Hartley v. Wisconsin Bell, Inc.

• Decision Date: 05 June 1996
• Docket Number: No. 94-C-599.,94-C-599.
• Citation: 930 F. Supp. 349
• Parties: Carole M. HARTLEY, Plaintiff, v. WISCONSIN BELL, INC., Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

930 F. Supp. 349

Carole M. HARTLEY, Plaintiff, v. WISCONSIN BELL, INC., Defendant.

No. 94-C-599.

United States District Court, E.D. Wisconsin.

June 5, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kersten & McKinnon by E. Campion Kersten, Milwaukee, WI, for Plaintiff.

Winston & Strawn by William G. Miossi, Chicago, IL, Foley & Lardner by Bernard J. Bobber, Milwaukee, WI, for Defendant.

DECISION and ORDER

MYRON L. GORDON, District Judge.

On May 5, 1994, the plaintiff, Carole M. Hartley, filed a complaint in the circuit court for Milwaukee County alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., "ADEA" and a state law claim for intentional infliction of emotional distress. By notice dated June 7, 1994, the defendant, Wisconsin Bell, Inc. "WBI", removed the action to federal court noting that this court had original jurisdiction over the action.

Presently before the court is the defendant's motion for summary judgment under Rule 56(c), Federal Rules of Civil Procedure, which seeks dismissal of the plaintiff's action in its entirety. The defendant has also submitted a "Rule 6.07 Motion to Amend Witness List in Defendant's Pretrial Report." The plaintiff has filed two motions: (1) a "Motion to Strike Defendant's Reply Brief on Summary Judgment" and (2) a "Motion to Preclude Previously Undisclosed Witnesses from Testifying at Trial."

As a preliminary matter, the court notes that the plaintiff affirmatively states in her brief that she does not oppose the defendant's motion for summary judgment as it relates to her state law claim for intentional infliction of emotional distress. Accordingly, the defendant's motion will be granted as to that claim.

I. PLAINTIFF'S MOTION TO STRIKE

The plaintiff filed a "Motion to Strike Reply Brief on Summary Judgment" claiming that (1) it introduces a new argument not raised in the defendant's principal brief, (2) it includes affidavits not submitted with its principal brief, (3) it exceeds the 15-page limitation imposed on reply briefs under Local Rule 6.01(c), and (4) it cites to and includes a copy of an unpublished decision of the court of appeals for the seventh circuit.

The motion practice established under the local rules of the eastern district of Wisconsin contemplates that in all motions there will be three submissions: (1) the motion, along with "supporting brief and, when necessary affidavits or other documents," Local Rule 6.01(a); (2) "an answering brief and, when necessary affidavits or other documents," Local Rule 6.01(b); and (3) a reply brief which shall be "limited to matters in reply," Local Rule 6.01(c). Local Rule 6.01(c) specifically limits the movant in responding to the non-movant's answering brief and affidavits or other documents to a reply brief; it does not permit the movant to file additional affidavits or other documents. Boustead v. Barancik, 151 F.R.D. 102, 106-107 (E.D.Wis.1993) (Gordon, J.). In addition to the summary judgment procedures identified in Local Rule 6.05, motions for summary judgment are to comply with Local Rule 6.01. See Local Rule 6.05.

Along with its reply brief, the defendant submitted the following items: (1) supplemental affidavit of Albert Raymond Kehm; (2) affidavit of William G. Miossi; (3) excerpts from the plaintiff's deposition; and (4) excerpts from the deposition of Dominick Vento. None of these materials had been submitted previously by the defendant or the plaintiff.

At no time did the defendant seek leave of this court to file the materials which accompanied its reply brief. As to the deposition testimony of Mr. Vento, the court recognizes that the defendant included that information with its reply brief because the plaintiff had neglected to attach that portion of Mr. Vento's deposition despite referring to it in her response.

The defendant did not seek or receive leave of court to include the supplemental affidavit of Mr. Kehm, the affidavit of Attorney Miossi or the additional deposition testimony of Ms. Hartley and has failed to identify a justification for the late submission of such information. Accordingly, these documents, identified as exhibits B, D and F of the defendant's reply brief, were improperly submitted and will be stricken.

