Opinion
Case No. 98-4154-SAC.
November 2000.
MEMORANDUM AND ORDER
This case is before the court on its request that the parties clarify their views as to whether any claims remain in this case, following the court's ruling (Dk. 78) on the government's summary judgment motion.
The court has previously held a telephone conference in an attempt to determine whether the parties considered any claims of non-discrimination under the ECOA to have been stated in the pretrial order, and in an abundance of caution, invited the plaintiff to brief the issue and set dates for the government to respond and for the plaintiff to reply. The court has reviewed the briefs filed by both parties, (Dk. 84-86) and is prepared to rule.
Because the pretrial order has been filed in this case (Dk. 71), the allegations and claims made therein supersede the complaint and are controlling. Fed.R.Civ.P. 16(e). This court recently set forth the governing law regarding the scope of a pretrial order in Koch v. Koch Industries, Inc., 1998 WL 975592, at *5-*6 (D.Kan. 1998):
The pretrial order controls "the subsequent course of the action." Trujillo v. Uniroyal Corp., 608 F.2d 815, 817 (10th Cir. 1979) (quotation omitted). "[T]he pretrial order measures the dimensions of the law suit at trial." Stone v. First Wyoming Bank N.A., Lusk, 625 F.2d 332, 347 (10th Cir. 1980) (citation omitted); see also Hullman v. Board of Trustees of Pratt Community College, 950 F.2d 665, 668 (10th Cir. 1991). It should sharpen and simplify the issues for trial, and "it represents a complete statement of all the contentions of the parties." Trujillo v. Uniroyal Corp., 608 F.2d at 817 (quotation omitted). "`The office [of the pretrial order] as a procedural tool [is] to insure the economical and efficient trial of every case on its merits without chance or surprise.'" Smith v. Ford Motor Co., 626 F.2d 784, 795 (10th Cir. 1980) (quoting Case v. Abrams, 352 F.2d 193, 195 (10th Cir. 1965)), cert. denied, 450 U.S. 918 (1981). Once the triable issues have been settled in the pretrial order, the court may reject issues and contentions not included and reject efforts to modify existing ones unless necessary to prevent manifest injustice. Century Refining Company v. Hall, 316 F.2d 15, 19 (10th Cir. 1963). "[I]ssues not preserved in the pretrial order . . . [are] eliminated from the action." Hullman, 950 F.2d at 668 (quotation omitted). The decision to exclude facts or issues as not found in the pretrial order is committed to the trial court's sound discretion. Smith, 626 F.2d at 795.
Since it is intended to facilitate a trial on the merits, the pretrial order should not be used to defeat the lawsuit on a technicality or be construed "in the spirit of a common law pleading." Trujillo, 608 F.2d at 818. Instead, pretrial orders "should be `liberally construed to cover any of the legal or factual theories that might be embraced by their language.'" Id. (quoting Rodrigues v. Ripley Industries, Inc., 507 F.2d 782, 787 (1st Cir. 1974)). "`A policy of too-easy modification [of pretrial orders] not only encourages carelessness in the preparation and approval of the initial order, but unduly discounts it as the governing pattern of the trial. On the other hand, an unswerving insistence upon every provision, under all circumstances, may work grave injustice in individual cases. . . .'" Perry v. Winspur, 782 F.2d 893, 896 (10th Cir. 1986) (quoting Honorable A. Sherman Christenson, The Pretrial Order, 29 F.R.D. 362, 371 (1961)).
"The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48 (1957) (citation omitted).
In the telephone conference held on this issue on July 6, 2000, counsel for the plaintiff conceded that although her intent was not to limit the ECOA claims to discrimination claims, the sole statutory reference to the ECOA in the pretrial order was to the subsection prohibiting discrimination, 15 U.S.C. § 1691a. The pretrial order contains no reference to subsection e, or to any ECOA regulation regarding notification of loan rejection or regarding records retention.
15 U.S.C. § 1691e(a) states: "Any creditor who fails to comply with any requirement imposed under this subchapter shall be liable to the aggrieved applicant for any actual damages sustained by such applicant acting either in an individual capacity or as a member of a class."
See 12 C.F.R. § 202.9, and 12 C.F.R. § 202.12(b)(4), respectively.
The pretrial order alleges that defendant failed to comply with specific provisions of the Agricultural Credit Act of 1987, "requiring that the plaintiff receive written notice of an adverse decision . . . no later than ten working days after an adverse decision," but makes no specific reference to notification provisions of the ECOA or its regulations. (Dk. 71, p. 5-6, ¶ m).
