The opinion of the court was delivered by: Guzman, United State Magistrate Judge.
MEMORANDUM OPINION AND ORDER
Pending are the parties cross motions for summary judgment
pursuant to F.R.Civ.P. 56(c). Also pending is defendants' motion
to strike certain of plaintiffs' summary judgment exhibits and a
number of plaintiffs' 12(M) statements. For the reasons set forth
below, defendants' motion to strike is granted in part and denied
in part. Plaintiff's motion for summary judgment is denied and
defendant Skys' motion for summary judgment is granted.
Before ruling on the merits of the parties' motions for summary
judgment, the arguments raised in defendants' motion to strike
must be addressed. In general, defendants' motion to strike
claims that many of the exhibits offered by plaintiffs in support
of their motion for summary judgment are unsupported by affidavit
or testimony of record and/or otherwise fails to meet the
evidentiary standards required on summary judgment. In other
instances, defendants complain that though a document may have
been used during a deposition, the testimony regarding the
document is not sufficient to render it admissible on summary
judgment. Defendants finally claim that many of the inferences
which plaintiffs have set forth in their 12(M) statement either
do not cite admissible evidence or are unfounded because of the
breadth of the inferences drawn in comparison to the actual
evidence of record.
Plaintiffs object to defendants' filing of this motion to
strike arguing that this motion was unnecessary and improper.
Plaintiffs argue that defendants could have easily set forth
their evidentiary objections to plaintiffs' proffered evidence in
their response to plaintiffs' 12(M) statement. We find that
defendants' motion is a proper method for resolving the issues
defendants complain of. FDIC v. Meyer, 781 F.2d 1260, 1268 (7th
Cir. 1986). However, the motion to strike will be granted only
if the complained of materials are essentially unsupported by the
record, it is not the function of a motion to strike to resolve
conflicting evidence in the record.
Defendants' first argument is that plaintiff's Exhibits/Tabs 2,
3, 10, 11, 13, 16, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34 (pages
947), 35, 38, 45, 46, 49, 50 (D and F) are inadmissable because
they are unsupported by affidavit or deposition testimony. These
documents are as follows:
Tab 2 Excerpts from the collective bargaining
agreement with Local 63.
Tab 3 Excerpts for the collective bargaining
agreement with Local 393.
Tab 10 A fringe benefit contribution report filed by
Contractors for work performed in January, 1993.
Tab 11 A time card for employee Vogelsang for week
ending January 8, 1993.
Tab 13 Various dispatch papers kept by the Union
showing dates on which Contractors called the
Local 63 hiring hall for employees.
Tab 16 A table showing the officers and directors of
United Skys from 1993-1997.
Tab 27 A table showing the employees of United
Contractors and United Skys and the sources of
Tab 18 Lists of United Skys' employees for year
Tab 19 Lists of United Skys' employees for year
Tab 20 Lists of United Skys' employees for year
Tab 21 Lists of United Skys' employees for year
Tab 23 Lists of United Contractors employees for year
Tab 24 Lists of United Contractors employees for year
Tab 25 Lists of United Contractors employees for year
Tab 26 Lists of United Contractors employees for year
Tab 28 Reports sent by United Contractors to Local 8
of the Ironworkers for fringe benefit
Tab 29 An invoice from Local 8 of the Ironworkers
Fringe Benefit Funds to United Contractors for
liquidated damages and interest.
Tab 30 Two vehicle titles showing the owners as
United Skys and United Contractors.
Tab 32 A memorandum of action of shareholders and
directors of United Skys and United Skys Board of
Directors meeting minutes, December 1993 through
Tab 33 Two consent actions of directors of United
Contractors, Inc. one date December 1993 and
one dated November 1994.
Tab 34 Pages 9 through 47 are various subcontracts
between United Skys and general contractors for
the installation and manufacture ofskylights.
Tab 35 Purchase orders issued by United Skys to
United Contractors for 1994.
Tab 37 A page of the workers compensation insurance
policy issue to United Skys and United
Tab 38 Copies of checks payable to United Contractors
from United Skys for the period January 1993
through May 1997.
Tab 45 A letter from Jerry Johnson of United Skys to
Jim Morton of Local 63.
Tab 46 Yellow Pages listing for "skylights" in the
far northern suburban area of Chicago.
Tab 49 Various time cards for employee Aaron Kozak.
Tab 50 Four time card on which the name at the top in
United Contractors with the word "Contractors"
being crossed out and the words "Skys"
handwritten above it.
