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Kasak v. Village of Bedford Park

June 5, 2008

RAYMOND KASAK, PLAINTIFF,
v.
VILLAGE OF BEDFORD PARK AND LEO J. DUBOIS, INDIVIDUALLY, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Raymond Kasak ("Plaintiff" or "Kasak") filed a three-count complaint against Defendants Village of Bedford Park ("Bedford Park") and Chief Leo J. DuBois ("Chief DuBois" or "Defendant DuBois") (collectively, "Defendants"). Counts I and III of the First Amended Complaint were previously dismissed, leaving Plaintiff's political retaliation claim (Count II) as the only remaining count. Kasak v. Village of Bedford Park, 514 F. Supp. 2d 1071 (N.D. Ill. 2007).

In April of 2008, Plaintiff filed a Second Amended Complaint, asserting his political retaliation claim as Count I and adding a procedural due process claim as Count II. Defendants have moved for summary judgment on Plaintiff's political retaliation claim, Count I.*fn1 For the reasons stated below, the Court grants Defendants' motion to dismiss Count I of Plaintiff's Second Amended Complaint.

I. DEFENDANTS' MOTION TO STRIKE AND DEEM ADMITTED PORTIONS OF PLAINTIFF'S RESPONSE TO DEFENDANTS' JOINT LOCAL RULE 56.1 STATEMENT OF FACTS IN SUPPORT OF SUMMARY JUDGMENT AND PLAINTIFF'S LOCAL RULE 56.1 STATEMENT OF ADDITIONAL MATERIAL

FACTS

Defendants have moved to strike and deem admitted portions of Plaintiff's Response to Defendants' Joint Local Rule 56.1 Statement of Facts in Support of Summary Judgment and Plaintiff's Local Rule 56.1 Statement of Additional Material Facts.

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). The response must contain "a response to each numbered paragraph in the moving party's statement," mirroring the movant's statement in form and "including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Malec, 191 F.R.D. at 584; N.D. Ill. L.R. 56.1(b). Thus, the non-movant must cite evidentiary materials justifying any denial. Malec, 191 F.R.D. at 584. "If the cited material does not clearly create a genuine dispute over the movant's allegedly undisputed fact, the non-movant should provide an explanation." Id. A non-movant's response should also not contain purely argumentative denials. Id. If a non-movant fails to properly respond to a movant's 56.1(a) statement, the movant's factual allegations are deemed admitted. Id.

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. Defendants' Motion to Strike Certain Portions of Plaintiff's Responses to Defendants' Joint Rule 56.1 Statement of Undisputed Facts

Defendants move this Court to strike certain portions of Plaintiff's Responses to Defendants' Joint Rule 56.1 Statement of Undisputed Facts, based on Plaintiff's inclusion of argumentative detail and new affirmative facts into several of his responses. Defendants also assert that certain portions should be stricken because Plaintiff has improperly cited to the record for support of his particular denials, improperly requiring the Court to scour the filings for this alleged support. In particular, Defendants move to strike Plaintiff's responses to Paragraphs 10, 12, 14-26, 29-30, 32, 35, 38, 41, 44-46, 50 and 57. For the following reasons, the Court grants in part and denies in part Defendants' motion.

1. The Court Grants Defendants' Motion to Strike Plaintiff's Responses to Paragraphs 10, 12, 14, 16-20, 23-26, 29-30, 32, 38, 44-46 and 50.

The Court grants Defendants' Motion to Strike Plaintiff's Responses to Paragraphs 10, 12, 14, 16-20, 23-26, 29-30, 32, 38, 44-46 and 50. Several of these responses contain improper denials, with no citation to the record to support the denial or statement that the information cited to by Defendants does not support the alleged facts. In most of these responses, Plaintiff merely denies the statements without providing any explanation or citation to the record, while also improperly injecting new factual material into the responses.*fn3 Although Plaintiff is entitled to submit new factual material in his statement of additional facts, injecting such facts into his responses is inappropriate. Moreover, in some of the responses, Plaintiff merely provides too general a citation, improperly requiring the Court to scour those records to find support for Plaintiff's response. See PR ¶ 20, 45-46.*fn4 For Plaintiff's Response to Paragraph 50, although he appears to properly deny the facts by giving additional statements to contradict the fact that Robison had no knowledge of what Plaintiff did for his campaign, the page that Plaintiff cites to for support of these statements has not been provided to the Court. Without evidence to support the statements that Plaintiff puts forth to contradict Defendant's statements, the Court cannot resolve this disputed fact in Plaintiff's favor. Thus, for these reasons, the Court grants Defendants' Motion to Strike the above responses, and deems them admitted.

