United States District Court, Northern District of Indiana, Hammond Division
OPINION AND ORDER
PAUL R. CHERRY, MAGISTRATE JUDGE
This matter is before the Court on Defendant’s Motion for Summary Judgment [DE 40], filed on March 7, 2014, and Defendant’s Motion to Strike Portions of Kennedy’s Affidavit and Response [DE 47], filed on May 8, 2014. The Motion for Summary Judgment became fully briefed on May 8, 2014. Plaintiff did not file a response to the Motion to Strike, and the time to do so passed on May 26, 2014. Plaintiff’s response to the Motion for Summary Judgment also asks that the Court grant Summary Judgment in his favor.
I. Procedural Background
Plaintiff originally filed his two-count Complaint in Lake County, Indiana, Circuit Court on February 10, 2012. The Complaint alleges that Defendant Schneider Electric, Inc., who is and was Plaintiff’s employer, defamed him (Count I) and interfered with an advantageous relationship (Count II) when one of its employees contacted the community college where Plaintiff taught part time. Plaintiff alleges that the employee stated that Plaintiff had been misusing Defendant’s proprietary information and that this statement persuaded the community college to revoke his approval to teach.
This matter was removed to the United States District Court for the Northern District of Indiana on the basis of diversity of citizenship on March 20, 2012. On March 28, 2012, Defendants filed a Motion to Dismiss. Judge Jon DeGuilio referred that motion to the undersigned Magistrate Judge for a Report and Recommendation on June 27, 2012. On November 16, 2012, the undersigned Magistrate Judge recommended that Judge DeGuilio deny that motion. On December 11, 2012, Judge DeGuilio issued an Opinion and Order adopting that recommendation in its entirety.
On May 8, 2013, the undersigned Magistrate Judge was advised that all non-Doe parties had filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. The Doe Defendants have been severed from this case, and this Court thus has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
Before proceeding to the merits of these motions, the Court pauses to note the poor advocacy by Plaintiff’s attorney. Plaintiff’s brief, a mere eight pages long, does not cite a single case. The writing is ungrammatical, and the brief does not follow the formatting requirements listed in Northern District of Indiana Local Rule 5-4. Moreover, Plaintiff’s affidavit, which is attached to Plaintiff’s response brief, is undated, and Plaintiff has not filed a response to Defendant’s Motion to Strike the affidavit.
II. Motion to Strike
In support of his response to the Motion for Summary Judgment, Plaintiff submits his signed but undated Affidavit. Defendant asks the Court to strike it because it is undated and because it contains many inappropriate statements. Federal law sets forth the requirements for an unsworn declaration made under penalty of perjury—these include that the statement be made in a writing, that the person states “as true under penalty of perjury, ” and that the statement be dated. 28 U.S.C. § 1746. The absence of a date is not, in and of itself, a reason to discount an affidavit or a declaration, but courts typically excuse such an omission only when extrinsic evidence demonstrates the approximate date of signing. Brown v. White’s Ferry, Inc., 280 F.R.D. 238, 244 (D. Md. 2012); see also Peters v. Lincoln Elec. Co., 285 F.3d 456, 475–76 (6th Cir. 2002); Davis v. Wells Fargo Bank, 685 F.Supp.2d 838, 842 (N. D. Ill.2010).
Plaintiff has offered no response to Defendant’s argument, and the Court is not aware of any extrinsic evidence demonstrating the approximate date Plaintiff signed the affidavit. Accordingly, the Court strikes Plaintiff’s affidavit in its entirety. See Mitchel v. Buncich, 2:11-CV-91-PRC, 2013 WL 275592, at *4 (N.D. Ind. Jan. 24, 2013) motion for relief from judgment denied, 2:11-CV-91-PRC, 2013 WL 1385522 (N.D. Ind. Apr. 4, 2013).
Plaintiff’s Affidavit also includes a handful of attachments. These are marked Exhibit 1(a), Exhibit 1(b), and so on. “Exhibits that have been properly made a part of an affidavit . . . may be considered” in ruling on a motion for summary judgment. Vukadinovich v. Bd. of Sch. Trustees of Michigan City Area Sch., 776 F.Supp. 1325, 1326 (N.D. Ind. 1991) aff’d, 978 F.2d 403 (7th Cir. 1992) (quoting 10A Charles Alan Wright et al., Federal Practice & Procedure § 2722) (internal quotation marks omitted). Conversely, courts generally do not consider “unsworn or unauthenticated documents in determining a summary judgment motion . . . but may do so in the absence of objection.” Id. (citing Macklin v. Butler, 553 F.2d 525, 528 n.1 (7th Cir. 1977); Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th Cir. 1982)); Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (“To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e)” (quoting 10A Charles Alan Wright et al., Federal Practice & Procedure § 2722) (internal quotation marks omitted)).
Defendant objects to both the affidavit and to its attachments. Since the affidavit is not properly before the Court, neither are the attachments. The Court accordingly strikes all documents attached to Plaintiff’s affidavit. In addition to this, the Court disregards Plaintiff’s response brief insofar as it relies on the affidavit and the documents attached to it.
Defendant also asks the Court to strike the portions of Plaintiff’s response brief that are not supported by proper designations or admissible evidence. The Court is able on its own to sift through which contentions in Plaintiff’s brief are supported and which are improper. And, since, as will be seen below, the Court’s ruling on the Motion for Summary Judgment would be the same even if this portion of Defendant’s motion had never been filed, the Court denies it as moot.
III. Defendant’s Motion for Summary Judgment
A. Summary Judgment Standard
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). “[S]ummary judgment is appropriate—in fact, is mandated—where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotations omitted).
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if the moving party has “produced sufficient evidence to support a conclusion that there are no genuine issues for trial, ” then the burden shifts to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill Assoc., 914 F.2d 107, 110–11 (7th Cir. 1990) (citations omitted); see also Hong v. Children’s Mem’l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it . . . .” Fed.R.Civ.P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts, ” but must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting Fed.R.Civ.P. 56(e)).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249–50.
B. Material Facts
1. Plaintiff’s Background