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Kiswani v. Phoenix Security Agency

January 2, 2008

IBRIHAM KISWANI, PLAINTIFF,
v.
PHOENIX SECURITY AGENCY, INC.; MARCELINO RENTERIA, INDIVIDUALLY AND AS AGENT OF PHOENIX SECURITY AGENCY, INC.; OFFICER AARON MAGISTRATE JUDGE MORTON DENLOW CUNNINGHAM, INDIVIDUALLY; OFFICER ANGEL CAHUE, INDIVIDUALLY; CAPTAIN FRED T. KONET, INDIVIDUALLY; LT. EDWARD FLYNN, INDIVIDUALLY; OFFICER JAMES MCKITTRICK, INDIVIDUALLY; OFFICER LUIS RAMIREZ, INDIVIDUALLY; AND THE CITY OF CHICAGO, AN ILLINOIS MUNICIPAL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Morton Denlow United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Ibriham Kiswani ("Plaintiff") has filed a twenty-two-count second amended complaint*fn1 against the various defendants. At issue before the Court are the claims against Defendant Phoenix Security Agency, Inc. ("Phoenix") and Defendant Marcelino Renteria

("Renteria") (collectively, "Defendants"). Count IV alleges civil conspiracy against Renteria. Counts V and VI allege malicious prosecution against Renteria and Phoenix, respectively. Counts XI and XII allege false arrest against Renteria and Phoenix, respectively. Currently before the Court is Defendants' motion for summary judgment to dismiss Counts IV-VI, and Counts XI-XII. Defendants have also brought a motion to strike Plaintiff's Rule 56.1(b)(3)(C) Statement of Additional Facts. For the following reasons, the Court grants in part and denies in part Defendants' motion to strike, and grants Defendants' motion for summary judgment

I. DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S RULE 56.1(b)(3)(C) STATEMENT OF ADDITIONAL FACTS

In addition to responding to Plaintiff's Rule 56.1(b)(3)(C) Statement of Additional Facts ("Plaintiff's Statement" or "Statement") as required by Local Rule 56.1, Defendants have filed a motion to strike Plaintiff's Statement in its entirety. In the alternative, Defendants argue that nine of the 19 paragraphs that Plaintiff includes in his Statement should be stricken.

A. Local Rule 56.1

The Northern District has promulgated Local Rules 56.1(a) and 56.1(b) to delineate the parties' obligations in summary judgment proceedings, and the court has broad discretion to enforce these rules. Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000) (also stating that "the Court of Appeals for the Seventh Circuit regularly upholds strict enforcement of Local Rule 56.1").*fn2 Rule 56.1(a)(3) requires the movant to submit a statement of undisputed material facts that entitle him to judgment as a matter of law. Id.; N.D. Ill. L.R. 56.1(a).The non-movant must respond to the movant's statement of facts, and may also submit a statement of additional facts. Malec, 191 F.R.D. at 583; N.D. Ill. L.R. 56.1(b). If a non-movant fails to properly respond to a movant's 56.1(a) statement, the movant's factual allegations are deemed admitted. Malec, 191 F.R.D. at 584.

The requirements for the non-movant's statement of additional facts under Rule 56.1(b)(3)(C) are the same as that of the movant's statement of facts under Rule 56.1(a)(3). Id. The non-movant's "statement of additional facts must set forth material facts that require the denial of summary judgment, supported by specific references to the record." Id.; N.D. Ill. L.R. 56.1(b)(3)(C). The statement must contain only factual allegations, supported by specific references to exact pieces of the record that support the factual contention contained in the paragraph. Malec, 191 F.R.D. at 584. Such references must "include page (or paragraph) numbers, as opposed to simply citing an entire deposition, affidavit, or other exhibit document." Id. ("District Courts are not obliged . . . to scour the record looking for factual disputes;" "Factual allegations not properly supported by citation to the record are nullities."). Moreover, any "documents submitted with a motion that are not referred to in the statement of facts will be ignored." Id.

