Nelson v. Frank

          ORDER

          HONORABLE SUSAN M, BRNOVICH UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendants' Motion for Summary Judgment.^[1] (Doc. 88, “Mot.”.) Plaintiff, a pro se litigant, responded and Defendants replied. (Doc. 91, “Resp.”; Doc. 92, “Repl.”.) Defendants filed a separate statement of facts (see Doc. 89), but Plaintiff did not. Defendants move for summary judgment on the sole remaining claim in Plaintiff's Amended Complaint (Doc. 37). (Mot. at 1.) Both parties requested oral argument, but the Court elects to resolve the Motion without it. See LRCiv 7.2(f) (“The Court may decide motions without oral argument.”). Because no genuine issue of material fact exists and the undisputed facts entitle Defendants to summary judgment, the Court will grant the Motion.

         I. PROCEDURAL DEFECTS

         As a preliminary matter, the Court is compelled to address the multiple deficiencies in Plaintiff's Response. First, Plaintiff violated Local Rule of Civil Procedure 56.1(b) by not filing a controverting statement of facts. Local Rule 56.1(b) requires a party opposing summary judgment to

file a statement, separate from that party's memorandum of law, setting forth: (1) for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed; and (2) any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party. . . .

         If an opposing party fails to file a controverting statement of facts, the Court may deem the moving party's statement of facts to be true. Szaley v. Pima Cty., 371 Fed.Appx. 734, 735 (9th Cir. 2010); see also Pierson v. City of Phoenix, No. CV-16-02453-PHX-DLR, 2017 WL 4792122, at *1 (D. Ariz. Oct. 24, 2017) (“The court may deem a movant's separate statement of facts to be true if the nonmoving party does not comply with [Local Rule 56.1]”). “In the absence of specific facts, as opposed to allegations, showing the existence of a genuine issue for trial, a properly supported summary judgment motion should be granted.” Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988.) Because Plaintiff omits a controverting statement of facts, the Court considers Defendants' statement of facts (see Doc. 89) as true.

         Second, Plaintiff's Response violates Federal Rule of Civil Procedure 56(c) and Local Rule of Civil Procedure 56.1(e) by not citing to specific evidence in the record. “Memoranda of law filed . . . in opposition to a motion for summary judgment . . . must include citations to the specific paragraph in the statement of facts that supports assertions made in the memoranda regarding any material fact on which the party relies . . . .” LRCiv 56.1(e). Plaintiff's Response contains snippets of his deposition with editorial comments attempting to modify the meaning of his responses, unsupported by evidence, without citations to the record. (See, e.g., Repl. at 14-16.) This is insufficient under Local Rule of Civil Procedure 56.1(e).

         Third, Plaintiff's Response violates Local Rule of Civil Procedure 7.2(e)(1) by exceeding seventeen (17) pages. Plaintiff's Response is twenty-three (23) pages excluding the certificate of service. Even despite these notable deficiencies, however, the Court can still appropriately consider whether Defendants are entitled to summary judgment on Plaintiff's remaining AEPA claim.

         II. BACKGROUND

         This case arises out of an alleged whistleblower protection violation under the Arizona Employment Protection Act (“AEPA”) when Defendant Newmark Knight Frank (“Company”) fired Plaintiff on September 14, 2016 due to “position elimination.” (Doc. 89-1 at 59-62.) About a year earlier in September 2015, the Company hired him to lead a new business group, the Tax Appeal Group (“TAG”), in Phoenix, Arizona. (Id. at 2-3 ¶ 3, 15.) While employed there, Plaintiff reported to Mr. Buddemeyer. (Id. at 2-3 ¶¶ 2-3.)

