Cox v. City of Maryland Heights
| Decision Date | 13 September 2011 |
| Docket Number | No. 4:09 CV 852 DDN,4:09 CV 852 DDN |
| Parties | GERALD COX, et al., Plaintiffs, v. CITY OF MARYLAND HEIGHTS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This action is before the court on the motions of defendants the City of Maryland Heights, Tom O'Connor, Joe Delia, and Sean Fanning to strike the affidavit of plaintiff James Cox (Doc. 52) and for summary judgment (Doc. 32). The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 11.) Oral arguments were heard on May 25, 2011.
On June 3, 2009, plaintiffs Gerald Cox, James Cox, and Cox, Inc., d/b/a Cox Bail Bonds, commenced this action against the City of Maryland Heights; Tom O'Connor, Chief of Police of the City of Maryland Heights; Joe Delia, Lieutenant of the City of Maryland Heights Police Department; and Sean Fanning, Police Officer of the City of Maryland Heights, in their individual and official capacities, for damages arising out of the arrest of Gerald and James Cox and revocation of Cox, Inc.'s business license. (Doc. 1.) Following the commencement of this action, Gerald Cox passed away. (Doc. 37-14.) Thereafter, all claims brought by him were voluntarily dismissed with prejudice. (Docs. 41, 58.)
Plaintiffs James Cox and Cox Bail Bonds raise 12 counts of claims for relief in their complaint. (Doc. 1.) In Counts I, III, IV, V, and VII, plaintiffs bring claims under 42 U.S.C. § 1983 against defendants, alleging defamation; unreasonable search and seizure; false imprisonment;malicious prosecution; and conspiracy to violate their civil rights. (Id., at ¶¶ 38-44, 51-69, 78-81.)
In Counts II, VI, VIII, IX, X, XI, and XII, plaintiffs allege state law claims of slander; malicious prosecution; civil conspiracy; tortious interference with a business expectancy; tortious interference with contract; replevin; and conversion. (Id. at ¶¶ 45-50, 70-77, 82-86, 87-93, 94-100, 101-08, 109-16.)
Defendants move to strike the affidavit of plaintiff James Cox from consideration of defendants' motion for summary judgment. Defendants argue that the affidavit is not based on personal knowledge, contains inadmissible hearsay, conflicts with James Cox's prior deposition testimony, and contains irrelevant statements. (Docs. 52, 53.) Plaintiffs respond that the affidavit is based on personal knowledge, is consistent with James Cox's deposition testimony, contains information relevant to the foundation for plaintiffs' claims, and contains admissible statements. (Doc. 55.)
An affidavit used to contest a motion for summary judgment must be "made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). The court should disregard those portions of an affidavit that fail to comply with the requirements of Rule 56(c)(4). Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 801 (8th Cir. 2004); Fed. R. Civ. P. 56(e). Nor should the court consider those portions of an affidavit that conflict with the affiant's prior deposition testimony, unless the conflict is a product of prior confusion. City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468, 476 (8th Cir. 2006). The court must exercise "extreme care" when evaluating whether a potential conflict exists and whether the conflict requires exclusion of the conflicting affidavit. Id.
In his affidavit, James Cox speaks to his prior working relationship with Lt. Delia, his employment with Cox, Inc., his dealings with Leah Pinion and Lance Peabody, and the police investigation thereof. He also discusses the criminal charges brought against him, the revocation ofCox, Inc's ability to issue bail bonds, the local media's coverage of his arrest, and the dismissal of his criminal charges. (Doc. 44-1, Cox Aff. at ¶¶ 1-38.) To the extent the affidavit speaks to factual occurrences to which James Cox was personally present, such information complies with Rule 56(c)(4). These statements are not contrary to the Federal Rules of Evidence, and do not materially conflict with James Cox's prior deposition testimony.1
That said, certain portions of James Cox's affidavit run afoul of Rule 54(c)(4)'s requirements and must be stricken. Specifically, James Cox's testimony regarding Lt. Delia's knowledge of James Cox's criticisms against him is a product of speculation rather than personal knowledge. (Doc. 44-1, Cox. Aff. at ¶ 3.) Similarly, those sections of the affidavit speaking to why the City of Maryland Heights Police Department contacted James Cox's ex-wife upon his arrest are speculative and based on personal belief rather than personal knowledge. (Id. at ¶¶ 25, 26.) To the extent James Cox testifies to Morris Davis's criminal history and conditions of probation, such information must be excluded for lack of personal knowledge and relevance. (Id. at ¶¶ 6, 7.) See El Deeb v. Univ. of Minn., 60 F.3d 423, 428 (8th Cir. 1995) (). Those sections of the affidavit interpreting the legal effect of the ruling by the Circuit Court for theCity of St. Louis must also be stricken as improper legal opinions. (Doc. 44-1, James Cox Aff. at ¶ 30.) See Herd v. Am. Sec. Ins. Co., 556 F. Supp. 2d 992, 996 (W.D. Mo. 2008). Those sections of the affidavit speaking to the release of arrest photographs by the City of Maryland Heights and the veracity of Chief O'Connor's statements to the news media are also based on speculation and personal belief rather than personal knowledge. .) With the exception of James Cox's testimony that he has not been notified of any investigation, those sections of the affidavit regarding the status of any ongoing investigations by the United States Attorney's Office and the veracity of Lt. Delia's statements thereof are also a product of personal belief and speculation. (Id. at ¶ 38.)
