Nichols v. Schilling
| Decision Date | 29 April 2011 |
| Docket Number | Case No. 10-CV-64 |
| Parties | LAURIANNE NICHOLS, Plaintiff, v. EDWARD SCHILLING and FOND DU LAC COUNTY, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
On January 25, 2010, the plaintiff, Laurianne Nichols ("Nichols"), filed a complaint against the defendants, Edward Schilling ("Schilling") and Fond du Lac County ("County"), alleging that the defendants retaliated against Ms. Nichols for her exercise of her right of free speech in violation of 42 U.S.C. § 1983. (Docket #1). After discovery occurred, on November 19, 2010, the defendants filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56, contending that the plaintiff lacked any evidence to prove several elements of the Section 1983 claim. (Docket #23). The court has received the parties' briefs and related material on the matter and, unfortunately, the parties' efforts have been quite unsatisfactory for several reasons this court will elucidate in this opinion. Nonetheless, summary judgment is "not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005). As such, the "show must go on," and the court proceedsto resolve the pending motion with the benefit of the materials the parties have provided.
ADMISSIBLE EVIDENCE FOR SUMMARY JUDGMENT
Before delving into the factual background of this matter, the court pauses to address what evidence can be used by the court to determine what the undisputed facts are in this case. Several items of evidence provided by the plaintiff to argue for denial of the summary judgment motion were particularly troublesome. Specifically, the plaintiff repeatedly relies on the deposition testimony of Ms. Linda Selk-Yerges ("Selk-Yerges") taken in Wisconsin Department of Workforce Development's Equal Rights Division Case No. CR200600471, Laurianne Nichols v. ASTOP, Inc., as evidence that shows a genuine dispute as to material facts exists in this case. (PPFF ¶¶8-10, 14-17, 24-25, 27, 30, 34). Much of the deposition testimony contains statements that one defendant, Mr. Schilling, allegedly made to Ms. Selk-Yerges. See, e.g., Selk-Yerges Dep. at 44 (). The initial question the court must resolve is whether Ms. Selk-Yerges' deposition testimony can be used to defeat the summary judgment motion.
When a defendant moves for summary judgment on the ground that the plaintiff "lacks evidence of an essential element of his [or her] claim, the plaintiff is required by Fed. R. Civ. P. 56, if he [or she] wants to ward off the grant of the motion, to present evidence of evidentiary quality." Winskunas v. Birnbaum, 23 F.3d1264, 1267 (7th Cir. 1994). It is the plaintiff's burden, as the proponent of Ms. Selk-Yerges' testimony, to establish that the "material is admissible as presented or to explain the admissible form that is anticipated." Fed. R. Civ. 56 2010 advisory committee's notes; see also Fed. R. Civ. P. 56(c)(4) (). Fed. R. Civ. P. 32 places a notable condition on when a deposition from another action can be used in the course of civil litigation, such as when such a deposition is utilized to defeat a summary judgment motion. See Northwestern Nat'l Ins. Co. v. Baltes, 15 F.3d 660, 662 (7th Cir. 1994). Fed. R. Civ. P. 32(a)(8) permits the use of a "deposition taken in an earlier action" in a "later action" involving "the same subject matter between the same parties, or their representatives or successors in interests." Moreover, Fed. R. Civ. P. 32(a)(8) further permits a deposition previously taken to be used as allowed by the Federal Rules of Evidence, which, in turn, similarly allows deposition testimony from another proceeding to be used only if "the party against whom the testimony is now offered... or a predecessor in interest... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Fed. R. Evid. 804(b)(1). The sum of the various rules governing the use of deposition testimony is that deposition testimony taken in a different case involving different parties is inadmissible and cannot be considered on a summary judgment motion. See Northwestern Nat'l Ins. Co., 15 F.3d at 662; see also Hughes v. City of Chicago, 673F. Supp. 2d 641, 651 (N.D. Ill. 2009) () (internal citations omitted).
