United States District Court, D. Montana, Billings Division
OPINION AND ORDER
P. WATTERS UNITED STATES DISTRICT JUDGE
Adam Chenoweth alleges Defendant Yellowstone County
terminated his employment with the Yellowstone County
Sheriffs Office because of his membership in the National
Guard, in violation of the Uniformed Services Employment and
Reemployment Rights Act (USERRA) and the Montana Military
Service Employment Rights Act (MMSERA). Yellowstone County
filed a motion for summary judgment on both claims and on
punitive and emotional distress damages. For the foregoing
reasons, the Court grants Yellowstone County's motion
with respect to any claim for punitive or emotional distress
damages and denies Yellowstone County's motion with
respect to Chenoweth's USERRA and MMSERA claims.
Summary judgment standard
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A party seeking summary judgment always
bears the initial responsibility of informing the court of
the basis for its motion, and identifying those portions of
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute as to a material fact is genuine if there
is sufficient evidence for a reasonable fact-finder to return
a verdict for the nonmoving party. Anderson, 477
U.S. at 248. If the moving party meets its initial
responsibility, the burden then shifts to the opposing party
to establish that a genuine issue of fact exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).
Statement of facts
Court is unable to provide a succinct statement of facts
because Chenoweth failed to adhere to the local rules
governing responses to motions for summary judgment. A
responding party must file a Statement of Disputed Facts
simultaneously and separately from the response brief. D.
Mont. L.R. 56.1(b). The Statement of Disputed Facts must set
forth verbatim the moving party's Statement of Undisputed
Facts, state whether each fact in the moving party's
Statement is undisputed or disputed, and, if disputed,
provide a pinpoint cite to evidence that disputes the fact.
D. Mont. L.R. 56.1(b)(1)(A-B). A responding party's
failure to file a Statement of Disputed Facts is deemed an
admission that no material facts are in dispute. D. Mont.
rules have the force of law and are binding upon the parties
and the Court. Professional Programs Group v. Department
of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994). Only in
rare cases will the Ninth Circuit reverse a district
court's application of local rules. Ghazali v.
Moran, 46 F.3d 52, 53 (9th Cir. 1995). When a local rule
permits the district court to grant summary judgment due to
noncompliance, the district court has broad discretion to
determine whether noncompliance should be deemed consent to
the motion. Brydges v. Lewis, 18 F.3d 651, 652
(9th Cir. 1994).
the local rule requires the Court to accept Yellowstone
County's Statement of Undisputed Facts as well taken.
Were the Court to do that and apply them to the law,
Yellowstone County would be entitled to summary judgment on
both of Chenoweth's claims. In the interest of justice,
however, the Court will exercise its discretion and instead
accept Chenoweth's brief as a Statement of Disputed
Facts. Counsel for Chenoweth is hereby warned that next time
the Court will strictly enforce the rule.
County argues MMSERA applies only to persons called to state
military duty and Chenoweth has failed to show his training
was state funded. The Court disagrees because the plain
language of the statute prohibits adverse employment actions
against members of the Montana National Guard due to the
member's service, without any state military duty
language must be construed according to its plain meaning.
Small v. Board of Trustees, Glacier County School
District No. 9, 31 P.3d 358, 362 (Mont. 2001). The
Court's role is to "simply ascertain and declare
what is in terms or in substance contained therein, not to
insert what has been omitted or to omit what has been
inserted." The Clark Fork Coalition v. Tubbs,
380 P.3d 771, 777 (Mont. 2016).
County is correct that MMSERA's main purpose is to
protect the employment rights of National Guard members
called to "state military duty." Mont. Code Ann.
§ 10-1-1002. MMSERA provides several protections for
National Guard members called to "state military
duty," such as guaranteeing leaves of absence and
benefits. Mont. Code Ann. §§ 10-1-1006, 1007. These
protections apply exclusively to persons called to
"state military duty," which does not include
federally funded military duty. Mont. Code Ann. §
10-1-1003(7)(a-b). However, crucial to Chenoweth's claim
here, MMSERA also provides a general protection for Montana
National Guard members from adverse employment actions,
without the "state military duty" limitation. Mont.
Code Ann. § 10-1-1005. Put more succinctly, MMSERA
provides certain protections exclusively to National Guard
members away on "state military duty," but provides
a broad protection for National Guard members from adverse
employment actions based on their National Guard membership