Zitzka v. the Vill. of Westmont

• Decision Date: 28 September 2010
• Docket Number: No. 07 C 0949.,07 C 0949.
• Citation: 743 F.Supp.2d 887
• Parties: Dawn M. ZITZKA and James Zitzka individually and on behalf of Jane Doe 1 and Jane Doe 2, their minor daughters, and John Doe, their minor son, Plaintiffs,v.The VILLAGE OF WESTMONT, a municipal corporation; Police Officers James Schlicher, Michael Dale, David Newton, Gregory Compton, Terrence Boyer and John Bright, Defendants.
• Court: U.S. District Court — Northern District of Illinois

743 F.Supp.2d 887

Dawn M. ZITZKA and James Zitzka individually and on behalf of Jane Doe 1 and Jane Doe 2, their minor daughters, and John Doe, their minor son, Plaintiffs,

v.The VILLAGE OF WESTMONT, a municipal corporation; Police Officers James Schlicher, Michael Dale, David Newton, Gregory Compton, Terrence Boyer and John Bright, Defendants.

No. 07 C 0949.

United States District Court, N.D. Illinois, Eastern Division.

Sept. 28, 2010.

Kevin Patrick McJessy, Kimberly K. Thompson, McJessy Ching & Thompson LLC, Chicago, IL, Plaintiffs.Thomas R. Weiler, Langhenry, Gillen, Lundquist & Johnson, LLC, John J. Murphy, Norton Mancini Weiler & Deano, Laura Lee Scarry, Patrick Frasor Moran, Deano & Scarry, LLC, Chicago, IL, James L. Deano, Deano & Scarry, Wheaton, IL, for Defendants.

MEMORANDUM OPINION AND ORDER ¹

SIDNEY I. SCHENKIER, United States Magistrate Judge.

Allegations of an underage drinking party and the rape of a minor in Westmont, Illinois, evolved into this lawsuit after the alleged victim's parents expressed their discontent with the Westmont Police Department (“WPD”) investigation in a variety of ways, and were eventually arrested on various charges. Plaintiffs—Jane Doe 1 (“Miss Zitzka,” the minor who was the alleged victim of a rape), her parents (Mr. and Mrs. Zitzka), and Miss Zitzka's two younger siblings—filed this suit on February 20, 2007, against the Village of Westmont (“Westmont” or “the Village”) and six Westmont police officers in their individual and official capacities. In an earlier opinion, the Court dismissed Counts II–III, V–VI, and VIII of the first amended complaint (“the Complaint”). Zitzka v. Vill. of Westmont, No. 07 C 0949, 2007 WL 3334336 (N.D.Ill. Nov. 6, 2007). In the remaining claims, plaintiffs sue defendants under 42 U.S.C. § 1983 for retaliation and unlawful arrest in violation of the First and Fourth Amendments (Counts I and IV), as well as for intentional infliction of emotional distress and malicious prosecution in violation of state law (Counts VII and IX).

Defendants have filed five individual motions for summary judgment, with one joint memorandum and reply brief in support of the motions (doc. # 123). The individual motions were filed by: (1) the Village (doc. # 122); (2) Westmont Police Detective Michael Dale (“Detective Dale”) (doc. # 121); (3) Westmont Police Officers Terrence Boyer (“Officer Boyer”) and Gregory Compton (“Officer Compton”) (doc. # 119); (4) Westmont Police Officers John Bright (“Sergeant Bright”) and David Newton (“Officer Newton”) (doc. # 120); and (5) Westmont Police Detective James Schlicher (“Detective Schlicher”) (doc. # 117). Defendants also have filed three motions to strike various materials plaintiffs have filed in opposing the summary judgment motions (docs. 142–144).

For the reasons set forth below, the Court: (1) denies the motions to strike (docs. 142–144); (?) grants the Village's motion for summary judgment (doc. # 122); and (3) grants in part and denies in part the remaining motions for summary judgment (docs. 117, 119–21).

I.

As a preliminary matter, we address the three motions to strike filed by defendants.

A.

We consider together defendants' joint motion to strike, in whole or in part, plaintiffs' response to defendants' joint Local Rule (“L.R.”) 56.1(a) statement of facts (doc. # 143), and their joint motion to strike plaintiffs' L.R. 56.1(b)(3)(C) statement of additional facts (doc. # 144). Defendants argue that plaintiffs' responses and additional facts should be stricken because they do not comply with L.R. 56.1 and this Court's Case Management Procedures, contain improper legal argument, and are not supported by proper citations to the record (Defs.' Mot. to Strike Resp. at 2; Defs.' Mot. to Strike Add'l Facts at 2). In addition, defendants contend that plaintiffs' responses to defendants' statement of facts are non-responsive ( Id.)

