United States District Court, D. Utah
B. PEAD, UNITED STATES MAGISTRATE JUDGE
November 20, 2017, Plaintiff Unum Group (“Unum”)
filed a Complaint pursuant to the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1001, et
seq., requesting an equitable lien for reimbursement of
long-term disability benefits (“LTD”) that were
paid to Defendant Brian T. Baker (“Mr. Baker”).
(ECF No. 2.) Mr. Baker is proceeding pro se. On April 11,
2018, the parties consented to the jurisdiction of the
Magistrate Judge pursuant to 28 U.S.C. 636(c). (ECF No. 11.)
The matter is before the Court on Unum's Redacted
Motion for Summary Judgment (âMotionâ). (ECF No. 19.)
has concluded. The court has carefully reviewed the moving
papers submitted by the parties. Pursuant DUCivR 7-1(f), oral
argument is unnecessary and the court will determine the
motions on the basis of the written papers.
judgment is appropriate if the moving party demonstrates that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a); see also Grynberg v.
Total, 538 F.3d 1336, 1346 (10th Cir. 2008). When
employing this standard, the court must view the evidence and
all reasonable inferences therefrom in the light most
favorable to the nonmoving party. See City of Harriman v.
Bell, 590 F.3d 1176, 1181 (10th Cir. 2010). “There
is no genuine issue of material fact unless the evidence,
construed in the light most favorable to the nonmoving party,
is such that a reasonable jury could return a verdict for the
non-moving party.” Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004).
movant who does not bear the ultimate burden of persuasion at
trial, need not negate the other party's claim. See
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242,
1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d
1161, 1169 (10th Cir. 2010). Rather, the movant needs to
point to a lack of evidence for an essential element of the
opposing party's claim. Id. After the movant has
met this initial burden, the onus shifts to the non-moving
party to “set forth specific facts showing that there
is a genuine issue for trial.” See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
non-moving party must “set forth specific facts showing
that there is a genuine issue for trial as to those
dispositive matters for which it carries the burden of
proof.” Applied Genetics Int'l, Inc. v. First
Affiliated Sec, Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). “A party asserting that a fact…is
genuinely disputed must support the assertion
by…citing to particular parts of the materials in the
records, including depositions, documents, electronically
stored information, affidavits or declarations,
…admissions, …or other materials.”
December 11, 2018, Unum filed its Motion. (ECF No. 19.) A
memorandum opposing the Motion should have been filed on or
before January 8, 2019. See DUCivR 7-1(b)(3).
However, this deadline passed without Mr. Baker filing any
opposition. This prompted the Court to issue an Order to
Show Cause (“OSC”) requiring Mr. Baker to
explain why the Motion should not be granted considering it,
at that time, was unopposed. (ECF No. 23.) Mr. Baker had
until February 8, 2019 to file his response to the OSC.
Court received Mr. Baker's timely response to the OSC.
(ECF No. 24.) In it, Mr. Baker (1) asserted that he had not
received “anything” from Unum or the Court until
February of 2019, (2) requested the Court instruct him on how
to proceed in resolving the Motion, (3) claimed he had been
taxed on the money as sick pay, and (4) indicated he had
experienced medical complications with his injured leg that
resulted in an additional surgery on February 14, 2019.
(Id.) Consequently, the Court determined that Mr.
Baker's medical complications provided sufficient cause
to excuse his failure to respond and afforded Mr. Baker
additional time to oppose summary judgment. (ECF No. 25.) Mr.
Baker had until March 25, 2019 to file an opposition.
(Id.) Further, the Court instructed Mr. Baker to
review the operative procedural rules that govern summary
judgment oppositions. (Id.)
of heeding the Court's advice about adhering to the
operative rules governing his opposition, on March 20, 2019,
Mr. Baker filed a single page letter (“Letter”).
Accompanying the Letter are approximately 60 pages of
documents that appear to be communications from Unum
regarding the issue and payment statements reflecting funds
Mr. Baker purportedly received. Mr. Baker indicates that the
Letter is a motion for summary judgment and not the
opposition he should have filed. However, pursuant to
Fed.R.Civ.P. 56 and DUCivR 56-1, the Letter neither qualifies
as a standalone summary judgment motion or an opposition to
qualify as a standalone summary judgment motion, Mr. Baker
needed to cite with particularity to the evidence (i.e.
materials in the record including depositions, documents, or
other materials) that support his factual assertion.
See Fed. R. Civ. P. 56(c)(1); DUCivR 56-(b)(3). Even
though Mr. Baker attaches 60-pages of documents to his
Letter, he fails to assert how those documents support any
undisputed fact and fails to cite with particularity to any
evidence. Therefore, Mr. Baker's Letter does not
qualifying as a standalone summary judgment motion.
so, the Court liberally considers the Letter as the requisite
opposition that Mr. Baker was instructed to file. To this
end, a response shall include a concise summary explaining
why summary judgment should be denied, a restatement of each
fact that Mr. Baker contends is genuinely disputed or
immaterial, a citation with particularity to the evidence
upon which Mr. Baker relies upon to refute Unum's
material facts, and an ...