Jean v. Dugan

• Citation: 814 F. Supp. 1401
• Decision Date: 26 February 1993
• Docket Number: Civ. No. H 90-394.
• Parties: Virgil JEAN v. William E. DUGAN.
• Court: U.S. District Court — Northern District of Indiana

814 F. Supp. 1401

Virgil JEAN v. William E. DUGAN.

Civ. No. H 90-394.

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

February 26, 1993.

COPYRIGHT MATERIAL OMITTED

J. Charles Sheerin, Michigan City, IN, for plaintiff.

Louis E. Sigman, Dale D. Pierson, Chicago, IL, for defendant.

ORDER

LOZANO, District Judge.

This matter is before the Court on the Defendant's Motion to Strike Affidavit of Virgil Jean, filed by the Defendant, William E. Dugan ("Dugan") on March 13, 1992, Motion to Strike Second Affidavit of William Dugan, filed by the Plaintiff, Virgil Jean ("Jean"), on March 31, 1992, Motion to Strike Defendant's Motion for Summary Judgment, filed by Jean on April 10, 1992, Defendant's Motion to Reconsider Order Granting Plaintiff Leave to File Supplemental Evidence, filed by Dugan on May 22, 1992, and Defendant's Motion for Summary Judgment filed on January 27, 1992. Being advised in the premises, this Court hereby GRANTS IN PART and DENIES IN PART Dugan's Motion to Strike Affidavit of Virgil Jean, DENIES Jean's Motion to Strike Second Affidavit of William Dugan, DENIES Jean's Motion to Strike Defendant's Motion for Summary Judgment, GRANTS Dugan's Motion to Reconsider Order Granting Leave to File Supplemental Evidence, and GRANTS Dugan's Motion for Summary Judgment.

BACKGROUND

Dugan is a resident of the State of Illinois. In August 1986, Dugan defeated the then incumbent in the election for President-Business Manager of Local 150. The International Union of Operating Engineers, Local 150 (the "Union") is a voluntary unincorporated association of heavy equipment operators with eight district offices throughout Northern Indiana, Northern Illinois and Eastern Iowa.

Jean has been a member of the Union since 1952 and has held various positions in the Union. In August 1986, the members of the Union elected Jean to the position of Financial Secretary on Dugan's slate. In September 1986, Dugan, through the authority vested in him as a President-Business Manager, appointed Jean to the position of Business Representative. In September 1986, the Union appointed Jean as Trustee of the Midwest Operating Engineers Welfare Fund. On December 12, 1988, Dugan terminated Jean's employment as a Business Representative. On or about February 9, 1989, Jean resigned his position as Financial Secretary.

On December 31, 1990, Jean filed a Complaint for damages and injunctive relief against Dugan, individually. In Count I of Jean's Complaint, Jean alleges he was defamed by various statements made in 1988 and 1989. In Count II Jean sets forth a retaliation claim and in Count III Jean alleges interference with contractual relations.

DISCUSSION

Dugan's Motion to Strike Affidavit of Virgil Jean

By his Motion, Dugan requests this Court to strike the Affidavit of Virgil Jean in its entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(e) sets forth the standards for evidentiary affidavits filed in support of or in response to motions for summary judgment and provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." "It is the policy of rule 56(e) to allow the affidavit to contain evidentiary matter, which if the affiant were in court and testifying on the witness stand, would be admissible as part of his testimony." American Security Co. v. Hamilton Glass Co., 254 F.2d 889, 893 (7th Cir.1958). Dugan requests this Court to strike Jean's affidavit on the grounds that the affidavit contains hearsay, conclusory statements, is not made with personal knowledge, and certain statements contradict other prior statements. In response to Dugan's hearsay objections, Jean offers no legal basis to this Court to find that Jean's statements are not hearsay. Jean's counsel's confusion as to what is required in an affidavit opposing a motion for summary judgment is evidenced by the following statement: "Plaintiff is not certain what Defendant means by an out-of-court statement except that counsel is stating that the declarant is not making the statement and is therefore not available for cross-examination. However, that is not the test for the affidavit." As to Dugan's personal knowledge objection, Jean again offers this Court nothing to controvert Dugan's assertion that said statements were not made with personal knowledge.

Dugan also requests this Court to strike portions of the affidavit which contradict a letter that was written prior to this litigation. In this letter, Jean stated,

"I first want you to know that the president asking me to do so has not influenced me in any manner ... After much thought and many requests from the members of this Local, I have decided to resign my position as Financial Secretary this 9th day of February, nineteen hundred eighty-nine in order that I may actively seek the office of President-Business Manager of this local ...

