Howard v. Locke ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANET HOWARD, )
)
Plaintiff, )
)
v. )
) Civil Case No. 09-1601 (RJL)
GARY LOCKE, Secretary, U.S. )
Department of Commerce, et al., )
)
Defendants. ~
MEMORANDUM 477 U.S. 242, 255 (1986). However, a party opposing a motion for summary
judgment "may not rest upon the mere allegations or denials of his pleading, but ... must
set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (quoting
Fed. R. Civ. P. 56(e)).
"It is well understood in this Circuit that when a plaintiff files an opposition to a
motion ... addressing only certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as conceded." Nwachuku v. Jackson,
605 F. Supp. 2d 285, 286 n.l (D.D.C. 2009) (quoting United States v. Real Property
Identified as: Parcel 03179-005R, 287 F. Supp. 2d 45,61 (D.D.C. 2003)). Similarly,
Local Rule 7(h) provides that "[i]n determining a motion for summary judgment, the
court may assume that facts identified by the moving party in its statement of material
facts are admitted, unless such a fact is controverted in the statement of genuine issues
filed in opposition to the motion." LCvR 7(h); see also Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) ("[P]ursuant to the
remedy afforded by Rule [7(h)], the district court is to deem as admitted the moving
party's facts that are uncontroverted by the nonmoving party's Rule [7(h)] statement.").
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In this case, after defendant filed his motion for summary judgment, the Court
specifically instructed Howard, a pro se plaintiff, on her need to respond to the
defendant's statement of undisputed material facts and the arguments set forth in the
defendant's opening brief, or else risk the Court treating defendant's motion as conceded.
See Order, Howardv. Locke, No. 09-1601 (D.D.C. Dec. 23, 2009) (Dkt. 11) (citing Fox v.
Strickland, 837 F.2d 507 (D.C. Cir. 1988), and Neal v. Kelly, 963 F.2d 453 (D.C. Cir.
1992)). Nevertheless, plaintiffs opposition utterly fails to address both the facts set forth
in the defendant's statement of undisputed material facts and the arguments for summary
judgment made in defendant's opening brief. Rather, plaintiffs opposition continues the
same misguided approach she adopted in drafting her complaint, i.e., copying and pasting
allegations and assertions irrelevant to her current claim, which concerns her termination
from the Agency. Other than one unspecific passage, Howard's opposition consists
solely of a rehash of her previous filings and is therefore not a response to defendant's
motion. See Pl.'s Opp'n 6-7 (briefly describing the administrative process and stating a
general complaint of unfair treatment). As such, plaintiff does not contest that she failed
to participate in the administrative process, including repeatedly failing to respond to the
Agency's discovery requests and deposition notices to the point that the administrative
law judge ("ALl") sanctioned Howard. See Def.'s Mot. 7 (citing MSPB Order, Sept. 10,
2008, Def.'s Mot. Ex. 11). Nor does Howard contest that the ALl, in all practical effect,
struck the allegations of discrimination and retaliation because of Howard's failure to
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cooperate in the administrative process. Jd. (citing same). Plaintiff also fails to contest or
otherwise address the legal authority cited by defendant that renders her failure to
cooperate an insurmountable bar to this action. See id. 11-13. As a result, Howard has
effectively conceded the grounds for defendant's motion for summary judgment.
Therefore, in light of the plaintiffs concession and the Court's review of the
motions, the relevant law cited therein, and the record, it is hereby
ORDERED that the defendant's Motion for Summary Judgment [#9] is
GRANTED, and it is further
ORDERED that the above-captioned case be DISMISSED with prejudice.
SO ORDERED.
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