material facts as to which it is

contended there exists a genuine issue necessary to be litigated, which shall include references to

the parts of the record relied on to support the statement.” “Requiring strict compliance with the

local rule is justified both by the nature of summary judgment and by the rule’s purposes.” Jackson

v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996)

(quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980) (addressing a prior, but materially

identical version of rule)) (internal quotation marks omitted). In short, summary judgment

briefing—including the affirmative and opposing statements of material facts—is designed to

“isolate[ ] the facts that the parties assert are material, distinguish[ ] disputed from undisputed

facts, and identif[y] the pertinent parts of the record.” Id. at 151 (quoting Gardels, 637 F.2d at

773) (internal quotation marks omitted). The briefing does not do so when the statement is long,

the putative disputes are not genuine, the facts are not material, non-factual material is included,

and/or references to the record are lacking. The casualty is the Court’s ability “to maintain docket

control and to decide motions for summary judgment efficiently and effectively.” Id. at 150.




                                                 4
       The Court of Appeals upheld a strict application of the local rule in Jackson v. Finnegan,

Henderson, Farabow, Garrett & Dunner. In the trial court below, the defendant(s) had moved for

summary judgment, and the plaintiff had filed two versions of what could generously be construed

as a responsive statement of material facts. See id. at 148, 153. The court granted the defense’s

motion to strike one version for failure to comply with a materially identical predecessor of current

Local Civil Rule 7(h)(1), and the court evidently did not rely on the other version, namely a

“‘relevant facts’ section” of the plaintiff’s brief. Id. at 148-49. The Court of Appeals found that

the district court had not abused its discretion, and observed the following about the “relevant

facts” version:

       Twenty-nine pages long, the section hardly complies with the rule’s requirement
       that statement [sic] of genuine disputed material issues be “concise.” Replete with
       factual allegations not material to Jackson’s substantive claims and repeatedly
       blending factual assertions with legal argument, the “relevant facts” section does
       not satisfy the purposes of a Rule 108(h) statement. In order to identify material
       disputed issues that would preclude the entry of summary judgment, the court
       would have to sift and sort through the record, that is, engage in time-consuming
       labor that is meant to be avoided through the parties’ observance of Rule 108(h).
       Requiring the court to treat Jackson’s “relevant facts” statement as his Rule 108(h)
       statement would therefore undermine the purposes of the rule by improperly
       placing the burden on the court, rather than on the opposing party or his counsel, to
       “winnow the wheat from the chaff.” Bell, Boyd, & Lloyd v. Tapy, 896 F.2d 1101,
       1103 (7th Cir. 1990).

Jackson, 101 F.3d at 153 (footnote omitted).

       Much the same could be said about Plaintiff’s Statement in this case. At 18 pages long,

the Statement contains a total of 78 numbered paragraphs, some of which actually contain multiple

paragraphs. E.g., Pl.’s Stmt. ¶ 76 (four paragraphs). Some of those paragraphs contain a great

many facts. E.g., id. ¶ 6 (11 separate bullet points about events in a video). The length and

complexity of Plaintiff’s Statement stands in sharp contrast to Defendants’ Statement, which is

only 5 pages and 26 paragraphs. Suffice it to say, Plaintiff’s Statement is not concise.



                                                 5
       Despite the Court’s express instruction otherwise in its Minute Order of February 21, 2019,

Plaintiff’s Statement also includes both legal argument and legal authority. E.g., id. ¶ 12 (arguing,

inter alia, that “the mere fact that an officer fears ‘a hostile reaction in a neighborhood he did not

consider police-friendly cannot substitute’ for seizures and arrests without probable cause” and

concluding with citation to In re T.L., 996 A.2d 805, 811 (D.C. 2010)); id. ¶ 73 (“Nothing in any

of the depositions or other discovery materials provided by defendants indicates that Officer

Akhtar or any other officer who helped him with the arrest report reviewed the video to verify the

probable cause facts provided by Officers Akhtar and Reynolds and Willis. See Fed. R. Civ. P.

56(c)(1)(B).”). Some of Plaintiff’s argument—about the law or the facts—is so conspicuous that

it does not even take place in numbered paragraphs; rather, it appears in bold-typeface headers as

if the Statement were a brief. E.g., id. at 7 (“Defendants’ presentation of Officer Reynolds’s

attack and savage beat down of Mr. Johnson presents a fake narrative paints [sic] a

misleading picture.”). Arguments and invocations of legal authority are, of course, not facts,

which alone are what should appear in Plaintiff’s Statement.

       Plaintiff’s Statement also contains facts that are not material, or whose materiality to

Defendants’ Motion for Summary Judgment is not readily apparent. E.g., id. ¶ 3 (“Little brother

was a juvenile.”); id. ¶ 78 (“Only Mr. Wilkins clenched his fists afterwards – in pain.”). To the

extent that facts in his Statement are material because of Defendants’ material facts and/or

arguments, the Court expects that Plaintiff would address the issue in his Objections and/or in his

opposition brief. Only material facts additional to those that Defendant has raised and/or Plaintiff

has objected to should appear in Plaintiff’s Statement.

