United States District Court, D. Arizona
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 ...