Stipulation: I Do Not Think That Word Means What You Think It Means

Also, "The Court is not the parties' paralegal."

From Grayson v. No Labels, Inc., decided yesterday by Judge Paul Byron (M.D. Fla.):

This cause comes before the Court sua sponte. On February 2, 2022, Defendants filed a Notice of Compliance, stating that they submitted their proposed Stipulations of Material Facts for their respective Motions for Summary Judgment to Plaintiff and that Plaintiff never responded to Defendants' communications. Defendants then attached their proposed Stipulations of Material Facts. On the same day, Plaintiff filed a Notice of Compliance and attached "their proposed redline edits to Defendants proposed Stipulations of [] Material Facts," claiming that "Defendants submitted their own versions of their proposed [S]tipulations before giving Plaintiff a reasonable opportunity to include the edits shown on the attached [e]xhibits."

It seems the parties are not aware that a "stipulation" is, by definition, "[a] voluntary agreement between opposing parties concerning some relevant point." The Court is not the parties' paralegal, and it will not wade through redlined versions of Defendants' proposed Stipulations of Material Facts.

Accordingly, all of these filings are hereby STRICKEN as noncompliant with the Court's Case Management and Scheduling Order. The parties are DIRECTED to telephonically meet and confer and submit one Stipulation of Material Facts for each Motion for Summary Judgment on or before Friday, April 22, 2022. In addition, each Stipulation of Material Facts should delineate (1) which allegedly defamatory statements are at issue and (2) when those allegedly defamatory statements were published.

Comments

[loki13]

I totally understand where the Court is coming from.

However ... there have been a few times, in practice, where you have to make a choice between complying with a deadline that the Court is demanding, and continuing to try and communicate with opposing counsel who is obviously not interested in cooperating or complying with any deadlines.

Which is to say, I have twice had to do something similar to what Defendants have done here (submitted a unilateral version of something that needed to be bilateral, with a brief recitation of the attempts to confer and communicate) knowing that we would get an order from the Court similar to this.

....that said, sending redlines to the Court? Wow. I'm impressed, not even angry, at the chutzpah.

[tkamenick]

I mean, if the parties instead submit their own proposed facts, the court has to wade through both of them to figure out what is uncontested and what is disputed anyway, right? Wouldn't a redlined version actually make that easier?

[loki13]

No, because they aren't agreed (stipulated).

Redlined means that the Plaintiff just took the Defendant's version and CHANGED it. It doesn't mean that the Defendant agrees to the changes.

If you practice (no idea) then you've encountered numerous examples of parties using redlines to massively change things to their benefit.

[Purple Martin]

Someone neglected to read the headline.

[LawTalkingGuy]

The docket in that case looks like a mess. I mean I guess I don't know the case as well as the court and the parties, but from first glance I really can't understand why the judge is trying to get the parties to stipulate to certain material facts to anything for the summary judgment motion.

If those issues are really not in dispute that will be evident from the briefs and the record. If they are, well, he's just going to have to do some judging.

[loki13]

It is a little odd, but my general assumption is that something happened before- maybe from case management.

[LawTalkingGuy]

Probably. But doubling down and forcing them to try again at a conference seems like a huge waste of time.

[loki13]

In my experience, when an Article III judge in civil litigation says "Jump," the attorneys say, "How high?"

So .... I would disagree on that. Because I can guarantee you that they are going to meet, confer, and provide a single set of stipulated facts by this deadline.

[Purple Martin]

Not the judge's time.

[David Nieporent]

I've only encountered on one occasion: we were making cross-motions for summary judgment, and the judge wanted us to agree on a joint statement of undisputed material facts. But we couldn't really agree, and eventually the court gave in to my whining and agreed to let us do it the traditional way where each side submits its own.

[David Bremer]

I haven't looked at the docket, but I also understand where the parties are coming from. When I've had things like this come up, it's usually because the court has ordered the parties to submit stipulations of fact by a certain date.

One party sends its proposal a day or two before the due date. The other party doesn't respond until a few hours before the deadline. Then maybe there's another round of edits. Ultimately, at 4:30, one side is waiting for the other. The proactive party, fearful of being sanctioned, submits what that party thinks will be the stipulations. Then the other party finally wakes up and submits redlines.

[nonzenze]

How's a court supposed to deal with that? Impose a schedule of initial filings on the parties?

[NOVA Lawyer]

Exactly right, Loki.

Especially that Plaintiffs had quite some chutzpah. Particularly as they are the plaintiffs...

[David Nieporent]

Which is to say, I have twice had to do something similar to what Defendants have done here (submitted a unilateral version of something that needed to be bilateral, with a brief recitation of the attempts to confer and communicate) knowing that we would get an order from the Court similar to this.

There's a difference between "We're supposed to submit a joint status letter by today but defendants won't cooperate, so here's the document as we prepared it," (reasonable) and "Here are some stipulations that the parties haven't agreed to." (Not.) If the parties haven't agreed, then by definition there simply aren't any stipulations. You can think the other side is a jerk for refusing to stipulate to a particular fact, but you can't force them to stipulate.

I've routinely seen it happen in preparing a JPTO. I've been on both sides of the issue; sometimes I'll take something that's undisputed — perhaps my adversary admitted it in his answer, or in response to requests for admission — and put it in the draft stipulations of fact section, and he'll still say that he won't stipulate to it. Shrug. What are you going to do?

Other times my adversary will propose as a stipulation of law something that I don't think is accurate or applicable, and I'll refuse to stipulate to it, and he'll get mad. (I once had a guy agree to ~ 30 proposed stipulations of mine, and added 10 more of his own. I accepted 7 or 8 of them but wouldn't agree to the last few, and out of spite, he said, "Fine, then I'm not agreeing to any of yours.")

[Michael P]

Perhaps the parties should indicate their inability to agree on facts by stipulating that the plaintiff did file the complaint in this court. It's at least arguably relevant....

[ah....Clem]

But don;t both parties have a first amendment right to express their own stipulations?

/sarcasm

[Jett's Pop]

I blame the court. If there's a rule requiring an opposing party to identify those statements of material fact with which they agree (and citing evidence to refute the ones with which they disagree) by a certain period of time, then plaintiff here apparently failed to do so and the defendants' stipulated facts should be deemed admitted. If there's not such a rule, there should be. See Local Rules of the Southern and Eastern Districts of New York, Rule 56.1.

[loki13]

Two seconds with google shows that the M.D. Fla. (where this Court is located) does not have such a local rule.

You can't blame the Court for not applying local rules that don't exist.

[Larvell Blanks]

Of course, the court’s order that the parties file a single stipulation of material facts kind of contradicts his snippiness. What if they don’t agree on any? Are they violating his order?

[loki13]

?

Agreeing on stipulated facts is done in all forms of litigation. You just ... do it.

If you don't agree on any, then you've never litigated a case before, and you're going to get a lot more than a "snippy" order.