       In light of the Court’s analysis above, to accept Plaintiff’s Statement would require the

Court to do the very winnowing exercise that the Court of Appeals says the trial court need not do.



                                                  6
Moreover, Plaintiff has already had a chance to correct his Statement. See Min. Order of Feb. 21,

2019. He was required to bring it into compliance with Paragraph 6 of the Court’s Scheduling and

Procedures Order, which states that “[t]he Court strictly adheres to the dictates of Local Civil

Rule 7(h)” and “strongly encourage[s]” the parties to “carefully review [Jackson] on the subject

of Local Civil Rule 7(h).” Scheduling and Procedures Order, ECF No. 40, ¶ 6(a). Plaintiff was

expressly advised of the relevant rule and the controlling case, and Plaintiff did not heed that

instruction.

       The difficulties of addressing Plaintiff’s Statement would not be reserved to the Court.

Defendants would be prejudiced in preparing their response to such a flawed version of what Local

Civil Rule 7(h) requires. For example, as they observe, Defendants presumably would need to

“make improper arguments” to counter Plaintiff’s arguments. Defs.’ Mem. at 3-4. They also

would need to scrutinize certain of Plaintiff’s paragraphs that consist entirely of images to estimate

the material fact(s) asserted by Plaintiff, and to respond accordingly. Id. at 5-6; Pl.’s Stmt. ¶¶ 29,

30, 49. Defendants’ trouble responding to Plaintiff’s defective Statement would further inhibit the

Court’s efforts to “decide [the pending] motion[ ] for summary judgment efficiently and

effectively.” Jackson, 101 F.3d at 150.

       Plaintiff need not articulate his own version of the story to support a motion that he makes;

indeed, he does not pursue summary judgment, for he believes that genuine issues of material fact

preclude relief at this stage. Pl.’s Opp’n to Defs.’ Mot. for Summ. J., ECF No. 48, at 1-2. To

make his point, it is enough for Plaintiff to deny, as necessary, the pertinent facts offered by

Defendants and to add any material facts that Defendants have omitted. Plaintiff’s lengthy

Statement goes well beyond the latter additions. It is not as if striking Plaintiff’s Statement would

leave Plaintiff without factual material for his Opposition to Defendants’ Motion for Summary



                                                  7
Judgment, because the Court would consider his Objections. Plaintiff has disputed all but seven

of the paragraphs in Defendants’ Statement; if the Court agrees with some or all of Plaintiff’s

contentions, then the Court may find that Defendants are not entitled to summary judgment, or are

entitled only in part. And, of course, the Court would consider the record upon reviewing

Defendants’ Statement and Plaintiff’s Objections. See Winston & Strawn, LLP v. McLean, 843

F.3d 503, 505 (D.C. Cir. 2016) (“The District Court ‘must always determine for itself whether the

record and any undisputed material facts justify granting summary judgment.’” (quoting Grimes

v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)). 4

       Nor does the Court need to proceed paragraph by paragraph through Plaintiff’s Statement

to determine which paragraphs, if any, are (in)appropriate. For the reasons set forth above, his

paragraphs are generally problematic. The Court would exclude many of the paragraphs, leaving

few left. To the extent that Plaintiff does have genuine issues of material fact to raise, the Court

shall consider his effort to do so in his Objections.

       Defendants have discharged their burden to show that the Court should strike Plaintiff’s

Statement for failure to comply with Local Civil Rule 7(h). Jackson, 101 F.3d at 154 (recognizing

trial court’s discretion to grant motion to strike “under the plain terms” of materially identical

predecessor rule). None of Plaintiff’s other arguments affect the Court’s decision.

       For the foregoing reasons, in an exercise of its discretion, the Court shall GRANT

Defendants’ [56] Motion to Strike Plaintiff’s Statement of Undisputed Material Facts. The Clerk


4
 Plaintiff reads Burke v. Gould, 286 F.3d 513, 516-20 (D.C. Cir. 2002) to “requir[e] that the district
court consider evidence submitted pursuant to Federal Rule 56(c), regardless of the non-movant’s
compliance with the local rule.” Pl.’s Opp’n at 6. But that case relies on a prior version of Federal
Rule 56(c) that has been materially revised in the interim. See Fed. R. Civ. P. 56 advisory
committee’s notes to 2010 amendments (considering current subdivision (c) to be “new”). In any
case, the Court shall consider the record, even though Plaintiff has not complied with Local Civil
Rule 7(h).

                                                  8
of Court shall STRIKE from the record Plaintiff’s [48-2] Statement of Undisputed Material Facts.

Defendants shall be given an opportunity to reply to Plaintiff’s [48] Opposition to Defendants’

Motion for Summary Judgment, including Plaintiff’s [48-1] “Defendants’ Statement of Undisputed

Material Facts with Plaintiff’s Objections” but exclusive of Plaintiff’s stricken Statement of

Undisputed Material Facts.

       An appropriate Order accompanies this Memorandum Opinion.

Dated: August 9, 2019

                                                          /s/
                                                   COLLEEN KOLLAR-KOTELLY
                                                   United States District Judge




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