United States District Court, D. New Jersey
PAUL WILLIAMS and MAKSWILL GRP. CORP. Plaintiffs,
YING ZHOU, GUOLIANG TIAN, and JIHAHAO  INT'L GRP., LTD. Defendants.
McNulty, United States District Judge.
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
review the parade of misadventures that constitutes the
procedural history of the motion (DE 133) now before me.
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).
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.).
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).
December 11, 2014, Matthew Weisberg filed a notice of
appearance as plaintiffs' counsel. (DE 20).
January 19, 2015, Mr. Tian and Jiahao filed a motion to
vacate plaintiffs' motion for default judgment. (DE 24).
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).
January 26, 2015, Mr. Weisberg withdrew as plaintiffs'
counsel (rendering plaintiffs, again, pro se). (DE 28).
August 19, 2015, Magistrate Judge Hammer denied
plaintiffs' motion for default judgment against Mr. Tian
and Jiahao as moot. (DE 39).
August 25, 2015, Mr. Tian and Jiahao filed an answer to the
complaint. (DE 40).
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,
that time, on November 10, 2015, Nicholas M. Fausto filed a
notice of appearance as substitute counsel for plaintiffs.
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).
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
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
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).
October 2017, the parties again pursued various ongoing
discovery disputes. (DE 116).
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. (DE 127; see also DE 36).
Defects in the parties' submissions
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). 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).
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.
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
discuss some of the shortcomings in the parties' factual
submissions on this motion.
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). At certain points, however, Mr. Williams
properly sets forth actual facts based on his personal
knowledge-and those I will consider.
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. ¶
I will disregard such statements in the Irwin Certification.
See Fed. R. Civ. P. 56(c)(4) and L. Civ. R. 7.2(a).
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.
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).
egregiously, plaintiffs' briefs cite alleged
"material facts" that are nowhere to be found in
their statement of material facts. (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.
too, have failed to support many of their factual assertions
in their responsive statement of facts. (See e.g.,
DR ¶¶ 4-6, 9-10). In addition, defendants cite to