Therefore, James Cox's affidavit will be considered to the extent it complies with Fed. R. Civ. P. 56(c)(4) and is not otherwise inadmissible, as set forth above.
Defendants argue that they are entitled to summary judgment because no causal link exists between their criminal investigation and the suspension of Cox, Inc.'s license to issue bail bonds, and because Cox, Inc's license to issue bail bonds is not constitutionally protected. Defendants also argue that only Chief O'Connor made statements to the media, and that his statements were either truthful or personal opinions. Defendants further argue that probable cause existed to arrest Gerald and James Cox based on the $5,500.00 sought from Peabody and given by his mother, and that St. Louis County Prosecuting Attorney Jack Duepner evaluated the evidence and independently determined to file criminal charges. Defendants also generally argue they are shielded by qualified immunity, official immunity, and sovereign immunity.2 (Doc. 35.)
Plaintiffs respond that under Missouri law, Cox, Inc. has a property interest in its license to issue bail bonds, and that property interest was revoked under color of state law. Plaintiffs also respond that Chief O'Connor's statements to the news media were false, that no probable cause existed to arrest, and that defendants knowingly instigated an unwarranted criminal prosecution to cause them financial harm. Plaintiffs further respond that they cannot respond to defendants' assertions of qualified immunity, official immunity, and sovereign immunity defenses because defendants have not tailored these defenses to specific claims, facts, and parties. (Doc. 43.)
Defendants reply that the ability to write bail bonds in Missouri is not constitutionally protected, and that they did not cause the revocation of Cox, Inc.'s license. Defendants also reply that comments made by Chief O'Connor were believed to be true and did not damage plaintiffs. Defendants further reply that probable cause existed to arrest James Cox on September 18, 2008 and November 26, 2008, and that there was no conspiracy to arrest plaintiffs or to interfere with their business. (Doc. 54.)
On June 6, 2008, Leah Pinion entered into an agreement with Cox Bail Bonds, in which she agreed to pay $3,000.00 in consideration for Cox Bail Bonds posting a bail bond on her behalf.3 (Doc. 44 at ¶ 13; Doc. 33-5.) Pinion's then-boyfriend, Lance Peabody, co-signed the agreement, paid Cox Bail Bonds $1,500.00, and executed a quitclaim deed on his residence to Cox Bail Bonds on behalf of Pinion. (Doc. 44 at ¶¶ 14, 15; Doc. 33-5.)
In August of 2008, Peabody informed plaintiffs that he no longer wanted to support Pinion's bond, and agreed to cooperate in bringing inPinion. (Doc. 44 at ¶ 16.) Peabody told James Cox the access code to his garage and where to find a key to his home, where Pinion was staying. (Id. at ¶ 17.) On August 11, 2008, James Cox, Kevin Grillion, and Tammy Smith, who were all agents or employees of Cox Bail Bonds, went to Peabody's home to seize Pinion.4 (Id. at ¶ 18.) Pinion was apprehended, but escaped from Cox Bail Bonds agents' custody while being transported to the St. Louis City Justice Center. (Id. at ¶ 22; Doc. 37-21.)
On August 15, 2008, Pinion called Peabody and told him that she had arranged to turn herself in to James Cox the next day, but wanted to spend the night with Peabody at a Motel 6. (Doc. 44 at ¶ 24.) Peabody and Morris Davis, an agent of Cox Bail Bonds, waited for Pinion at the agreed upon Motel 6 in order to apprehend her. (Id. at ¶ 25.) Pinion, however, became suspicious that she was being set-up, and never went to the Motel 6. (Id. at ¶ 26.) Instead, she called Peabody and told him to pick her up in Fairview Heights, Illinois. (I...
To continue reading
Request your trial