In this district, L.R. 56.1 provides the framework through which parties lay out the material facts that support or oppose summary judgment. The trial court deems the properly supported material facts set forth in the parties' statements to be admitted unless they are properly controverted by the statement of an opposing party. Raymond v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir.2006); L.R. 56.1(a)(3); L.R. 56.1(b)(3)(c). Although we are entitled to demand strict compliance with the Local Rules, whether to do so is entrusted to trial court's discretion. Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004).

In a recent case in this district, the court considered a motion to strike portions of the defendants' statement of facts and the affidavits they relied on, based on similar reasons alleged by defendants in this case: they were not supported by admissible record evidence, lacked foundation, contradicted prior deposition testimony, or were conclusory. Alvarado v. Corporate Cleaning Serv., Inc., 719 F.Supp.2d 935, 938 n. 2 (N.D.Ill.2010). While the court agreed with the plaintiffs that a number of the defendants' factual statements lacked proper evidentiary support or otherwise violated L.R. 56.1, the court chose to disregard the improper factual assertions rather than strike them and denied the plaintiffs' motion to strike as moot. Id.; see also Malec v. Sanford, 191 F.R.D. 581, 583–85 (N.D.Ill.2000) (where assertions advanced as material fact are not supported by admissible record evidence, the court has discretion to disregard tire alleged facts).

Similarly, in the instant case, many of defendants' criticisms are well-taken. However, like the court in Alvarado, we are able to separate plaintiffs' properly alleged facts from the improperly asserted characterizations of or conclusions drawn from those facts. Furthermore, although the Court will not consider additional facts improperly alleged in plaintiffs' response to defendants' statement of facts, many of these facts are properly asserted elsewhere in plaintiffs' submissions. Therefore, we deny as moot defendants' joint motion to strike plaintiffs' response to defendants' statement of facts (doc. # 143), and defendants' joint motion to strike plaintiffs' statement of additional facts (doc. # 144).

B.

Defendants also have filed a joint motion to strike plaintiffs' exhibits 1 through 7 (doc. # 142): (1) Mrs. Zitzka's declaration; (2) Mr. Zitzka's declaration; (3) Miss Zitzka's declaration; (4) the declaration of the Zitzkas' son, John Doe; (5) the declaration of the Zitzkas' youngest daughter, Jane Doe 2; (6) the declaration of Robert Pekich, Mrs. Zitzka's father; and (7) the declaration of John Quinn, the attorney who represented Mrs. Zitzka in three prosecutions brought against her based on arrests by the WPD. Defendants contend that these declarations violate Federal Rule of Civil Procedure 56(e), which provides that an affidavit “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(e). Defendants argue that various paragraphs from each of the above declarations should be stricken because they contradict or are inconsistent with the affiant's prior deposition testimony, raise improper legal argument, are conclusory or vague, contain inadmissible hearsay, fail to establish a proper foundation, or are not based on the affiant's personal knowledge.

As with defendants' first two motions to strike, we find this motion unnecessary. The Court can separate improper legal argument and vague or conclusory statements on the one hand, from properly asserted statements of fact on the other. In addition, we will not consider inadmissible hearsay statements whose substance would not be admissible at trial, see Wragg v. Vill. of Thornton, 604 F.3d 464, 466 (7th Cir.2010), nor “self-serving statements” that are without factual support in the record. Evans v. City of Chicago, 434 F.3d 916, 933 (7th Cir.2006); see also Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir.1998) (“Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.”).

Likewise, the Court will assess whether statements in the affidavits contradict the affiant's prior deposition testimony or are not based on the affiant's personal knowledge. “As a general rule, the law of this circuit does not permit a party to create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony.” Kalis v. Colgate–Palmolive Co., 231 F.3d 1049, 1055 (7th Cir.2000) (internal quotations omitted). When a declarant contradicts his or her prior deposition testimony, a court must examine the particular circumstances of the change in testimony to determine “whether it is plainly incredible or merely creates a credibility issue for the jury.” Patton v. MFS/Sun Life Fin. Distribs., 480 F.3d 478, 488 (7th Cir.2007). That said, these principles do not require that a court jettison an entire affidavit because some portions of it contradict sworn testimony. Rather than strike the declarations and risk striking some consistent statements, we will review each statement in the affidavits separately and determine on a case by case basis whether the statement contradicts prior testimony; is based on personal knowledge; and is material to the motions. Thus, we deny as moot defendants' motion to strike plaintiffs' exhibits 1 through 7 (doc. # 142).

II.

We now proceed to the well-established legal standards governing summary judgment motions. Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue exists when “the evidence is such that a reasonable jury could return a verdict for the...