Luis A. Plata, Plaintiff-Appellant,
Eureka Locker, Inc., Defendant-Appellee.
Submitted April 13, 2017
from the United States District Court for the Central
District of Illinois. No. 12 C 1497 - Michael M. Mihm, Judge.
Wood, Chief Judge, and Posner and Easterbrook, Circuit
Posner, Circuit Judge.
a butcher employed by Eureka Locker, a meat-processing
company, sued Eureka under both state law and federal law (42
U.S.C. § 2000e et seq.), charging it with
having fired him in retaliation for his having filed a
worker's compensation claim against the company. He
claimed that Scott Bittner, the company's owner, had told
him he was "done" after he told Bittner that he
intended to file a worker's compensation claim.
died suddenly while the case was in its early stages. That
left Plata the only witness to the alleged conversation.
Eureka argued to the district court that the Illinois Dead
Man's Act, 735 ILCS 5/8-301, barred Plata from testifying
about a conversation with Bittner that the latter, being
dead, could no longer rebut. The statute "forbids a
party to a suit by or against a firm to testify about any
conversation with a dead agent of the firm, unless a living
agent of the firm was also present at the conversation (to
testify as the dead man himself might have testified to what
was said)." Lovejoy Electronics, Inc. v.
O'Berto, 873 F.2d 1001, 1005 (7th Cir. 1989).
Although Plata's suit was filed in federal rather than
state court, Rule 601 of the Federal Rules of Evidence
("Competency to Testify in General") states that
"in a civil case, state law governs the witness's
competency regarding a claim or defense for which state law
supplies the rule of decision, " and Plata's suit
charged a violation of state as well as federal law.
living agent of the firm was present at the conversation
between Plata and Bittner except of course Bittner, who
couldn't testify at the trial because by then he was
dead. The district court, relying on Soghiro Service Co.
v. Industrial Comm'n, 526 N.E.2d 683, 689 ( Ill.
App. 1988), ruled that Plata could testify that he had told
Bittner that he intended to file a worker's compensation
claim, but could not testify to what Bittner had said in
response. The judge reasoned that Bittner's alleged
response-that Plata was "done"-was too closely
related to Plata's employment contract with Eureka. The
judge also threw out Plata's federal claims, on the
ground that they were time-barred and unsupported by
evidence. The state-law retaliation claim survived, but only-
the judge said-"by the thinnest of margins."
arguing that the Dead Man's Act prohibited Plata from
testifying to any part of his conversation with Bittner,
Eureka relied on the provision of the Act, 735 ILCS 5/8-301,
that states that "in any action or proceeding by or
against any surviving partner or partners, or joint
contractor or joint contractors, no adverse party or person
adversely interested in the event thereof [such as Plata]
shall … be rendered a competent witness to testify to
any admission or conversation by any deceased partner or
joint contractor" unless a surviving partner
was present for the conversation. The statute also bars
evidence of conversations with any deceased agent "who
has contracted with" an adverse party. But Plata sued
for retaliatory discharge, a common-law action created by the
Illinois Supreme Court, so it wasn't a contract dispute.
Eureka argued that the Act bars evidence of conversations
with any deceased agent of a company, period, but this
ignores the statutory language limiting the prohibition to a
conversation with an agent "who has contracted
with" the witness.
needn't pursue the issue of the applicability of the Dead
Man's Act further, because Plata makes no issue of it in
this court and the district judge based his decision not on
whether Plata's termination was a result of telling
Bittner that he was going to file a worker's compensation
claim but instead on Plata's failure to prove damages.
was a difficult litigant, whose lawyer was allowed by the
judge to withdraw from the case after Plata refused to
respond to the defendant's discovery requests. Plata also
ig- nored deadlines to identify proposed exhibits and
witnesses and failed to itemize the damages that he sought
from the defendant. Because he failed to comply with the
court's discovery rules, the judge forbade him to present
any evidence at trial other than his own testimony.
trial Plata waived opening statement, repeated his version of
what Bittner had said to him, and announced that he was
seeking $133, 000 in damages-but added that this was just the
"initial part of the damages" he was seeking. He
did not explain how he had arrived at the $133, 000 figure.
He did not say what he'd been paid at Eureka, how long
he'd been unemployed after being fired, or what attempts
he'd made during that period to find another job. He did
reveal on cross examination that he'd worked at several
places after he left Eureka. But he did not explain whether
the wages he'd received at those jobs had reduced the
damages he was seeking. Unsurprisingly the judge refused to
award him any damages.
Plata has appealed, but his appeal brief is unrelated to
damages or to other relief that he might seek; it is devoted
instead to arguing that the court unreasonably refused to
recruit a lawyer for him. That argument goes nowhere, given
his treatment of his first lawyer.
argues that summary judgment should have been granted to him
and that the district judge did not give him enough time
during the trial to present his case for damages. But
Plata's thin case obviously did not warrant summary
judgment in his favor, nor did it require more time than the
judge allotted to it. ...