Trzeciak v. State Farm Fire & Cas. Co.

• Decision Date: 15 August 2011
• Docket Number: No. 2:10 CV 358.,2:10 CV 358.
• Citation: 809 F.Supp.2d 900
• Parties: Joseph TRZECIAK, Sr., Plaintiff, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

809 F.Supp.2d 900

Joseph TRZECIAK, Sr., Plaintiff,

v.STATE FARM FIRE & CASUALTY COMPANY, Defendant.

No. 2:10 CV 358.

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

Aug. 15, 2011.

Joseph Trzeciak, Sr., Terre Haute, IN, pro se.

Jan N. Campbell, Jeffrey R. Oberlies, Leeuw Oberlies & Campbell PC, Indianapolis, IN, for Defendant.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

On August 9, 2010, pro se plaintiff, Joseph Trzeciak, Sr., filed a complaint against defendant State Farm Fire & Casualty Company (“State Farm”). (DE # 1.) State Farm removed the case to federal court on September 14, 2010. (DE # 2.) Plaintiff alleged that he sustained a loss to his property during his apprehension by City of Hammond police on July 26, 2004, during which time the property was covered by an insurance policy with State Farm, and that State Farm refused to cover the loss to his property. (DE # 1.) On November 16, 2010, State Farm moved for summary judgment on plaintiff's complaint. (DE # 16.) Plaintiff filed a response in opposition to the motion for summary judgment (DE # 21), and State Farm filed a reply. (DE # 26.) State Farm also filed a motion to strike plaintiff's factual allegations and documents submitted with his response for failure to comply with the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the Local Rules for the United States District Court for the Northern District of Indiana. (DE # 24.)

Plaintiff filed a motion to amend his complaint and the magistrate judge denied this motion as to the claim against State Farm because it would be time-barred and therefore futile, but granted plaintiff leave to file an amended complaint against a new defendant, his former attorney, George M. Petrich (“Petrich”). (DE # 30 at 7–8.) Plaintiff moved to amend his complaint again and that motion was denied by the magistrate judge for failure to comply with the order on the first motion to amend. Plaintiff moved to amend his complaint for a third time on May 20, 2011 (DE # 34), and State Farm objected because plaintiff has attempted to amend his complaint against it without addressing the issue of timeliness. (DE # 35.) As explained below, the court will deny State Farm's motion to strike, grant State Farm's motion for summary judgment, and grant plaintiff's motion to file a third amended complaint, while dismissing State Farm from the complaint.

Motion to Strike

State Farm asks the court to strike plaintiff's factual allegations and documents submitted in his response to its summary judgment motion because he failed to comply with the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the Local Rules for the United States District Court for the Northern District of Indiana. (DE # 24 at 2.) It argues that plaintiff's response to the summary judgment motion is a “rambling narrative of allegations without supporting admissible evidence.” ( Id.) It points out that the only two pieces of evidence attached to the response are a report of Investigation from the Bureau of Alcohol, Tobacco, and Firearms about the occurrence at plaintiff's home on July 26, 2004, and an invoice to plaintiff from J.G.M. Enterprises, Inc. for the board-up of his home. ( Id.)

In response, plaintiff argues that a motion for summary judgment should only be entertained after the completion of discovery. (DE # 28 at 1.) He contends that State Farm's motion for summary judgment should be evaluated under the standard for a motion to dismiss. ( Id.) He argues that he was not able to comply with the terms of the policy due to his incarceration and that State Farm refused to fulfill its duties under the policy as a “direct and proximate result of [his] incarceration.” ( Id. at 2.) In reply, State Farm argues that plaintiff's response does not address its motion to strike.¹ (DE # 29 at 1–2.) It argues that plaintiff's response is not a motion under Federal Rule of Civil Procedure 56(d), and even if it is construed as one, it fails because plaintiff did not provide the required information. ( Id. at 2.) It argues that plaintiff's submissions are unauthenticated and should not be considered under Rule 56.

As State Farm points out, under Rule 56(d) if a nonmovant feels that he needs additional discovery to respond to a discovery request, he must show “by affidavit or declaration that, for specified reasons, [he] cannot present facts essential to justify [his] opposition.” ² If a nonmovant does not file an affidavit as required by Rule 56(d), a district court can rule on a motion for summary judgment without allowing additional discovery to take place. See e.g., Woods v. City of Chi., 234 F.3d 979, 990 (7th Cir.2000). Requests for additional discovery must be specific and cannot be based only on speculation. Davis v. G.N. Mortgage Corp., 396 F.3d 869, 885 (7th Cir.2005). Moreover, it is particularly appropriate for a court to rule on a motion for summary judgment without allowing discovery first when the nonmovant has not shown how discovery would be likely to unearth any genuine dispute of material fact. Woods, 234 F.3d at 990.