2. The Court Grants in Part and Denies in Part Defendants' Motion to Strike Plaintiff's Responses to Paragraphs 15, 21-22, 35, 41 and 57

Plaintiff appears to properly deny portions of Paragraphs 15, 21-22 and 57 by providing citations to the record to support his denials. However, Plaintiff improperly injects additional facts into these responses as well. The Court strikes the portions of Plaintiff's responses that include this additional factual material, but accepts the portions of the responses that state Plaintiff's denial and the supporting evidence for that denial. In Plaintiff's responses to Paragraphs 35 and 41, Plaintiff also properly denies the statements, by providing support for his denial. Although he injects new facts into his response to Paragraph 41, he does so for the purposes of denying the statement that "Robison had no formal campaigning." Although the Court does not accept these additional statements as facts to be included in this motion, it allows them as support for Plaintiff's denial of Defendants' statement. Thus, the Court grants in part and denies in part Defendant's Motion to Strike the above responses.

C. Defendants' Motion to Strike Paragraphs 41-67 of Plaintiff's Statement of Additional Facts

Defendants argue that Plaintiff violated Local Rule 56.1(b)(3)(c) by filing 27 additional statements of material uncontested facts without seeking prior leave of Court. Local Rule 56.1(b)(3)(c) states that a party responding to a motion for summary judgment may file "a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." The Rule further provides that "absent prior leave of court, a respondent to a summary judgment motion shall not file more than 40 separately numbered statements of additional facts." The moving party is limited to filing no more than 80 numbered statements of facts. L.R. 56.1. The Committee Comment to the Rule provides additional background on the purpose for this requirement:

The judges of this Court have observed that parties frequently include in their LR 56.1 statements facts that are unnecessary to the motion and/or are disputed. The judges' observation is that in the vast majority of cases, a limit of 80 asserted statements of fact and 40 assertions of additional statements of fact will be more than sufficient to determine whether the case is appropriate for summary judgment. The number of statements of fact has been set in light of the requirement of section (a)(3), which requires that only "material facts" be set down. A party may seek leave to file more asserted statements of fact or additional fact, upon a showing that the complexity of the case requires a relaxation of the 80 or 40 statement limit.

L.R. 56.1, Committee Comments. Thus, a Court may refuse to consider statements of fact in excess of the number permitted by Local Rule 56.1, particularly where the number of statements filed far exceeded the number permitted, and where the additional facts were immaterial to the motion. See Green v. Harrah's Illinois Corp., 2004 WL 1102272 (N.D. Ill. 2004) (refusing to consider statements of material undisputed fact in excess of the number permitted by L.R. 56.1).

In this case, Plaintiff has filed 27 statements of fact in excess of the number prescribed without permission from the Court. Without waiving any rights with respect to their motion to strike, Defendants admit 16 of those statements. Because the additional number of facts are not so excessive, and the Court is not required to spend significant resources to resolve disputes surrounding the undisputed facts, the Court accepts those additional undisputed facts.

However, the Court grants Defendants' motion as to the remaining 11 disputed facts. The Court notes that, although some of the disputed facts are material to Plaintiff's claims, the acceptance of these additional facts in Plaintiff's favor would not change the Court's ruling on Defendants' motion for summary judgment. Accordingly, the Court grants in part and denies in part Defendants' Motion to Strike Certain Paragraphs of Plaintiff's Local Rule 56.1 Statement of Additional Material Facts.

II. BACKGROUND FACTS

The following facts are undisputed or presented in the light most favorable to Plaintiff when contested.*fn5

A. Relationship Between the Parties

Plaintiff has been employed as a police officer by Defendant Bedford Park, an Illinois municipality, for 23 years. PR ¶ 2, 6. Plaintiff does not live in Bedford Park and does not vote in Bedford Park municipal elections. PR ¶ 39. At all relevant times, Defendant DuBois was Bedford Park's Chief of Police and Plaintiff's supervisor. PR ¶ 3.

In 1987, Plaintiff was promoted from the rank of patrol officer to the rank of sergeant, and in 2001, he was promoted from sergeant to lieutenant. PR ¶ 7, 8. Plaintiff served as supervisor in the juvenile division of the police department for eighteen years until he was removed from that position on April 30, 2004. PR ¶ 9.

B. Plaintiff's Position as Supervisor of the Juvenile Division

Records are maintained in the juvenile division in both a computer data-base and a paper filing system. PR ¶ 11. As supervisor, Plaintiff's duties included making certain that juvenile file data was accurately entered into the department's computer system, and that paper files were maintained properly. Def. Ex. 1 at 153-54.

1. Fall 2003

On October 29, 2003, Village President Ronald Robison, Village Attorney Gryczewski, Trustees Regep, Ploszek, and Kensik, Police Chief DuBois, and Deputy Chiefs Moritz and Wahl attended a meeting with Police Officers Flint, Mokos, and Faulhaber regarding the upcoming sergeant's ...


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