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I.A. Rana Enterprises, Inc. v. City of Aurora

June 24, 2009

I.A. RANA ENTERPRISES, INC., AN ILLINOIS CORPORATION, IQTIDAR RANA, AN INDIVIDUAL, PLAINTIFFS,
v.
CITY OF AURORA, AN ILLINOIS MUNICIPAL CORPORATION, TOM WEISNER, AN INDIVIDUAL, ROBERT O'CONNOR, AN INDIVIDUAL, MIKE SAVILLE, AN INDIVIDUAL, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiffs Iqtidar Rana and I. A. Rana Enterprises, Inc., ("Plaintiffs" or "Rana") filed a First Amendment lawsuit under 42 U.S.C. § 1983 against Defendants City of Aurora ("City"), Mayor Thomas Weisner ("Mayor" or "Weisner"), and Aldermen Robert O'Connor ("O'Connor") and Mike Saville ("Saville") (collectively "Defendants"), alleging a violation of their First Amendment rights. Specifically, Plaintiffs allege Defendants engaged in viewpoint discrimination and retaliation. Defendants filed a motion for summary judgment asserting Plaintiffs' two-count Amended Complaint is unsupported by evidence.

In Count I, Plaintiffs allege Defendants engaged in viewpoint discrimination by restricting comments made by Plaintiffs' lawyer, Mark Daniel ("Daniel"), during two City Council meetings in February, 2007. In Count II, Plaintiffs allege Defendants retaliated against them for the subsequent filing of this lawsuit by unnecessarily prolonging a construction project which limited public access to Plaintiffs' business. Defendants also filed a motion to strike and deem admitted portions of Plaintiffs' Rule 56.1 Response to Defendants' Statement of Facts In Support of Summary Judgment and Plaintiffs' Statement of Additional Material Facts. The Court held oral argument on June 10, 2009. For the following reasons, Defendants' motion to strike and deem admitted is granted in part and denied in part. Defendants' motion for summary judgment is granted.

I. DEFENDANTS' MOTION TO STRIKE AND DEEM ADMITTED PORTIONS OF PLAINTIFFS' RULE 56.1 RESPONSE TO DEFENDANTS' STATEMENT OF FACTS IN SUPPORT OF SUMMARY JUDGMENT AND PLAINTIFFS' RULE 56.1 STATEMENT OF ADDITIONAL FACTS

Defendants move this Court to strike and deem admitted portions of Plaintiffs' Local Rule 56.1 Statement of Material Facts in Response to Defendants' motion for summary judgment and Plaintiffs' Local Rule 56.1 Statement of Additional Facts.*fn1

A. Local Rule 56.1

The Northern District of Illinois 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. Kasak v. Village of Bedford Park, 563 F. Supp. 2d 864, 867 (N.D. Ill. 2008)(citing Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000) ("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. Kasak, 563 F. Supp. 2d at 867; 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." Kasak, 563 F. Supp. 2d at 867(quoting 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. Kasak, 563 F. Supp. 2d at 867. "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. (quoting Malec, 191 F.R.D. at 584). A non-movant's response should also not contain purely argumentative denials. Kasak, 563 F. Supp. 2d at 867. If a non-movant fails to properly respond to a movant's 56.1(a)(3) 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. (quoting Malec, 191 F.R.D. at 584); 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. Kasak, 563 F. Supp. 2d at 867. Such references must "include page (or paragraph) numbers, as opposed to simply citing an entire deposition, affidavit, or other exhibit document." Id. (quoting Malec, 191 F.R.D. at 584("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. Any allegations supported by personal knowledge only must be supported by affidavit. Kasak, 563 F. Supp. 2d at 867. Additionally, the evidence supporting the allegations must represent admissible evidence. Id. (citing Malec, 191 F.R.D. at 585 ("a hearsay statement made during a deposition does not constitute adequate evidentiary support for a factual proposition")).

