BARTOLO v. WHOLE FOODS MARKET GROUP, INC.REPLY to opposition to motion re MOTION to Strike MOTION MOTION to StayD.D.C.March 29, 20191 ACTIVE 42564260v3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) JEAN-MICHEL BARTOLO, ) ) Plaintiff, ) ) v. ) Case Nos. 17-cv-1453 (APM) ) 18-cv-1681 (APM) WHOLE FOODS MARKET GROUP, INC., ) ) Defendant. ) _________________________________________ ) DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE Plaintiff’s Opposition does not justify his excessively long Opposition to Defendant’s Motion for Summary Judgment, adequately explain why many of the exhibits to his Opposition to Defendant’s Motion for Summary Judgment and his Opposition to Defendant’s Proposed Statements of Undisputed Material Fact were filed late, and does not justify or correct his failure to properly admit or deny the facts set forth in Defendant’s Proposed Statements of Undisputed Material Fact. Accordingly, Defendant’s Motion to Strike should be granted on all counts. Defendant relies on its initial Motion to Strike and supporting authority and evidence. To assist the Court in crystalizing the issues, which the Court is well-equipped to consider, Defendant briefly states as follows: (1) Plaintiff’s Opposition does not explain the need for its bloated, 64-page response (which does not begin its argument until page 31), nor does the Opposition set forth why it was “necessary.” Plaintiff alleges that Defendant’s Motion for Summary Judgment contained “misleading facts and legal citations and amorphous arguments without proper support,” but neither the Opposition to the Motion for Summary Case 1:17-cv-01453-APM Document 55 Filed 03/29/19 Page 1 of 4 2 ACTIVE 42564260v3 Judgment nor the Opposition here set forth any evidence in support of these conclusory allegations. (2) Plaintiff does not explain why his three requests for extension failed to raise the issue of his Opposition’s length or how his surprise request for leave to exceed his page limit by nearly 50% (filed fewer than four hours before the midnight deadline) complied with the spirit and letter of the local rules. (3) Plaintiff does not adequately address why in eleven of his responses to Defendant’s Proposed Statements of Undisputed Material Fact he omits citations to evidence or denies the statements but fails to address why. Further, he fails to explain why he did not even address several of Defendant’s Proposed Statements. Plaintiff’s responses to Defendant’s Proposed Statements do not comport with the Federal Rules of Civil Procedure, local rules, and the Court’s October 30, 2018 directives. (4) Plaintiff fails to correct his misstatement in his second footnote in his Opposition to the Motion for Summary Judgment. As a result, he continues to perpetuate the unfounded accusation of Defendant’s defective production. Defendant has provided Plaintiff with plain evidence to the contrary that disproves his assertion.1 Plaintiff needs to address his misstatements so as to fulfill his duty of candor to the Court. (5) Plaintiff does not fully explain why the post-deadline screen-shots and email attachments (which show no attempts at filing until 11:40 p.m.) satisfy retroactively 1 See Correspondence of March 12, 2019 at 1, attached as Ex. A (“The EVA calculation was produced in native format…and is identified by a slip sheet bearing that same bates label. In fact, this document was produced to you in multiple formats…[i]t was also provided to you in hard- copy during your pretrial conference with Mr. Pusateri in Bartolo II on July 30, 2018. Defendant pre-marked it as Exhibit 43 in that matter.”); see also related production letters and trial exhibit list, attached as Ex. B. Case 1:17-cv-01453-APM Document 55 Filed 03/29/19 Page 2 of 4 3 ACTIVE 42564260v3 Federal Rule 6’s excusable neglect standard. Accordingly, all of his late-filed materials should be struck. (6) Plaintiff has not satisfied his burden to show that Exhibits W, X, and V will be able to be authenticated at trial and overcome Federal Rule of Evidence 802 such that they may be considered at summary judgment.2 See Austin Inv. Fund, LLC v. United States, 2015 WL 7303514, at *8 (D.D.C. Nov. 19, 2015). Plaintiff’s Response in Opposition to Defendant’s Motion to Strike fails to defend the substance of his own pleadings and does not address the points raised in Defendant’s Motion. Accordingly, Defendant’s Motion should be granted on all counts. March 29, 2019 Respectfully Submitted, GREENBERG TRAURIG, LLP By: /s/Gregory J. Casas Gregory J. Casas Bar No. 455329 300 West 6th Street, Suite 2050 Austin, Texas 78701 Email: casasg@gtlaw.com Telephone: 512.320.7200 Facsimile: 512.320.7210 David Sellinger Bar No. 282780 500 Campus Drive, Suite 400 Florham Park, New Jersey 07932 Email: sellingerd@gtlaw.com Telephone: 973.360.7900 Facsimile: 973.301.8410 2 Plaintiff distorts Whole Foods’ argument on this point. Whole Foods made a proper objection to the admissibility of Exhibits V, X, and W. It remains Plaintiff’s burden to show how these exhibits (which include text message exchanges and narratives unattributed to any particular author) will be admissible at trial, regardless of whether attached to an affidavit or declaration. Akers v. Beal Bank, 845 F. Supp. 2d 238, 243 (D.D.C. 2012). Whole Foods withdraws its objections relating to the authenticity of Exhibits V, X, and W for purposes of the summary judgment motion. Case 1:17-cv-01453-APM Document 55 Filed 03/29/19 Page 3 of 4 4 ACTIVE 42564260v3 WHOLE FOODS MARKET SERVICES, INC. John H. Hempfling, II (Admitted Pro Hac Vice) Associate General Counsel, Litigation 828 West Sixth Street, Suite 200 Austin, Texas 78703 Email: john.hempfling@wholefoods.com Telephone: 512.542.0213 Attorneys for Defendant Whole Foods Market Group, Inc. CERTIFICATE OF SERVICE I declare that on this 29th day of March, 2019, I caused the foregoing to be served on all parties of record via the Court’s electronic filing system. By: /s/Gregory J. Casas Gregory J. Casas Case 1:17-cv-01453-APM Document 55 Filed 03/29/19 Page 4 of 4