         Plaintiff's sole remaining claim under the AEPA almost entirely concerns a series of internal emails containing fake estimates and whether Plaintiff reasonably believed he, the Company, and/or its employees violated Arizona law. Specifically, Plaintiff asserts that Buddemeyer ordered him to send him an email with a revenue forecast or “pipeline” or he would lose his job.^[2] (Id. at 34-36.) He sent Buddemeyer an email on April 11, 2016 titled: “Wade pipeline - current estimated potential fees by state/project” (“pipeline email”) concerning about $1.38 million dollars of possible Company revenue. (Id. at 52) (emphasis added). Two days later, Buddemeyer responded by asking Plaintiff: “how much of the fee should/could be earned in calendar year 2016?” (Id. at 51.) Plaintiff replied a few hours later: “[t]he work is done and fees charged in the current 2016 year but the benefits in the form of refunds with interest cover up to four back years.” (Id.) The next morning, Buddemeyer again inquired whether the pipeline email's fees were “earned 100%.” (Id.) Plaintiff did not immediately respond to this email. (See id. at 50.)

         Concerned about the accuracy of the estimates after inquiring twice whether any fees were actually earned, (id. at 3 ¶ 8), Buddemeyer forwarded his email conversation with Plaintiff to Mr. Lodge, (id. at 50, 54-55 ¶ 3.) Buddemeyer also called Lodge that day because he doubted the accuracy of the estimates. (Id. at 3 ¶ 9, 55 ¶ 4.) Within an hour after receiving Buddemeyer's email, Lodge emailed Plaintiff inquiring whether any fees could be recorded and requested documentation such as letters of engagement, contracts, and invoice copies in order to record them. (Id. at 49, 55 ¶¶ 5-6.) This documentation, Lodge stated under oath, is necessary to publicly report any fees. (See Id. at 55-57 ¶¶ 5, 11-12.) Lodge also asked Plaintiff to “let [him] know how much of the [pipeline email fees] have been completed and maybe even invoiced.” (Id. at 49.) Two hours after receiving Lodge's email, Plaintiff emailed Buddemeyer: “[t]hose are estimated fees.” (Id. at 50.) Four hours after that, Plaintiff also emailed Lodge: “[n]one of it has been completed. It is all in the identification, discussion, pre-proposal phase.” (Id. at 49, 56 ¶ 7.) At deposition, Plaintiff admitted the pipeline email estimates were “completely made up.” (Id. at 37.)

         Buddemeyer and Lodge both claim under oath that they did not tell Plaintiff the Company would use his pipeline email estimates for financial reporting purposes. (Id. at 4 ¶¶ 13-14, 56-57 ¶¶ 10-11.) Buddemeyer further claims he does not know whether the estimates were “used in any publicly reported data by Defendants or any affiliated Defendants' companies, ” (id. at 4 ¶¶ 13-14), while Lodge further claims he “could not use Plaintiff's [pipeline] email in connection with any internal or public report, ” (id. at 56-57 ¶¶ 10-11.) Lodge also states that “[n]othing in [Plaintiff's pipeline email] was used in any publicly reported data by Defendants or any of Defendants affiliated companies.” (Id. at 57 ¶ 12.) While employed by the Company, Plaintiff knew that TAG “did not have the mechanisms in place” to charge or collect fees. (Id. at 30, 32.) Plaintiff also stated under oath that he understood Lodge's response to mean that the Company could not record any fees without further documentation. (Id. at 39-40.)

         Nevertheless, Plaintiff claims the pipeline email estimates were used because Lodge complimented him on how impressive they were.^[3] (Id. at 38, 44.) Plaintiff acknowledges he lacks “independent knowledge that [the pipeline email] was used outside the company, ” but still believes it was publicly reported because someone told him that. (Id. at 43.) By admitting the fraudulent nature of the pipeline email estimates at deposition, Plaintiff claims he is “essentially admitting to securities fraud.” (Id. at 37.) After sending the pipeline email, Plaintiff researched whistleblower protections, but “didn't look at [the situation] from an Arizona standpoint” because he “thought it was a federal violation.” (Id. at 46) (“I thought it was an SEC violation.”). Plaintiff also admits to learning about the AEPA from the attorney who drafted his initial complaint, which was filed a year after the Company fired him. (Id.)

         Nearly five months after Plaintiff sent the pipeline email, Defendants terminated him due to “position elimination.” (Id. at 59-62.) As a result, Plaintiff now claims he is a “federal whistleblower that is suing his previous employer.” (Id. at 47.) Based primarily on Plaintiff's admission that he thought the ...