In Jean's Affidavit Jean states that he was forced to resign and in fact did not voluntarily resign as Financial Secretary. As Dugan correctly points out, "a party cannot create a genuine issue of fact by submitting an affidavit containing conclusory allegations which contradict plain admissions in prior deposition or otherwise sworn testimony." Lovejoy Electronics, Inc. v. O'Berto, 873 F.2d 1001, 1005 (7th Cir.1989); Diliberti v. United States, 817 F.2d 1259, 1263 (7th Cir.1987). In this case, Jean's deposition testimony contradicts a prior unsworn admission of Jean. Dugan does not cite to nor has this Court found any case which states that a party may not contradict plain admissions which were otherwise unsworn testimony. Accordingly, as to this aspect, Dugan's Motion is DENIED. However, after reviewing Dugan's lengthy Motion to Strike, the Court hereby STRIKES the following paragraphs of Jean's affidavit: 3, 4, 7, 8, 14, 15, 18, 20, 21, 22, 23, 26, 27, 28, 33, 41, 43, and 50 because such portions contain inadmissible hearsay. Pfeil v. Rogers, 757 F.2d 850, 860-63 (7th Cir.), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986). The Court ALSO STRIKES sections 6, 24, 36, and 45 as said paragraphs contain conclusory statements. See First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir.1985) (conclusory statements and affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact). Paragraphs 5, 10, 15, 24, 30, 33, 43, and 44 are ALSO STRICKEN as they contain statements not made with personal knowledge. See Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989). Moreover, paragraphs 37, 40, and 48 must be stricken as they contain language which contradicts Jean's prior depositions. As to part two of Jean's affidavit, this Court HEREBY STRIKES paragraphs 3, 10, 12, 13, 15, and 16 as not based on personal knowledge, 5, 8, and 9 as conclusory, and 19, 21, 22, 23, 24, and 25 as not being relevant to the issues in this case. See Rule 402 of the Federal Rules of Evidence.

Motion to Strike Second Affidavit of William Dugan

In support of his Motion, Jean argues that paragraphs 4 and 5 of Dugan's Second Affidavit contains assertions which are not based upon personal knowledge. This Court finds Jean's argument without merit and DENIES this Motion.

Motion to Strike Defendant's Motion for Summary Judgment

By his Motion, Jean asserts this Court should strike Dugan's Motion for Summary Judgment because "the motion and supporting materials including the reply and supplemental memoranda are confusing and misleading" and "the affidavits of defendant submitted in support of said motion are either directly contrary to facts known to defendant or prior statements made by defendant under oath." The sum and substance of Jean's complaint is that Dugan has filed its Motion for Summary Judgment in bad faith, claiming that there are no material issues of fact. However, Jean concedes that Dugan has not violated Rule 11 of the Federal Rules of Civil Procedure. Nothing in Jean's brief persuades this Court to strike Dugan's Motion for Summary Judgment.

Jean also points out three instances in which Jean claims Dugan's third affidavit should be stricken. As to Jean's first assertion, this Court can only speculate as to what Jean is arguing after reading the gobbledygook he presented to the Court. This Court finds merit as to Jean's second assertion as at paragraph seven of Dugan's Affidavit, he states, "As the Union's Financial Secretary, Mr. Jean also regularly attended ... monthly executive board meetings customarily held in Countryside, Illinois, and for which he was compensated separately from his salary as a Business Representative and in a labor organization annual form LM2 for the years 1986, 1987, and 1988. On the above mentioned form, Dugan signed under applicable penalties of law that Jean did not receive any compensation as a Business Representative. As such, the above-assertion is hereby STRICKEN from paragraph seven of Dugan's Affidavit. Jean also claims that Dugan offered contradictory testimony when he stated "Mr. Jean and three other Business Representatives assigned to District 7 each had desks in that District Office in Indiana." When he testified under oath in his deposition that the Financial Secretary got one in Countryside Illinois, the Treasurer got one in Countryside ... and Jim Ness, when he is out in the field, his was up in Waukegan." However, this Court does not find these two statements to be inconsistent as it is conceivable that Jean would have a desk in his capacity as Business Representative in Indiana and would also have a desk in his Financial Secretary in Countryside, Illinois. In this respect, Jean's Motion is DENIED.

Motion to Reconsider Order Granting Jean Leave to File Supplemental Evidence

By his Motion, Dugan requests this Court to...