Plaintiff's record retention claim, as set forth in the pretrial order, alleges as follows:
Defendants failed to maintain files in their possession. Plaintiff contends the local FSA office has "lost" the hearing file and tape of 1990 which would have been used to further support Mr. Lewis's claims of disparate treatment, age discrimination and failure of the agency to comply with statutory and regulatory requirements.
(Dk. 71, p. 6, ¶ n). No citation to any statute or regulation is made in connection with the records retention allegations.
The pretrial order includes the following statement in the Nature of the Case Section: "Additionally, plaintiff alleges numerous allegations which do not constitute appeals of final administrative actions — i.e., age discrimination, constitutional violations and violations of the Equal Credit Opportunity Act." (Dk. 71, p. 2). Listed as the first three issues of fact are:
a. whether defendants unlawfully discriminated against plaintiff due to his age in the manner defendants processed, or failed to process, plaintiff's application for restructuring;
b. the nature, extent and amount of plaintiff's damages, if any, with respect to plaintiff's claims of age discrimination, violation of the Equal Credit Opportunity Act and violation of the Equal Protection and Due Process Clause of the United States Constitution;
c. whether defendants' actions with respect to plaintiff's application for restructuring constituted a violation of the Equal Credit Opportunity Act.
(Dk. 71, p. 10).
The above language flies in the face of the government's contentions that the sole ECOA claim made in the pretrial order relates to age discrimination, and that all timeliness issues contained in the pretrial order necessarily relate solely to the administrative appeals. Subsection c unambiguously states a claim under the ECOA, unrelated to and separate from the age discrimination claim stated in subsection a, and is not merely superfluous. These specific statements of fact serve the fundamental purpose of affording the opposing party fair notice of the claims asserted against him and the grounds on which those claims rest.
Given that pretrial orders should be `liberally construed to cover any of the legal or factual theories that might be embraced by their language,' Trujillo, 608 F.2d at 818, the court finds that the pretrial order put the government on notice that plaintiff's ECOA claims were not exclusively discrimination claims. In construing pretrial orders, the court pays more attention to substance than to form, thus plaintiff's failure to cite to 15 U.S.C. § 1691e or the ECOA regulations is immaterial.
The court has not forgotten defendant's inalienable right to know in advance the nature of the cause of action being asserted against him. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506 (1959); Conley v. Gibson, 355 U.S. 41, 47 (1957). This is a case, however, in which a properly pleaded legal theory has been obscured by the parties' concentration on other theories, cf. Campana v. Eller, 755 F.2d 212, 215 (1st Cir. 1985), rather than a case in which a particular legal theory was never so much as a gleam in the pleader's eye.
The court finds that the pretrial order sufficiently puts the government on notice of plaintiff's claim that defendants' actions, other than discrimination, with respect to plaintiff's application for restructuring constituted a violation of the Equal Credit Opportunity Act.
Instead of addressing the merits of plaintiff's ECOA non-discrimination claims, the government has consistently chosen, in the pretrial order, in its summary judgment briefs, and in the briefs now before the court, to argue that plaintiff's non-discrimination claims regarding the processing of his restructuring application are "merely a reiteration of arguments made in plaintiff's two administrative appeals . . . and plaintiff has not stated a separate cause of action herein." (Dk. 71, p. 9). The court has previously rejected this assertion, (Dk. 78, p. 18-19) and the government is therefore relegated to the consequences of its choice.
The court notes that the government has filed a document entitled "Defendants' Response to Memorandum Setting Forth Plaintiff's Remaining Cause of Action and Memorandum in Support of Defendants' Motion for Summary Judgment." (Dk. 86). To the extent this pleading purports to constitute a Memorandum in Support of Defendants' Motion for Summary Judgment, it is denied for non-compliance with the rules governing summary judgment motions, and with the court's practice of determining when the parties may file summary judgment motions, rather than permitting counsel to do so on their own initiative, sequentially.
Permitting counsel to incorporate other summary judgment briefs by reference, and to file summary judgment motions seriatim on their own initiative would not only make the court's task of shuffling paperwork more complex, but would also permit any number of permutations of the page-limitation rule, all of which would be sure to be exploited by creative counsel more frequently than desired by the court or warranted by the circumstances.
The court additionally notes that plaintiff filed, on October 16, 2000, its Reply to Defendant's Response and its Response to Defendant's Motion for Summary Judgment. (Dk. 87) That pleading is untimely, and therefore has not been considered whatsoever in reaching the conclusions set forth herein.
IT IS THEREFORE ORDERED THAT plaintiff is hereby permitted to proceed on his claim of ECOA violations, not based on age discrimination. Counsel are hereby notified that the court will set dates for a settlement conference in this matter forthwith.
IT IS FURTHER ORDERED THAT defendant's motion for summary judgment (Dk. 87) is denied.