In this case, the deposition being used to counter the motion for summary judgment was taken in Ms. Nichols' litigation against her former employer, ASTOP, Incorporated ("ASTOP"). As far as the court can discern, the litigation occurred through an administrative arm of the Wisconsin Department of Justice called the Equal Rights Division. Neither Mr. Schilling or the County were involved in that litigation. As the burden of proving that the deposition testimony is admissible or would take some other form at trial falls on the proponent of the testimony, see Hughes, 673 F. Supp 2d. at 651, and, because Ms. Nichols has not shown that the defendants in the case at bar were parties to that action, the court is obliged to strike the testimony of Ms. Selk-Yerges given in another matter and will not consider it in resolving the motion for summary judgment.1
The court also notes that there are two other affidavits provided by the plaintiff in opposition to the defendants' motion that the defendants argue the court should not entertain in reviewing the motion for summary judgment. Specifically, the defendants contend that the affidavits of Ms. Janet Brenner ("Brenner") (Docket #35)and Ms. Sara Laskowski ("Laskowski") (Docket #36) should be struck because they contain inadmissible hearsay. (Def.'s' Reply Br. at 3). It is well-established that "a party may not rely upon inadmissible hearsay to oppose a motion for summary judgment." Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801 (c). The bulk of Ms. Brenner's affidavit attests to statements made by or to Ms. Selk-Yerges that were than transmitted to others, eventually reaching the affiant.2 (Brenner Aff. ¶¶ 6, 8-12). The same can be said of Ms. Laskowski's affidavit. (Laskowski Aff. ¶¶ 9. 10-14). The statements are submitted to prove the truth of the matter asserted3 and are "classic hearsay" where no exception under Fed. R. Evid. 803 or 804 is applicable. Gunville, 583 F.3d at 985. Moreover, of the remaining statements within Ms. Brenner's and Ms. Laskowski's respective affidavits that do not contain blatant hearsay, many of the statements are of the affiant's "beliefs" that the defendants unlawfully retaliated against Ms. Nichols (Brenner Aff. ¶¶ 14-19; Laskowski Aff. ¶¶ 16-21), statements that do not appear to be based on anypersonal knowledge of the affiants in violation of Fed. R. Civ. P. 56(c)(4). See Drake v. 3M, 134 F.3d 878, 887 (7th Cir. 1998) (). As such, the court will disregard the portions of the affidavits of Ms. Brenner and Ms. Laskowski that contain either hearsay statements or are not based upon personal knowledge in determining what the undisputed facts are in this case.
There are two remaining pieces of evidence the court must review with regard to their admissibility to challenge the defendants' motion. First, the court finds that statements that Ms. Selk-Yerges allegedly said as noted in the deposition testimony of Ms. Nichols likewise cannot be used to defeat summary judgment, as such evidence is also hearsay testimony. Gunville, 583 F.3d at 985 (). Finally, the court finds that two newspaper articles offered by the plaintiff to defeat summary judgment are also inadmissible, as the articles, out-of-court statements, are offered primarily to prove the truth of a series of statements attributed to defendant Schilling in those articles.4 See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) (). With these evidentiary rulings in mind, 5 the court proceeds to discuss the factual background of the litigation.6
FACTUAL BACKGROUND7
As hinted at above, this case centers around a private, Wisconsin non-stock corporation named ASTOP Incorporated ("ASTOP") based in Fond du Lac, Wisconsin. (PPFF ¶ 1). The name ASTOP derives from the phrase "Assist Survivors Treatment Outreach Prevention." See ASTOP Home, 2008, http: //www.astop.org/ (last visited April 27, 2011). ASTOP's self-espoused purpose is to help "rebuild the worlds... of those people whose lives are shattered by the ugliness of sexualassault." Id. To accomplish this lofty purpose, ASTOP provides "various services," including providing victims of sexual assault with "emotional support," counseling, and a "crisis telephone center which takes phone calls from people in distress." (DPFF ¶¶ 16-17). The private corporation, through its representatives, also gives "public presentations on ways in which to avoid assaults, how to recognize symptoms of assault, [and] how to report assaults." Id. ¶ 17. ASTOP has a board of directors, whose president is Ms. Carolyn...
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