United States District Court, D. New Jersey
Michael A. Shipp United States District Judge
matter comes before the Court upon Defendants Verizon New
Jersey Inc. and Verizon Communications Inc.'s
(collectively, "Defendants'") Motion for
Partial Summary Judgment. (ECF No. 13.) Plaintiff Sightseer
Enterprise, Inc. (-'Plaintiff') opposed (ECF No. 15),
Defendants replied (ECF No. 16), and Plaintiff filed a
sur-reply (ECF No. 20). The Court has carefully considered
the parties' submissions and decides the matter without
oral argument pursuant to Local Civil Rule 78.1. For the
reasons set forth below, Defendants' Motion is denied.
Civil Rule 56.1 specifies that on a motion for summary
judgment, "the movant shall furnish a statement which
sets forth material facts as to which there does not exist a
genuine issue, ... citing to the affidavits and other
documents submitted in support of the motion."
Statement of Material Undisputed Facts ("DSMUF,"
ECF No. 13-1) provides that the toll-free "800"
telephone service Defendants provided to Plaintiff "was
governed by the General Terms and Conditions controlling the
Firm Rate Advantage Plan provided to Plaintiff." (DSMUF
¶¶ 1-2.) Defendants support this fact with citation
to a certification and attached exhibit. The certification of
Kathleen M. DalCortivo asserts that "Verizon's
General Terms and Conditions controlling the Firm Rate
Advantage Plan [were] provided to Plaintiff."
(DalCortivo Cert. ¶ 2, ECF No. 13-2.) Defendants attach
a copy of the General Terms and Conditions as Exhibit A to
the Certification. (DalCortivo Cert. Ex. A.) The attached
copy of the General Terms and Conditions does not indicate on
its face that it was provided to Plaintiff. Plaintiff
disputes "any implication that Defendants have
demonstrated that their General Terms and Conditions governed
... Plaintiffs service." (PL's Responsive Statement
of Material Facts ¶ 2. ECF No. 15-1.)
Defendants' Motion for Summary Judgment is deficient
under Local Civil Rule 56.1. Defendants assert that Plaintiff
was provided the General Terms and Conditions, but the cited
certification and exhibits in Defendants' Statement of
Material Undisputed Facts fail to support that assertion.
(See DSMUF ¶ 2.) Defendants attempted to
correct this deficiency on reply via a certification and
accompanying exhibits that failed to comply with 28 U.S.C.
§ 1746. (See Bocanegra Cert., ECF No. 16-1.)
After Plaintiff filed a sur-reply pointing out this
deficiency, Defendants then filed a proper certification and
accompanying exhibits in support of its position.
(See Suppl. Bocanegra Cert., ECF No. 22.) The Court
declines to consider certifications and exhibits not cited in
Defendants' Statement of Material Undisputed Facts,
pursuant to Local Civil Rule 56.1. Accordingly,
Defendants" cited certification and exhibits fail to
support its Statement of Material Undisputed Facts.
furthermore, fail to cite any recent or controlling authority
from the U.S. Court of Appeals for the Third Circuit or the
U.S. District Court for the District of New Jersey in support
of their position. (See generally Defs." Moving
Br., ECF No. 13-3; Defs." Reply Br., ECF No. 16.)
Defendants cite only two cases in support in their moving
brief. Defendants cite Pilot Industries v. Southern Bell
Telephone & Telegraph Co., 495 F.Supp. 356 (D.S.C.
1979), for the opinion's collection of cases supporting
Defendants' general proposition that
"[h]istorically. limitation of damages provisions in
telecommunication tariffs have been upheld and
enforced." (Defs.* Moving Br. *4-5.) Defendants also
cite In re CCT Communications, Inc., 464 B.R. 97
(Bankr. S.D.N.Y. 2011), which is relevant to the limitation
of liability issue raised by Defendants' Motion but is
nevertheless not binding authority. Here, Defendants fail to
meet their burden to demonstrate they are "entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a).
IT IS on this 30th day of December 2019,
Defendants' Motion for Partial Summary Judgment (ECF No.
13) is DENIED without prejudice.
Defendants may file a new motion for partial summary judgment
by January 31, 2020.
 Page numbers preceded by an asterisk
refer to the page number on the ECF header because
Defendants' briefs lack page numbers. Defendants'
briefs also fail to include a table of contents or table of
authorities, as required by Local Civil Rule 7.2(b). (See
generally Defs.' Moving Br.; Defs.' Reply
 Defendants' brief must comply with
Local Civil Rule 7.2(b). Defendants must also attach a
certification to their motion stating that their brief
incorporates the most recent controlling authority from the
U.S. Court of Appeals for the Third Circuit and ...