The plaintiff also argues that the defendant's brief should be stricken in its entirety because the brief along with the attached exhibits exceeds the 15-page limit under Local Rule 6.01(c). This argument is without merit because Local Rule 6.01(c) expressly states that "reply briefs shall not exceed 15 pages exclusive of pages containing the statement of facts, the proposed findings of fact as indicated in rule 6.05, exhibits, and affidavits." (Emphasis added.) The defendant's reply brief consists of only 12 pages, and therefore, does not violate the 15-page limitation of Local Rule 6.01(c). Moreover, the defendant's inclusion of an index of uncontested facts which references previous proposed findings as an exhibit to its reply brief is not inconsistent with the summary judgment procedures identified in Local Rule 6.05.

The plaintiff's assertion that the defendant's reply brief should be stricken because it is not limited to matters in reply as required under Local Rule 6.01(c) is equally without merit. The argument in defendant's reply brief concerning Ms. Hartley's low rankings is in direct response to the argument that Ms. Hartley herself raised in her brief in response to the defendant's motion for summary judgment at pp. 6-9 and 19.

Ms. Hartley's contention that the defendant violated Circuit Rule 53(b)(2)(iv) by citing to and including a copy of an unpublished decision of the court of appeals for the seventh circuit — Wittwer v. Maclean Hunter Publishing Co., Appeal No. 95-1699, 1995 WL 767091 — is persuasive. Circuit Rule 53(b)(2)(iv) provides that, with exceptions not relevant here, unpublished orders "shall not be cited or used as precedent ... in any federal court within the circuit in any written document...." Therefore, the unpublished case, attached as exhibit G to the reply brief, will be stricken.

Accordingly, the plaintiff's motion to strike the defendant's reply brief will be granted to the extent that exhibits B, D, F and G attached to the reply brief will be stricken; in all other respects, the plaintiff's motion to strike the defendant's reply brief will be denied.

II. SUMMARY JUDGMENT STANDARD

A motion for summary judgment will be granted when there are no genuine issues of material facts and the movant is entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure. In order to succeed on a motion for summary judgment, the movant must show the following: (1) no genuine issue of material fact exists; and (2) its entitlement to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Only "genuine" issues of "material" fact will defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

As defined by the United States Supreme Court, "material" facts are those facts which, under the governing substantive law, "might affect the outcome of the suit." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A dispute over such facts is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Upon a finding that a genuine issue of material fact exists, the court must deny the motion for summary judgment and let the matter proceed to trial. See Devex Corp. v. Houdaille Industries, Inc., 382 F.2d 17, 21 (7th Cir.1967); Homan Mfg. Co. v. Long, 242 F.2d 645, 656 (7th Cir.1957).

III. UNDISPUTED FACTS

Pursuant to Local Rule 6.05(a), the defendant included with its motion for summary judgment proposed findings of fact which it believed constituted the factual propositions upon which there is no genuine issue of material fact. It also included references to affidavits and other supporting materials to support the proposed facts. Ms. Hartley responded by contesting many of the factual propositions offered by the defendant. Local Rule 6.05(b)(1). However, Ms. Hartley did not present any additional factual propositions as contemplated under Local Rule 6.05(b)(2). In considering a motion for summary judgment, the court may conclude that there is no genuine issue of material fact as to any proposed finding of fact to which no proper response has been set out. Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993), cert. denied, 510 U.S. 1121, 114 S.Ct. 1075, 127 L.Ed.2d 393 (1994); National Acceptance Co. of America v. Regal Products, Inc., 838 F.Supp. 1315, 1317 (E.D.Wis.1993); Local Rule 6.05(c).

To survive the defendant's motion for summary judgment, Ms. Hartley was obliged to counter the defendant's affidavits and other evidence with materials of evidentiary quality. This could have consisted of affidavits or depositions which created an issue of fact as to whether she had made a prima facie case of age discrimination and whether the reasons offered by the company for her termination were genuine, not pre-textual. Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir.1995) (citing Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994)).

Ms. Hartley has attempted to meet this burden by offering her own affidavit which includes statements directly contrary to her deposition testimony. Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken. Id. at 68. Moreover, conclusory statements in the plaintiff's affidavit do not create an issue of fact, Sample v. Aldi Inc., 61 F.3d 544, 549 (7th Cir.1995), nor do self-serving assertions without support in the record, McDonnell v. Cournia, 990 F.2d 963, 969 (...