The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion for summary judgment filed by defendant The Black & Decker Corporation, formerly known as The Black & Decker Manufacturing Company (Doc. 23). Plaintiff Richard M. Stallings, administrator of the estate of Richard R. Stallings ("Stallings"), has responded to the motion (Doc. 55), and The Black & Decker Corporation has replied to that response (Doc. 58). The Court also considers The Black & Decker Corporation's motion to strike the plaintiff's exhibits submitted in opposition to its motion for summary judgment (Doc. 57), to which the plaintiff has responded (Doc. 61), and the plaintiff's motion to strike portions of The Black & Decker Corporation's reply brief (Doc. 60), to which The Black & Decker Corporation has responded (Doc. 63).
I. Summary Judgment Standard
Summary judgment is appropriate where "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396. Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
A. The Black & Decker Corporation's Motion to Strike (Doc. 57)
The Black & Decker Corporation asks the Court to strike certain exhibits submitted by the plaintiff in opposition to its motion for summary judgment on the ground that they are not verified by affidavits and are therefore inadmissible. In ruling on a motion for summary judgment, the Court considers only evidence that would be admissible at trial, including properly authenticated exhibits. See Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). The plaintiff has responded with an affidavit satisfying the Court that the objectionable exhibits are the documents they purport to be. See Fed. R. Evid. 901(a). The Court will therefore deny the motion (Doc. 57).
B. The Plaintiff's Motion to Strike (Doc. 60)
The plaintiff asks the Court to strike certain portions of The Black & Decker Corporation's reply brief or, in the alternative, to allow him to conduct additional discovery and file a sur-reply brief.
As a preliminary matter, Local Rule 7.1(c) does not allow sur-reply briefs under any circumstances. The Court will therefore deny the plaintiff's request to file one.
With respect to the plaintiff's request to strike parts of the reply brief and exhibits, the plaintiff argues that The Black & Decker Corporation raises certain arguments for the first time in its reply brief. Specifically, the plaintiff believes he has not had an adequate opportunity to respond to The Black & Decker Corporation's "new argument" that it had no agent for service of process in Illinois in 1993. It is true that arguments in support of a motion that are raised for the first time in a reply brief are waived. Wright v. United States, 139 F.3d 551, 553 (7th Cir. 1998). However, the arguments the plaintiff cites are not new arguments by The Black & Decker Corporation but responses to arguments raised in the plaintiff's response brief. The plaintiff has offered no reason why he could not have discovered the relevant information earlier and included it in his response brief in support of his argument that this suit was timely filed against The Black & Decker Corporation.
The plaintiff invokes Rule 56(f) to ask the Court to withhold ruling on the summary judgment motion until he can conduct more discovery. Rule 56(f), however, comes into play when a party cannot respond to a motion for summary judgment without more discovery, not when a plaintiff belatedly realizes he should have included more in a response he has already filed. Furthermore, a Rule 56(f) motion must be supported by an affidavit, and the plaintiff's motion is not. Woods v. City of Chicago, 234 F.3d 979, 990 (7th Cir. 2000).
For the foregoing reasons, the Court will deny the motion to strike in its entirety (Doc. 60).
Viewing the relevant evidence and drawing all reasonable inferences in the plaintiff's favor, the Court finds the following ...