Plaintiff has not complied with Rule 56(d) because he has not provided an affidavit or a declaration giving the specific reasons that he needs discovery to respond to State Farm's motion. In his briefs, he has not pointed out what facts discovery could help him find. Therefore, the court can rule on State Farm's motion for summary judgment without allowing for discovery.

Further, State Farm is correct that plaintiff has the burden to identify “specific facts demonstrating that there is a genuine issue for trial.” Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 677 (7th Cir.2008); Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 563 (7th Cir.2002). To do so, plaintiff must present evidence that is admissible under Federal Rule of Civil Procedure 56(c). According to Rule 56(e) if a party does not properly support an assertion of fact or does not address another party's assertion of fact, the court can consider the fact undisputed for purposes of the summary judgment motion and can grant summary judgment if the motion and supporting materials show that the movant is entitled to it. ³ Plaintiff's response consists largely of assertions that are unsupported by the little evidence he has provided.

Still, it is not necessary for the court to strike plaintiff's response. Even if the court considers all the allegations made in plaintiff's various briefings related to the motion to amend, the motion to strike, and the motion for summary judgment and all of the unauthenticated information attached to these briefings, plaintiff has not pointed to anything that shows that there is a genuine material factual dispute as to the issue of the timeliness of his complaint. He has also not shown that discovery would enable him to find evidence that would create a genuine material factual dispute. State Farm's motion to strike will be denied. The court will consider whether plaintiff has properly supported his factual assertions under Rule 56(c)(1) and it will consider a fact to be undisputed if plaintiff has not addressed the fact or presented evidence to dispute it. When appropriate, the court will also discuss how no material dispute would exist even if the plaintiff conducted discovery consistent with his allegations or if the attachments he submitted were admissible.

Motion for Summary Judgment

I. UNDISPUTED FACTS ⁴

Plaintiff owns a property at 4436 Hohman Avenue, Hammond, Indiana (hereinafter referred to as “the property”). (Joseph Trzeciak, Sr. Second Examination Under Oath (“EUO”) 22, Def.'s Exh. D, DE # 15–2.) The property was covered under an insurance policy issued to plaintiff by State Farm. (Certified Policy, Def.'s Exh. A, DE # 15–1.) Plaintiff's insurance policy with State Farm included the following provision:

6. Suits Against Us. No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one year after the date of loss.

(Certified Policy 14.) It also stated that if there was a loss under the policy, plaintiff had the duty to prepare an inventory of all damaged or stolen property. ( Id. at 13.) The inventory needed to include the quantity, age, replacement cost, and amount of loss for the property, and it needed to be supported by bills, receipts, and other related documents. ( Id.) State Farm canceled the policy on August 18, 2004 because the property was no longer owner-occupied. ( Id. ¶ 6.)

On August 23, 2004, a woman who identified herself as plaintiff's son's girlfriend contacted plaintiff's insurance agent, Al Dempsey (“Dempsey”) and reported that police had broken into the property, damaged it, and taken plaintiff into custody. (Victor Rodriguez Aff. ¶ 4, Def.'s Exh. C, DE # 15–3.) On September 7, 2004, State Farm received two invoices, dated July 27, 2004, and August 13, 2004, from J.G.M. Enterprises, Inc. for emergency board-up work it had performed at the property at the request, order, and authorization of the City of Hammond police department. (Rodriguez Aff. ¶ 7.) Plaintiff sent a letter, dated August 18, 2004, to State Farm indicating that his son, Joseph Trzeciak, Jr. had the authority to handle his affairs with the house. ( Id. ¶ 5.) Joseph Trzeciak, Jr. met with Victor Rodriguez, a State Farm claim representative, at the property prior in May, 2005.⁵ (Joseph Trzeciak, Jr. Aff., DE # 34–2.) Rodriguez specifically instructed Joseph Trzeciak, Jr. not to remove any “items of personalty from the residence.” (DE # 21 at 3; Joseph Trzeciak, Jr. Aff., DE # 34–2.)

On September 1, 2004, State Farm sent plaintiff a letter stating that it was investigating whether the loss to the property was an accidental direct physical loss that would be covered under the policy. (Exh. 1 to Trzeciak EUO, DE # 15–2 at 22.) On October 6, 2004, State Farm sent Joseph Trzeciak, Jr. a letter explaining plaintiff's duties under...