United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris, Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
the Court is Defendant Bash's motion for summary judgment
as to Counts VI-IX. ECF No. 57. On May 24, 2019, the Court
entered an order granting the motion in part. ECF No. 60. A
full factual and procedural history can be found in that
order. On May 27, 2019, Defendant filed a motion for
reconsideration, noting that the Court denied his motion
before he filed his reply. The Court granted the motion for
reconsideration, and an extension to file a reply. He has now
filed a reply. ECF No. 66. The Court will deny the motion for
the same reasons explained in the order dated May 24 (ECF No.
60), because Defendant did not meet his Rule 56(c) burden.
reply brief, Defendant raises many objections to the evidence
Plaintiff submitted in support of its response including,
among other things, Exhibit A identified in the Declaration
of Patricia Martindale which Defendant contends consists of
unauthenticated documents and hearsay. In short,
Defendant's objections to the admissibility of
Plaintiff's evidence has no impact on the analysis. The
Court's decision to deny summary judgment as to Counts
VI-IX was not based on the evidence Plaintiff offered in its
response brief. Indeed, in the two-page analysis of Counts
VI-IX, the Court did not reference any evidence offered by
the Plaintiff. Rather, the disposition of Counts VI-IX was
based solely on Defendant's failure to meet his initial
burden under Rule 56(c).
repeatedly underscores the fact that Plaintiff bears the
burden under rule 56 to identify material evidence in support
of its claims. However, Plaintiff's burden to support its
opposition to Defendant's motion for summary judgment is
not triggered unless and until Defendant (as the moving
party) meets its initial burden to “cit[e]
to particular parts of the material record, including
depositions, documents . . ., ” etc. (emphasis
added). See Fed. R. Civ. P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Defendant's obligations under rule 56(c) must have some
teeth; a defendant cannot trigger a plaintiff's burden of
proof by simply uttering the words “summary judgment,
” and citing to rule 56.
also disputes the Court's finding that he failed to meet
his burden under Rule 56(c). He contends that he did indeed
attach admissible evidence in support of his motion and filed
a courtesy copy containing the exhibits. Attaching exhibits
to the motion, however, is not the same thing as
“citing to particular parts of the material
record.” See Fed. R. Civ. P. 56(c) (emphasis
added). It is not the Court's duty to scour the exhibits
to find support for Defendant's factual assertions.
Although Defendant provided some citations in the section
labelled “undisputed facts, ” those citations did
not make their way into the analysis section. It is not the
Court's duty to determine the legal significance of the
facts presented by Defendant, nor is it the Court's duty
to determine which facts from the asserted “undisputed
facts” section of the brief map onto which arguments in
the analysis section of the brief. It is Defendant's
obligation to bridge the gap between the two, and to cite the
relevant attachments. McPherson v. Kelsey, 125 F.3d
989, 995-96 (6th Cir. 1997) (“[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a
party to mention a possible argument in the most skeletal
way, leaving the court to . . . put flesh on its
cannot cure these defects in a reply brief. A reply brief is
not a substitute for a properly supported motion. The initial
motion must properly put the opposing party and the Court on
notice of 1) what facts the moving party is relying on, 2)
the legal significance of those facts, and 3) where those
facts can be found in the evidentiary record. See Seay v.
Tennessee Valley Authority, 339 F.3d 454, 481 (6th Cir.
2003) (explaining that new arguments in a reply brief vitiate
a nonmovant's ability to respond); Wright v.
Holbrook, 794 F.2d 1152, 1157 (6th Cir. 1986)
(“Since defendant was deprived of an opportunity to
address the issue by plaintiff's failure to raise this
issue in his original brief, we will consider the issue
waived.”); United States v. Crozier, 259 F.3d
503, 517 (6th Cir. 2001) (“We generally will not hear
issues raised for the first time in a reply brief.”).
for the reasons explained above and in ECF No. 60, it is
ORDERED that Defendant's motion for
summary judgment (ECF No. 57) is GRANTED in
part and DENIED in part, and that Counts
IV-V of the amended complaint (ECF No. 22) are
 To be fair, Plaintiff did the same
thing in its response brief. Plaintiff's analysis section
was short on specific factual citations, and long on broad
sweeping generalizations. Both parties assumed the Court has
comprehensive knowledge of the “undisputed facts”
in the case. Unfortunately for Defendant, when both parties
hastily file their briefs without appropriate factual
citations, the moving party will ...