B. Defendants' Motion to Strike Portions of Plaintiffs' Local Rule 56.1(b)(3) Response to Defendants' Statement of Material Facts

Defendants move this Court to strike portions of Plaintiffs' Local Rule 56.1(b)(3) Response to Defendants' Statement of Material Facts. Defendants challenge virtually every response in which Plaintiffs contest the facts asserted. Defendants argue Plaintiffs failed to conform to the requirements of Local Rule 56.1 by failing to properly cite to the record in support of their denials, and by including argumentative statements and additional facts within their responses. Failure to comply with Local Rule 56.1 may result in severe consequences:

This rule may be the most important litigation rule outside the statutes of limitation because the consequences of failing to satisfy its requirements are so dire. Essentially, the penalty for failing to properly respond to a movant's 56.1(a) statement is usually summary judgment for the movant (at least if the movant has done his or her job correctly) because the movant's factual allegations are deemed admitted.

Malec, 191 F.R.D. at 584. Defendants move to strike Plaintiffs' responses to paragraphs 12, 14-16, 19, 20-22, 26, 27, 31, 44-49, and 52-54. For the following reasons, Defendants' motion to strike is granted in part and denied in part.

1. The Court Grants Defendants' Motion to Strike Plaintiffs' Responses to Paragraphs 12, 14, 19, 21-22, 26, 27, 31, 44, 46, 48, and 52-53

The Court grants Defendants' motion to strike Plaintiffs' responses to paragraphs 12, 14, 19, 21-22, 26, 27, 31, 44, 46, 48, and 52-53. In these paragraphs, Plaintiffs fail to comply with the requirements of Local Rule 56.1(b)(3). Kasak, 563 F. Supp. 2d at 867-68 (citing Malec, 191 F.R.D. at 583-85); N.D. Ill. L.R. 56.1(b). For example, in paragraph 12, Plaintiffs not only assert new factual allegations (the range of topics related to the proposed redevelopment agreement), but also cite generally to a 59-page document without providing specific references to the portions relied upon. Kasak, 563 F. Supp. 2d at 868 (striking general references "improperly requiring the Court to scour those records to find support for Plaintiff's response"); PR ¶ 12; see Pl. Ex. A. Plaintiffs failed to adhere to the guidelines provided in Kasak by inserting new facts into multiple paragraphs. See PR ¶ 46 ("notice resulted from additional inquiries made"); PR ¶ 52 ("The North Avenue point of ingress and egress was closed for at least five, and sometimes six days per week."); see also PR ¶¶ 12, 19, 22, 27, 49, and 53. While Plaintiffs are entitled to submit new factual material in addition to their responses, "injecting such facts into [their] responses is inappropriate." Kasak, 563 F. Supp. 2d at 868.

Several paragraphs contain improper denials, with no citation to the record to support the denial, or statement that the information cited by the Defendants does not support the alleged facts. Kasak, 563 F. Supp. 2d at 868; see PR ¶ 14 ("Ald. O'Connor and Ald. Saville determined the rules . . ."); PR ¶ 21 ("Ald. O'Connor advised Daniel that he was beyond the relevant subject matter during the initial three minutes"); see also PR ¶¶ 22, 26, 27, 31, 44, 46, 48, and 53. As Rule 56.1(b) makes clear, such citations are required "in the case of any disagreement." Kasak, 563 F. Supp. 2d at 867 ("the non-movant must cite evidentiary materials justifying any denial"); N.D. Ill. L.R. 56.1(b)(3). 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 Plaintiffs' Responses to Paragraphs 15-16, 20, 45, 47, 49, and 54

