Falls v. TOWN OF DYER, IND., Civ. No. H87-643.

• Decision Date: 10 December 1990
• Docket Number: Civ. No. H87-643.
• Citation: 756 F. Supp. 384
• Parties: Phillip H. FALLS, Individually and d/b/a Fast Lane Foods, Plaintiff, v. TOWN OF DYER, INDIANA; Board of Trustees of the Town of Dyer, Indiana; Jean W. Freeland; Kenneth v. Tanis; Thomas G. Hoffman, Individually and in their capacity as Members of the Board of Trustees; Rosemary K. Delahunty, in her capacity as Zoning Administrator of the Town of Dyer, Indiana; and The Board of Zoning Appeals of the Town of Dyer, Indiana, Defendants.
• Court: U.S. District Court — Northern District of Indiana

756 F. Supp. 384

Phillip H. FALLS, Individually and d/b/a Fast Lane Foods, Plaintiff,
v.
TOWN OF DYER, INDIANA; Board of Trustees of the Town of Dyer, Indiana; Jean W. Freeland; Kenneth v. Tanis; Thomas G. Hoffman, Individually and in their capacity as Members of the Board of Trustees; Rosemary K. Delahunty, in her capacity as Zoning Administrator of the Town of Dyer, Indiana; and The Board of Zoning Appeals of the Town of Dyer, Indiana, Defendants.

Civ. No. H87-643.

United States District Court, N.D. Indiana, Hammond Division.

December 10, 1990.

Fred W. Grady, Portage, Ind., for plaintiff.

Thomas L. Kirsch, Munster, Ind., Michael K. Lulich, Park Ridge, Ill., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

When this court entered its Memorandum and Order of June 24, 1988, it was not aware that there was an issue in this case with reference to a bill of attainder. A research of the record up to that time reveals the accuracy of that statement. Of course, this court is not privy to the contents of the briefs filed with the Court of Appeals or the assertions made at oral arguments there on April 25, 1989. Nonetheless, as a result of Falls v. Town of Dyer, Indiana, 875 F.2d 146 (7th Cir.1989), the only issue remaining to be resolved in this case has to do with bill of attainder. Such is now the law of this case.

Post-appellate proceedings have been held and a hearing and oral argument on the defendants' motions for summary judgment were held in Hammond, Indiana, on July 20, 1990. Supplemental briefs have now been filed under a deadline of December 3, 1990.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; accord Arkwright-Boston Mfrs. Mut. Ins. Co. v. Wausau Paper Mills Co., 818 F.2d 591, 593 (7th Cir.1987). A material question of fact is a question which will be outcome-determinative of an issue in that

756 F. Supp. 385

case. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984)

Recently, the Supreme Court of the United States took the opportunity to address Rule 56. In two cases decided on the same day, the Court expanded the scope of the application of Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.

After Celotex, it is clear that a non-moving party may not rest on its pleadings to avoid summary judgment. 477 U.S. at 325-26, 106 S.Ct. at 2553-54. See also Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C.Cir.1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). The initial burden is on the moving party to demonstrate "with or without supporting affidavits" the absence of a genuine issue of material fact, and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Rule 56). Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and designate "specific facts showing that there is a genuine material issue for trial." Id. Furthermore, in Anderson, the Court held that what facts are material in a specific case shall be determined by the substantive law controlling that case or issue. 477 U.S. at 248, 106 S.Ct. at 2510. In addition, the court went on to interpret Rule 56 as requiring that the courts analyze summary judgment motions utilizing the standard of proof relevant to that case or issue. Id. at 252-55, 106 S.Ct. at 2512-14. For recent academic insight into Celotex and Anderson, see Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183, 194 (1987), where the author states:

The recent Supreme Court cases likely require that summary judgment be more readily granted.... This emerging trend signals a new era for summary judgment, one in which the old presumptions are giving way to a policy of balancing and efficiency, and the mechanism is more appropriate to double as a sufficiency motion — allowing some sort

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