Tab D An October 24, 1995 letter form Charles
McCartney as president of United Skys to Laura
Finnegan on United Contractors' stationary.
Tab F An invoice form United Skys to Laura Finnegan
at the firm of Baum, Sigman, Auerbach, Pierson
& Neuman, Ltd. for the cost to produce United
Contractors' general ledger.
Plaintiffs point out that twenty of the exhibits listed above,
under Tabs 11, 18, 19, 20, 21, 23, 24, 25, 26, 28, 29, 30, 32,
33, 34, 35, 37, 38, 49, and 50 were all produced during the
course of the litigation in response to Plaintiffs' requests for
documents. The case law is this circuit is clear: documents
produced in response to discovery are self-authenticating. South
Central Bank v. Citicorp Credit Services, 863 F. Supp. 635, 645
(N.D.Ill. 1994). Further, there is no error to admit as evidence
documents that Defendants themselves possess and produced in
response to Plaintiff's requests for production of documents.
United States v. Brown, 688 F.2d 1112 (7th Cir. 1982).
In addition to being self-authenticating, the documents
produced by Defendants contain Defendants' own statements and are
admissions, not hearsay. Under Federal Rule of Evidence
801(d)(2), admissions by party opponents are not hearsay. A
statement or document is an admission under the Federal Rules of
Evidence if it is offered against a party and is the party's own
statement in either an individual or a representative capacity or
a statement by a person authorized by the party to make a
statement concerning the subject. Statements under the Federal
Rules of Evidence included both oral and written assertions.
F.R.Evid. 801(a). Therefore, defendants' motion to strike these
documents is denied.
Defendants also attempt to strike Exhibits 2 and 3 because they
were not produced by Plaintiffs during discovery but rather
before discovery commenced. These exhibits contain excerpts from
the parties collective bargaining agreements. The language in
these excerpts have not changed with subsequent collective
bargaining agreements and defendants do not argue that any of the
terms are no longer binding. Because defendants have admitted
they are parties to the collective bargaining agreements and
because they do not dispute that any of these terms are no longer
binding defendants' motion to strike Exhibits 2 and 3 is denied.
Defendants also complain about Exhibits 10 (Union Contribution
Report) and 45 (Letter from Jerry L. Johnson of United Skys to
James Morton of the Ironworkers Local 63). These are both
documents prepared by defendants. Defendants do not deny that
they sent the contribution report and letter to plaintiffs. There
is no allegation that the documents are forgeries or that they
have been tampered with. Indeed, if this were so, defendant's, as
the authors of the documents, could easily controvert the
documents and ask that they be stricken. Instead, defendants
merely state that there is no independent authentication. Because
the defendants could so easily call into question the accuracy or
authenticity of these documents if they wished to do so, we find
little danger to the truth finding process in allowing them to be
used by plaintiffs. Thus, the motion to strike is denied.
The "requisition forms" at Exhibit 13 have been authenticated
and are admissible. These are the "dispatch papers" written by
the union when Contractors and/or Skys called for workers and
were retrieved from the union's files. Defendants' counsel
deposed Mr. Christos, Local 63's business agent, and at pages 16
through 27 of the deposition transcript, defendants' counsel went
through each page that plaintiffs attached under Tab 13. Thus,
these forms have been authenticated and are admissible.
Exhibits 16 and 27 are inadmissible for purposes of this motion
because plaintiffs have failed to lay a proper foundation for its
admission. Table 2, under Exhibit 27, is a summary and comparison
of lists of employees of Contractors, list of employees of Skys
and a summary of employees who were paid expenses and payroll
checks from Contractors as based on Contractors' cash
disbursement journals. Table 1, under Exhibit 16, is a comparison
of the officers and directors of United Skys from 1993 through
1997. This evidence was apparently produced in the defendants'
Annual Reports to the State of Illinois.
Federal Rule of Evidence 1006 provides that summaries are
admissible evidence where they offer the only practicable means
of making voluminous records available to the judge. However,
defendants are correct in their argument that a proper foundation
has not yet been established as to these tables. Therefore, this
Court finds these Exhibits inadmissible under Federal Rule of
Evidence 1006 for purposes of this motion only. Defendants'
objection to the documents contained in Exhibit 46, the Donnelly
Telephone Directory pages is overruled. These are
self-authenticating records under the Federal Rules of Evidence
902(6). Thus, Exhibits 2, 3, 10, 11, 13, 18, 19, 20, 21, 23, 24,
25, 28, 29, 30, 32, 33, 34 (pages 4-7), 35, 37, 38, 45, 46, 49,
50 (D & F) are admissible and defendants' motion to strike
paragraphs 25, 15, 16, 19-26, 28-31, 45, 49, 53, 57, 60, 62, 63,
66-67, 69 (second sentences), 70-71, 74, 76, 82-85, 90, 92 (third
sentence to end), 93 (first two sentences), 96, 99, 101, 108-110,
and the third sentences of 112-115 are denied.