Plaintiffs appear to properly deny portions of paragraphs 15-16, 20, 45, 47, 49, and 54 by providing appropriate citations to the record in support of their assertions. Paragraph 20, for example, provides specific references to sections of the proposed redevelopment agreement supporting the factual contention asserted within the paragraph. See PR ¶ 20. However, Plaintiffs improperly inject additional facts into these paragraphs. See PR ¶ 49 ("The gas station at the southeast corner . . . suffered a complete closure . . . for an aggregate of 75 days"). The Court strikes the portions of Plaintiffs' responses that include this additional factual material, but accepts the portions of the responses that state Plaintiffs' denials and the supporting evidence for those denials. Kasak, 563 F. Supp. 2d at 869. In their responses to paragraphs 47 and 49, Plaintiffs introduce argumentative and speculative statements which this Court strikes. PR ¶ 47 ("The loss was neither brief nor temporary"); PR ¶ 49 ("It may be that the other gas station experienced closure issues"). The Court accepts the remaining portions of paragraphs 47 and 49, as well as paragraphs 15-16, 20, 45, and 54, which are supported by proper citations to the record. Thus, the Court grants in part and denies in part Defendants' motion to strike the above responses.

C. Defendants' Motion to Strike Plaintiffs' Statement of Additional Facts

Defendants also move this Court to strike portions of Plaintiffs' Statement of Additional Facts for failing to conform to the requirements of Rule 56.1(b)(3)(C). This portion of Rule 56.1(b) allows Plaintiffs to assert "any additional facts that require the denial of summary judgment." N.D. Ill. L.R. 56.1(b)(3)(C). Any such facts must "includ[e] references to the affidavits, parts of the record, and other supporting materials relied on." Id. Defendants correctly assert that paragraphs 56-63 and 66 of Plaintiffs' Statement of Additional Facts either fail to cite to any evidence in support of the facts alleged, or cite to portions of the record which do not support or directly conflict with those facts. See PSAF ¶¶ 56-57, 59, 62-63, 66 (no citations provided); ¶¶ 58-61 (not supported by the record). In paragraphs 58 and 59, for example, Plaintiffs' assertion that another member of the public, Dr. Roberts, spoke for over three minutes while Mr. Daniel "was forced to attempt to confine his comments to a mere two minutes" is not supported by the record cited, which shows that Mr. Daniel spoke for longer than Dr. Roberts. See PSAF ¶¶ 58-59; DR ¶¶ 58-59; Def. Ex. 5, pp. 34-38; Def. Ex. 5, pp. 54-61; PR ¶ 19 ("Daniel spoke for longer than three minutes"). In paragraph 61, Plaintiffs allege that "[Defendant] O'Connor implied that Daniel would be removed from the meeting." PSAF ¶ 61. The portion of the record cited shows that Defendant O'Connor made no such implication, but rather discussed removal as an option that would not be employed. See Def. Ex. 5, 61:10-62:2 ("we can ask to remove them from the room but we are not going to do that").

Several of these paragraphs also contain argumentative statements rather than discrete factual contentions. PSAF ¶ 62 ("The transcript speaks for itself in that it is obvious that the time limit imposed upon Daniel made it impossible . . ."); ¶ 63 ("Daniel obviously intended to speak in a fashion adverse to the proposal"). As this Court explained in Kasak, Plaintiffs' Statement of Additional Facts "must contain only factual allegations, supported by specific references to exact pieces of the record that support the factual contention contained in the paragraph." 563 F. Supp. 2d at 867. Thus, the Court grants Defendants' motion to strike paragraphs 56-63 and 66. Due to the lack of support in the record, the additional facts asserted by Plaintiffs in the above paragraphs would not change the Court's ruling on Defendants' motion for summary judgment.

Plaintiffs do provide adequate citation for the additional facts put forth in paragraphs 64 and 67-69. Defendants contend the facts alleged in paragraphs 64 and 67-68 are not material to this case because they allege actions taken by the Defendants against non-parties and actions taken by Defendants that are not challenged as First Amendment violations. See PSAF ¶¶ 64, 67-68; DR ¶¶ 64, 67-68. Plaintiffs, however, seek to admit such allegations to create questions of material fact regarding the justification offered by Defendants for their actions with regard to this litigation. See Pl. Resp. 3-5. For the purposes of this summary judgment motion, the Court will allow these paragraphs as additional contextual support for Plaintiffs' claims. In ...


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