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Williams v. Zhou

United States District Court, D. New Jersey

March 27, 2019



          Kevin McNulty, United States District Judge.

         The plaintiffs, Paul Williams and Makswill Group Corporation ("Makswill"), have brought this action against the defendants, Ying Zhou, Guoliang Tian, and Jiahao International Group, Ltd. ("Jiahao"). Now before the Court is the plaintiffs' motion for summary judgment (DE 133) on Counts Two and Three of the Amended Complaint (DE 81). For the reasons set forth below, 1 will deny Plaintiffs' motion.

         I. Background [2]

         a. Procedural history

         I review the parade of misadventures that constitutes the procedural history of the motion (DE 133) now before me.

         On September 3, 2014, the plaintiffs, who were then pro se, their first complaint. (DE 1). After a couple of failed attempts, Ms. Zhou filed an answer to the complaint on October 26, 2014. (DE 5; see DE 3, 4). On October 21, 2014, pro se plaintiff Mr. Williams requested entry of default against defendants Mr. Tian and Jiahao for failure to plead or otherwise defend. On the same date, Mr. Williams filed a motion for default judgment against both defendants. The clerk of the court entered default on October 29, 2014. (See DE6, 7, 9).

         On October 21, 2014, some seven days after the complaint had been answered (DE 3; see also DE 5), the plaintiffs, still pro se, a motion for summary judgment (DE 10). The Court administratively terminated that motion without prejudice on March 14, 2016, because it was premature and in any event defective in that it included no statement of undisputed facts. (DE 72; see Loc. Civ. R. 56.1.).

         On November 3, 2014, Ms. Zhou filed a motion to dismiss for lack of jurisdiction, improper venue, and failure to state a claim. (DE 12, 13). On November 14, 2014, Magistrate Judge Hammer terminated that motion without prejudice because Fed.R.Civ.P. 12(b) requires that a motion to dismiss be filed prior to filing a responsive pleading. (DE 19).

         On December 11, 2014, Matthew Weisberg filed a notice of appearance as plaintiffs' counsel. (DE 20).

         On January 19, 2015, Mr. Tian and Jiahao filed a motion to vacate plaintiffs' motion for default judgment. (DE 24).

         On January 20, 2015, all defendants filed a motion for judgment on the pleadings. (DE 25). This Court administratively terminated defendants' motion, without prejudice, on March 14, 2016, for reasons related to the filing of an amended complaint, as discussed infra. (DE 72).

         On January 26, 2015, Mr. Weisberg withdrew as plaintiffs' counsel (rendering plaintiffs, again, pro se). (DE 28).

         On August 19, 2015, Magistrate Judge Hammer denied plaintiffs' motion for default judgment against Mr. Tian and Jiahao as moot. (DE 39).

         On August 25, 2015, Mr. Tian and Jiahao filed an answer to the complaint. (DE 40).

         Between October and December 2015, the parties engaged in a series of skirmishes regarding discovery, particularly interrogatories and depositions. [See e.g., DE 47-48, 52, 58-59, 62-64, 66).

         During that time, on November 10, 2015, Nicholas M. Fausto filed a notice of appearance as substitute counsel for plaintiffs. (DE 61)

         After several months of failed attempts, (DE 71, 76), on April 22, 2016, plaintiffs filed a motion for leave to file an amended complaint. (DE 77). On May 10, 2016, Magistrate Judge Hammer granted plaintiffs' motion (DE 80). On May 12, 2016, plaintiffs filed their Amended Complaint. (DE 81).

         After a first failed attempt (DE 84), on July 29, 2016, defendants filed a motion to dismiss the Amended Complaint for lack of jurisdiction. (DE 87). On January 6, 2017, I denied defendants' motion. I ruled that the Court did possess subject matter jurisdiction, but that additional discovery would be required on the issue of personal jurisdiction. (DE 98).

         On June 8, 2017, defendants filed another motion to dismiss-this time for failure to prosecute the action. (DE 101). On June 9, 2017, Magistrate Judge Hammer administratively terminated defendants' motion because it was premature and because defendants failed to file a brief with their motion. (DE 102).

         After the close of discovery on the personal jurisdiction issue (DE 104), on August 13, 2017, defendants filed a renewed motion to dismiss for lack of personal jurisdiction. (DE 107). On January 30, 2018, I denied that motion. (DE 119, 120).

         During October 2017, the parties again pursued various ongoing discovery disputes. (DE 116).

