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Nottmeyer v. Precision Alliance Group

March 1, 2006

GERALD NOTTMEYER, PLAINTIFF,
v.
PRECISION ALLIANCE GROUP, LLC, PRECISION SOYA OF ILLINOIS, AND PRECISION SOYA OF SOUTHERN ILLINOIS, LLC, DEFENDANTS.



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

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, PLAINTIFF'S MOTION TO STRIKE AND VARIOUS MOTIONS IN LIMINE

I. INTRODUCTION AND FACTUAL BACKGROUND

Plaintiff, Gerald Nottmeyer, began employment with a Defendant (all three Defendants are related parties) in 1998. In April 2003, Plaintiff was discharged. Plaintiff alleges that this discharge was due to his daughter, who is disabled within the meaning of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and who was insured by Defendants by virtue of Plaintiff's employment. Plaintiff timely filed a charge of discrimination, No. 280200315020, with the Equal Employment Opportunity Commission ("EEOC"), which issued a Notice of Right to Sue on September 17, 2004.

On December 8, 2004, Plaintiff filed suit in this Court. He alleges violation of the ADA in that, by being terminated due to his daughter's disability, he has suffered loss of wages and other benefits as well as inconvenience, embarrassment and loss of enjoyment of life. Plaintiff also alleges that, because his daughter lost her insurance coverage when Plaintiff was discharged, Defendants have violated the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA"), which prohibits retaliation against employees who exercise their rights under the Act.

Plaintiff's prayer for relief includes reinstatement in his former position, back pay, restoration of full benefits, payment of back benefits and attorneys' fees and costs. He also prays for an injunction requiring Defendants and/or their employees to undergo training with regard to the nonretaliation provisions of ERISA.

After discovery, Defendants moved on November 18, 2005 for summary judgment (Doc. 30). Plaintiff responded (Doc. 36) and Defendants replied (Doc. 41). In addition to his response, Plaintiff moved to strike portions of the summary judgment record submitted by Defendants (Doc. 40). Defendants replied to that motion (Doc. 42) and Plaintiff replied (Doc. 43).

Also outstanding are four motions in limine, all filed on February 10, 2006. First, Plaintiff moved to exclude any mention of his participation in an Illinois Department of Agriculture investigation of his employer pursuant to a state court case unrelated to the case at bar (Doc. 58). This motion stands unopposed.

Second, Defendants moved to exclude evidence that they offered Plaintiff a severance package in exchange for a release of his claims (Doc. 59). Plaintiff has responded (Doc. 65) and Defendants have replied (Doc. 68).

Third, Defendants moved to exclude any evidence concerning the same investigation by the Illinois Department of Agriculture mentioned by the Plaintiff (Doc. 60). This motion stands unopposed.

Fourth, Defendants moved to exclude most evidence regarding Plaintiff's daughter Danielle's medical condition (Doc. 61). Plaintiff has responded (Doc. 64) and Defendants have replied (Doc. 67).

Each outstanding motion will be dealt with in turn below.

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Defendants' motion for summary judgment (Doc. 30) is supported by a memorandum and several exhibits. The motion itself was the subject of Plaintiff's motion to strike (Doc. 40). To have the appropriate record and only the appropriate record available for the summary judgment motion proper, the Court must first examine the motion to strike.

A. PLAINTIFF'S MOTION TO STRIKE PORTIONS OF THE SUMMARY JUDGMENT RECORD

Plaintiff contends (Doc. 40) that ten items contained in Defendants' summary judgment record are inadmissible, six on hearsay grounds and four on the grounds that the evidence does not arise from the personal knowledge of an affiant. Defendants oppose each contention in their answer (Doc. 42). The Court will treat each item below.

1. Standard for Motions to Strike

Motions to strike are governed by Fed. R. Civ. P. 12(f). That rule states that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Technically, the rule applies to complaints only.See, e.g., Pilgrim v. Trs. of Tufts Coll., 118 F.3d 864, 868 (1st Cir. 1997). They are typically not available with regard to summary judgment motions. See, e.g., Equal Employment Opportunity Comm'n v. Admiral Maint. Serv., L.P., 174 F.R.D. 643, 645-46 (N.D. Ill. 1997); Cobb v. Monarch Fin. Corp., 913 F. Supp. 1164, 1181 (N.D. Ill. 1995). However, a number of courts have noted that no other viable method exists for attacking the relevance and pertinence of such material, and have allowed such motions in this context. See, e.g., Judicial Watch, Inc. v. U.S. Dep't of Commerce, 224 F.R.D. 261, 263 (D.D.C. 2004). Nevertheless, motions to strike are disfavored and are rarely granted. See Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); see also Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991), cert. denied, 504 U.S. 957 (1992). Thus this Court will not actually strike the portions of the summary judgment record that are the subject of the Plaintiff's motion. Instead, the Court will consider each item objected to by Plaintiff and determine whether it is properly part of the summary judgment record.

2. Propriety of Including Items in the Summary Judgment Record

Summary judgment is governed by Fed. R. Civ. P. 56. Rule 56(e) requires, in pertinent part, that

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. ... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits.

The two phrases particularly at issue in the case at bar are "personal knowledge" and ...


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