A non-movant may use innumerable types of evidentiary material to support a statement of facts, however the most common include affidavits, deposition transcripts and business documents. Id. Any allegations supported by personal knowledge only, however, must be supported by affidavit. Id. Additionally, the evidence supporting the allegations must represent admissible evidence. Id. at 585 ("a hearsay statement made during a deposition does not constitute adequate evidentiary support for a factual proposition").

B. Plaintiff's Statement Should Not be Stricken in its Entirety

Defendants argue that Plaintiff's Statement does not comply with the requirements of Local Rule 56.1(b)(3)(C). Defendants assert that Plaintiff's Statement should be stricken in its entirety because the supporting materials for Plaintiff's Statement are not attached to the Statement but rather are attached to Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment. Although Defendants' assertion is correct, Rule 56.1 does not require the supporting materials to specifically be attached to the Statement. Plaintiff is only required to provide such materials, and to do so in a way that does not require the Court to "scour the record looking for factual disputes." Id. at 583. Plaintiff has cited to specific page and paragraph numbers as required by Local Rule 56.1, and has indicated in his Statement the document to which the supporting materials are attached. Although the Court finds that Rule 56.1 anticipates the parties will attach their supporting materials directly to their Statements, and the Court advises parties to do so, because the Court can still easily find the supporting materials to which Plaintiff refers, it will not strike Plaintiff's statement because of this technicality.

C. Paragraphs 1, 3 - 7, and 16 - 17 of Plaintiff's Statement should not be Stricken, but Paragraph 8 Should be Stricken

Defendants also argue that several of Plaintiff's paragraphs are not supported by the proper evidence as is required by Rule 56.1. Defendants argue that Paragraphs 3 thru 7 are only supported by documents containing copies of licenses, and not by affidavit or deposition testimony, and thus are not supported by the proper evidence. As stated above, although affidavits and deposition testimony are the most common types of evidentiary material used, nonmovants are not limited to these types of material when providing support for their factual allegations. To support the allegations contained in Paragraphs 3 thru 7, Plaintiff provides photocopies of various licenses and cards referenced in the allegations. The photocopies support the existence and validity of the licenses and cards. Although additional evidence may be required at trial to further demonstrate the validity of the licenses and cards, such as Plaintiff's testimony, such testimony is not required here as the photocopies sufficiently support his assertion for the purpose of a motion for summary judgment. Thus, Paragraphs 3 thru 7 of Plaintiff's Statement should not be stricken.

Defendants also argue that Paragraph 8 should be stricken because it is based on speculation and hearsay. Paragraph 8 states that "[b]etween July 24, 2004 and July 31, 2004, a[n] employee of Phoenix Security Agency was arrested for not having the proper documentation to carry a firearm." To support the allegation contained in this paragraph, Plaintiff cites to pages 144 and 145 of Plaintiff's deposition, where Plaintiff discusses his knowledge of the arrest, and his conversation with an individual about the arrest. Plaintiff does not, however, cite to any police records or other documentation supporting this fact. Without any additional evidence of this arrest beyond Plaintiff's deposition testimony, this allegation is based on hearsay and speculation, and thus is not adequate evidentiary support for this proposition. Thus, the Court grants Defendants' motion to strike Paragraph 8.

Finally, Defendants argue that Paragraphs 16 and 17 should be stricken because they are based on an illegible and unauthenticated document, and that Paragraph 1 should be stricken because it is also based on an unauthenticated document. To support the allegations contained in Paragraphs 16 and 17, Plaintiff cites to Exhibit E, which contain photocopies of the licenses referred to in the paragraphs. Although the Court acknowledges that the photocopies are difficult to read, they are sufficiently legible to provide the required support under Rule 56.1. Although Plaintiff will be required to lay the proper foundation and to properly authenticate all of the documents cited to in Paragraphs 1, 16 and 17 to admit them into evidence at trial, he is not required to do so for the purposes of this motion.* ...


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