         On March 6, 2018, plaintiffs filed a second premature motion for summary judgment (DE 121). Magistrate Judge Hammer administratively terminated that motion on May 9, 2018, for having been filed in violation of the amended pretrial scheduling order.[3] (DE 127; see also DE 36).

         b. Defects in the parties' submissions

         On August 28, 2018, plaintiffs filed the motion for partial summary judgment that is now before the Court. (DE 133). On October 15, 2018, Defendants filed an opposition that was not procedurally compliant. (DE 142 to 146; see DE 150). On December 28, 2018, I filed an amended order striking the defendants' opposition for failure to comply with L. Civ. R. 56.1, and granting defendants leave to re-file their opposition. (DE 150).[4] On January 31, 2019, defendants refiled their opposition to plaintiffs' motion for summary judgment. (DE 153). On February 11, 2019, plaintiffs filed their reply to defendants' opposition (DE 158), and, on February 19, 2019, plaintiffs filed an amended version of that reply. (DE 161).

         In support of their briefs, each party has submitted documents that do not conform with Fed.R.Civ.P. 56 and the Local Civil Rules. In light of the history of this action I will survey some of the governing procedures.

         First, Fed.R.Civ.P. 56(c)(4) provides that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Second, the Local Civil Rules require that:

Affidavits, declarations, certifications and other documents of the type reference in 28 U.S.C. § 1746 shall be restricted to statements of fact within the personal knowledge of the signatory. Argument of the facts and the law shall not be contained in such documents. Legal arguments and summations in such documents will be disregarded by the Court and may subject the signatory to appropriate censure sanctions or both.

L. Civ. R. 7.2(a). Finally, Local Civil Rule 56.1 requires that in statements of material facts and responsive statements, the parties must cite to "affidavits and any other documents in support of that motion." The court expects that parties will meaningfully comply with Loc. Civ. R. 56.1 by, inter alia, providing specific page or paragraph citations to the record, and more critically, by coherently identifying the documents that are cited. See e.g., Perez v. Camden Municpal Court, No. 14-cv-7473 (RBK/JS), 2016 WL 7338524, at *l n. 3 (D.N.J. Dec. 19, 2016) (noting that defendants "repeatedly cite[d] to exhibits without identifying page or paragraph numbers, including a deposition transcript that totals more than 60 pages. Such indefinite citations hamper the Court's responsibility to identify whether disputes of material fact exist, and the Court cautions that other courts in this District have disregarded facts that are not properly attributed to the record").

         I now discuss some of the shortcomings in the parties' factual submissions on this motion.

         First, in support of summary judgment, plaintiffs have submitted the affidavit of plaintiff Paul Williams. (DE 133-3). In violation of L. Civ. R. 7.2(a), the affidavit is littered with legal and factual argument. (See, e.g., 133-3 p. 7 ("Defendants cannot unjustly benefit from the work Plaintiffs performed on their behalf. . . . Plaintiffs asks the Court to award reasonable attorney's fees and pre and post-judgment interest on any amount the Court will award."). Mr. Williams includes a critique of each instance in which he believes the defendants gave "false/inconsistent statements" that "go to their credibility." [See DE 133-3 p. 8-10).[5] At certain points, however, Mr. Williams properly sets forth actual facts based on his personal knowledge-and those I will consider.

         Second, I consider the attorney's certification of defendants' counsel, Steven B. Irwin. (DE 154). First, Mr. Irwin does not appear to possess personal knowledge of any of the events alleged in this action. Second, Mr. Irwin submits legal arguments in the guise of facts. His certification states under penalty of perjury, for example, that "Plaintiffs summary judgment motion . . . should be denied in its entirety" (DE 154 ¶ 10); that "virtually all of the material facts are in dispute" (id. at ¶ 9); and that "Plaintiffs memorandum of law submitted as part of their summary judgment motion contains statements that are blatantly untrue." (id. ¶ 2)).[6] I will disregard such statements in the Irwin Certification. See Fed. R. Civ. P. 56(c)(4) and L. Civ. R. 7.2(a).

         Finally, both parties have, in other instances, failed to meaningfully comply with L. Civ. R. 56.1. The flaws range from the merely discourteous to the substantive.

         Plaintiffs, in their statement of facts, have broadly cited to exhibits consisting of collections of emails, without page citations. (See PRDR | 1 (citing Ex. B)). Plaintiffs' statement of facts frequently cites to the problematic Williams affidavit, see supra, adding to the difficulty. Several of the paragraphs in plaintiffs' reply statement of facts are purely rhetorical. (See, e.g., PRDR ¶¶ 5, 10).

         Most egregiously, plaintiffs' briefs cite alleged "material facts" that are nowhere to be found in their statement of material facts.[7] (E.g., DE 133-2, 158. See L. Civ. R. 56.1.) Such facts cannot be treated as undisputed; by omitting them from the Rule 56.1 statement, plaintiffs have (1) deprived the defendants of the opportunity to properly respond and (2) failed to properly define and narrow the issues for the Court.

         Defendants, too, have failed to support many of their factual assertions in their responsive statement of facts. (See e.g., DR ΒΆΒΆ 4-6, 9-10). In addition, defendants cite to ...

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