Phipps v. Experian

Background

Experian Information Solutions, LLC moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is a ruling that can resolve a case without a trial when the evidence shows there is no genuine dispute over an important fact. Experian also moved to compel pro se plaintiff Derrick Phipps to appear for a deposition and sought sanctions for his failure to appear.

Notice Requirement

The court explained that, in the Second Circuit, a district court generally cannot grant summary judgment against a person who is representing himself or herself unless that person has been informed of the consequences of failing to respond and of the need to submit evidence disputing the moving party’s facts. Southern District of New York Local Civil Rule 56.2 requires a represented party moving for summary judgment against a pro se party to serve a specified notice, together with the texts of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1.

The court found that Experian had not served Phipps with the required notice and statement. Although Phipps had previously tried to file summary-judgment motions and had submitted papers opposing Experian’s motion, the court concluded that the record did not clearly establish that he understood the nature of summary judgment or his burden to provide evidence and identify disputed facts. His opposition consisted of a two-page memorandum and 49 pages of exhibits, without a supporting declaration or the required response to Experian’s statement of undisputed facts.

The court also noted that Phipps had not filed an opposition to Experian’s motion for sanctions based on his failure to appear at the deposition. The court viewed that omission as further evidence that Phipps might not understand that the sanctions motion was effectively unopposed if his claims survived summary judgment.

Ruling

The court denied Experian’s motions for summary judgment and sanctions without prejudice, with leave to refile in accordance with Local Civil Rule 56.2. The court directed Experian to serve compliant moving papers and certify compliance by October 14, 2022. It set November 14, 2022, as Phipps’s deadline to serve opposition papers and November 29, 2022, as Experian’s reply deadline and the date for filing the motion papers.

The court warned that if Phipps failed to timely serve an opposition after receiving the required notice, it would consider the motions unopposed and proceed accordingly. The clerk was directed to terminate the motions on ECF Nos. 68 and 69 and mail Phipps a copy of the order.