Defendants finally argue that paragraphs 12, 15-16, 33 (second
sentence), 33, 46-47, 50-51, 54-55, 58-59, 61 (second sentence),
64 (last sentence), 65, 68-69 (second that third sentences), 70
(first sentence), 75, 76 (first sentence), 78(last sentence), 80,
86, 88, 91 (first sentence), 95, 101, 107, 112 (first and fourth
sentences), 113 (fourth sentence), 114 (first and fourth
sentences) and 115 (first and fourth sentences) of plaintiffs
12(M) statement should be stricken.
With respect to paragraph 12 defendants' motion to strike is
denied. The date of Contractors and Skys incorporation is clearly
July 12, 1988 and October 9, 1986 respectively but it is
undisputed that Mr. McCartney make the relevant statement under
oath. With respect to paragraph 15 defendants motion to strike is
denied. Although the cited deposition testimony of Jean Dawson
does not completely support this assertion of fact, Exhibit 10 —
the contribution report does. With respect to the second sentence
of paragraph 16 the motion to strike is denied because Exhibit 13
supports this assertion of fact. Paragraph 33 (second sentence)
of plaintiff's 12(M) statement is stricken because it misstates
what Paul Matik testified to during his deposition. Paragraphs 41
and 61 (second sentences) will not be stricken because they are
supported by the deposition testimony of Heinrikson Paragraph 42
is stricken because this statement is not supported by
Heinrikson's deposition testimony. Paragraphs 46, 47, 50, 51, 54,
55, 58, and 59 are all admissible because these facts are
reflected on the face of the defendants' own documents.
Paragraph 64 (last sentence) is stricken because it
mischaracterizes the testimony of McCartney. Paragraph 65 is
admissible because McCartney's testimony supports this assertion
of fact. Paragraphs 68-69 (second and third sentences), and 70
(first sentence), 75, 76 (first sentence),78 (last sentence) and
107 are all stricken because these statements of fact
mischaracterize what McCartney testified to in his deposition.
Paragraphs 80 and 91 (first sentence) are admissible because
they are supported by the record while paragraphs 86 and 88 are
stricken because they call for a conclusion with respect to
disputed facts. Paragraphs 95, 101, 112 (first sentence) are
admitted because they are supported by the record. Paragraphs 112
(fourth sentence), 113 (fourth sentence), 114 (first sentence)
and 115 (first sentence) are admitted pursuant to the stipulation
of the parties with the phrase "for services rendered" added.
Paragraph 115 (fourth sentence) is admitted because this
assertion is supported by the face of the cash disbursement
journal. Therefore, for the reasons listed above defendants
motion to strike is denied in part and granted in part.
The background facts are taken from taken from the parties
12(M) and (N) statements pursuant to Local Rule 12. Plaintiffs
Architectural Iron Workers Local No. 63 Welfare Fund, Iron
Workers' Mid-America Pension Plan, Iron Workers' Tri-State
Welfare Plan, Architectural Iron Workers Local No. 63 Defined
Contribution Fund, Architectural Metal Trainee School Local No.
63, Iron Workers Local 63 Savings Plan, Iron Industry Promotion
Fund, Architectural and Ornamental Iron Workers Local No. 63 AFL
— CIO, initiated this suit in the United States District Court
for the Northern District of Illinois. The plaintiffs allege in
their complaint that defendant, United Skys, Inc. (Skys) is the
alter ego of defendant, United Contractors, Inc. (Contractors), a
wholly owned subsidiary of Skys, and thus responsible for
contributions to the funds.
Contractors is an Illinois corporation and is the signatory to
the collective bargaining agreement between Contractors and the
plaintiffs. Skys is not a signatory to the collective bargaining
agreements. The agreements between Contractors and Locals 63 and
393 provides that the employer shall pay contributions to the
Iron Workers Tri-State Welfare Plan and the Mid-America Pension
Plan for all employees who perform work covered under that
agreement. (Plaintiff's 12(M), ¶ 5). ...