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HOOD v. DRYVIT SYSTEMS

November 8, 2005.

PETER HOOD, Plaintiff,
v.
DRYVIT SYSTEMS, INC., Defendant.



The opinion of the court was delivered by: DAVID COAR, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Peter Hood ("Plaintiff") is suing Defendant Dryvit Systems, Inc. ("Dryvit" or "Defendant") for consumer fraud and misrepresentation. Before this court is Defendant's motion for summary judgment in its favor and motion to strike three exhibits submitted with Plaintiff's brief in opposition to summary judgment. For the following reasons, Defendant's motion to strike is DENIED. Defendant's motion for summary judgment is GRANTED.

I. LEGAL STANDARD

  It is within the discretion of the court to grant or deny a motion to strike the exhibits offered in support of or in opposition to a motion. See Stinnett v. Iron Works Gym/Executive Health SPA, Inc., 301 F.3d 610, 613 (7th Cir. 2002).

  Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir. 2003).

  The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts demonstrating that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. To successfully oppose the motion, the non-movant must designate these facts in affidavits, depositions, answers to interrogatories, or admissions; the non-movant cannot rest on the pleadings alone. Celotex, 477 U.S. at 324. "A scintilla of evidence in support of the non-movant's position is insufficient," Anderson, 477 U.S. at 252, and the non-movant "must do more than simply show that there is some metaphysical doubt as to the material fact." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Weighing evidence, determining credibility, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255. II. FACTS*fn1

  Plaintiff owns a home in Oak Park, Illinois. Defendant is a Rhode Island corporation doing business in Illinois.

  In 1993, Plaintiff contacted Forest Park Stucco to discuss the application of stucco to his home. After much discussion, Forest Park Stucco persuaded Plaintiff to apply the Dryvit Weatherlast Elastomeric finish coat ("Weatherlast coating" or "coating"), designed and manufactured by Defendant. The only Dryvit materials Plaintiff saw prior to his purchase of the coating in 1993 were a color sheet and a product sheet. Plaintiff had not seen or heard any newspaper, radio, or television advertisements for the product and had not spoken in person or via telephone with anyone from Dryvit about the product.

  Plaintiff's Complaint alleges that, years after the application of Weatherlast coating, serious structural damage occurred and rust stains developed on the studs*fn2 and surface of his home. This happened, according to Plaintiff, because the Weatherlast coating allowed water to penetrate the exterior of the house. Thus, the two-count Complaint charges Defendant with violation of the Illinois Consumer Fraud Act, 815 Ill. Comp. Stat. 505/2 (2005), and common law fraud. Specifically, the Complaint alleges that two representations made by Defendant in marketing and promoting the Weatherlast coating defrauded Plaintiff: (1) that the Weatherlast coating was "an efficient and economical protective coating for stucco" and (2) that the Weatherlast coating was "impenetrable by water." (Def.'s Statement of Material Facts ¶ 5; Am. Compl. ¶¶ 5,6.)

  III. DISCUSSION

  A. Defendant's Motion to Strike

  In response to Defendant's motion for summary judgment, Plaintiff filed a brief in opposition that references four exhibits. Defendant has moved to strike three of these exhibits, and all references to them in Plaintiff's Memorandum Brief in Opposition, because of Plaintiff's alleged failure to support these exhibits by affidavits or to otherwise authenticate them. See Powers v. Dole, 782 F.2d 689, 696 (7th Cir. 1986) ("On a summary judgment motion, when a party seeks to offer evidence through exhibits, they must be identified by affidavit or otherwise be admissible."). The three exhibits are: (1) Exhibit 2, an information sheet about "Weatherlastic Smooth" coating posted on Defendant's website; (2) Exhibit 3, a series of correspondence between Defendant and different entities, along with a series of test results with no introduction, explanations, or conclusions; and (3) Exhibit 4, an information sheet about four Weatherlastic finishes (excluding "Weatherlastic Smooth") posted on Defendant's website.

  1. Exhibits 2 and 4

  The Court will not strike Exhibits 2 and 4. These exhibits are supported by an affidavit, albeit filed ten days after the exhibits were filed, from Plaintiff's counsel stating that he "retrieved [the documents] off the Dryvit, Inc. corporate website on August 29, 2005." (McBride Aff. ¶ 2.) Counsel also swears that "[t]he web addresses stamped at the bottom of each exhibit were the addresses I retrieved the exhibits from, respectively." (Id.) The affidavit complies with Federal Rule of Civil Procedure 56(e), which requires that affidavits "shall be made on personal knowledge, shall set forth such ...


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