Opinion
Case No. C2-04-CV-1179.
August 10, 2006
OPINION ORDER
Presently before the Court is the motion of Defendants Patricia Bruhn, Frank Sabatino, John Bukmir, Tim Porter, John Swan, Linda Burech, and Jim Weisgerber ("City Council Defendants") for summary judgment on all of Plaintiff Samuel Harris' ("Harris") claims against them. (Doc. # 93). Harris has filed a memorandum in response (Doc. # 100) to which the City Council Defendants responded (Doc. # 102). For the reasons that follow, the Court will hold the motion in abeyance until further briefing is completed. (Doc. # 93).
EVIDENTIARY ISSUES
The Court must first address and resolve several evidentiary issues. First, the City Council Defendants assert that the report of forensic document examiner Ray Fraley ("Fraley"), attached to Exhibit F to Harris' memorandum in opposition, is inadmissible because it is not authenticated. (Doc. # 102 at 4 n. 2). Second, Harris attached the minutes of several St. Clairsville City Council meetings to his memorandum in opposition. (Doc. # 100 Ex. C, D). The City Defendants state that those minutes are not properly authenticated. (Doc. # 102 at 3 n. 1). Lastly, the City Defendants note that Harris cited to the deposition testimony of Jim Weisgerber ("Weisgerber") without providing the Court with a copy of that deposition. (Doc. # 102 at 4 n. 2). The Court finds that two of the three objections are well-taken.
Although a party must produce evidence in support of its opposition to a motion for summary judgment, not all types of evidence are permissible. McQuain v. Ebner Furnaces, Inc., 55 F. Supp. 2d 763, 769-770 (N.D. Ohio 1999). For example, "hearsay evidence cannot be considered on a motion for summary judgment." Wiley v. United States, 20 F.3d 222, 225-226 (6th Cir. 1994). Additionally, the Sixth Circuit has held "`it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'" Id. at 226 (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Admissible evidence is defined as "evidence that is relevant and of such a character . . . that the court should receive it." (Black's Law Dictionary 235 (pocket ed. 1996)). Federal Rule of Evidence 401 defines relevant evidence as "evidence having any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Authentication is a special aspect of relevancy concerned with establishing the genuineness of evidence and is a condition precedent to admissibility. Fed.R.Evid. 901(a) and advisory committee's notes.
Evidence that is neither authenticated nor admissible "may be considered by the district court unless the opposing party affirmatively raises the issue of the defect. The burden is on the opposing party to object to the improper evidence; failure to object constitutes a waiver." McQuain, 55 F. Supp. 2d at 770. The City Council Defendants have objected to Harris' proffered evidence as noted above. (Doc. # 56 at 1).
Perhaps more interesting is what the City Council Defendants failed to object to — namely, Exhibit B to Harris' memorandum in opposition. That exhibit purports to be a September 9, 2004 staff report regarding the proposed zoning change to a piece of property that belonged to Harris. Harris failed to file any affidavits authenticating the report, and the document itself is not self-authenticating. Regardless, the Court may consider the document due to the failure of the City Council Defendants to object.
A. Fraley's Report
In an apparent attempt to authenticate Fraley's report, Harris' attorney John Yaklevich ("Yaklevich") stated in his affidavit "[a]ttached hereto is a copy of the Rule 26(f) Report of Ray Fraley, plaintiff's handwriting expert in this auction." Yaklevich's attempt fails, as the only person who authenticate the report is Fraley because he was the person who actually completed the document. Accordingly, the Court SUSTAINS the objection of the City Council Defendants and STRIKES Fraley's report from the record for lack of authentication.
B. City Council Minutes
The Court addresses the City Council Defendants' mention of the City Council minutes only for the sake of completeness. The City Council Defendants offer a weak argument to Harris' attachment of City Council minutes to his memorandum in opposition. Namely, the City Council Defendants state "[a]lthough [Harris] has not properly authenticated [Exs. C D], the [City Council] Defendants do not dispute that Exhibit C attached to Plaintiff's Memorandum in Opposition is an accurate copy of the minutes of the Council meeting held on July 19, 2004." (Doc. # 102 at 3 n. 1). The City Council Defendants do not specifically object to Exhibit D to Harris' memorandum — a copy of the August 2, 2004 City Council meeting minutes. (Doc. # 102 at 3). The acknowledgment that Exhibit C is an accurate copy of the July 19, 2004 meeting minutes, coupled with the failure to lodge an authentication objection to the August 2, 2004 minutes, compels the Court to OVERRRULE any "objection" the City Defendants intended to raise in their reply.
C. Weisgerber Deposition
Lastly, the City Council Defendants are correct that Harris failed to file Weisgerber's deposition with the Court even though Harris relied on Weisgerber's testimony in his memorandum in opposition. (Doc. # 102 at 4 n. 2). Southern District of Ohio Local Rule 7.2(e) requires Harris to provide the Court with that information. As such, the Court SUSTAINS the objection of the City Council Defendants and the Court hereby STRIKES all portions of Harris' memorandum in opposition that reference Weisgerber's deposition testimony.
For reasons that will become clear shortly, the Court shall bypass the traditional background section and shall instead proceed directly to a recitation of the familiar summary judgment standard before turning to a discussion of the present motion.
STANDARD OF REVIEW
Summary judgment is appropriate "if 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). The Court must therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In viewing the evidence, the Court must draw all reasonable inferences in favor of the nonmoving party, which must set forth specific facts showing that there is a genuine issue of material fact for trial. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52). However, in ruling on a motion for summary judgment, "a district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
DISCUSSION
Harris asserts the following claims against the City Council Defendants: tortious interference with contract and business relationships; annexation in violation of the Ohio Revised Code; takings in violation the Fifth and Fourteenth Amendments to the United States; and civil conspiracy. (Doc. # 59). The City Defendants move for full summary judgment, arguing that no genuine issue of material fact exists and that they are entitled to absolute immunity. (Doc. # 93).
Surprisingly, Harris agrees with the City Council Defendants with respect to all of his claims except civil conspiracy. (Doc. # 100 at 1, 5, 9, 10). Stated otherwise, Harris does not contest the entry of judgment in the City Council Defendants' favor on Harris' claims for tortious interference, takings, and annexation. As a result, the Court GRANTS the City Council Defendants' motion for summary judgment for those claims against them in their individual and official capacities. See Scales v. Metro. Gov't of Nashville, No. 3:05-553, 2006 U.S. Dist. LEXIS 51282, * 28-29 (M.D. Tenn. 2006) (granting defendant's motion for summary judgment on claims that plaintiff failed to respond to or address in his memorandum in opposition). See also Larimore v. Grant, No. 3:03CV664-S, 2006 U.S. Dist. LEXIS 49743, * 4-5 (W.D. Ky. 2006) (assuming plaintiff abandoned claim because plaintiff failed to address claim in memorandum in opposition to defendant's motion for summary judgment).
The Court reaches a different result with respect to Harris' civil conspiracy claim. At the time Harris filed his memorandum in opposition, discovery had not been completed. Thus, Harris implicitly moves the Court for leave to supplement his response in opposition on the civil conspiracy claim against the City Council Defendants with any evidence he obtained after filing his response up to the close of discovery. (Doc. # 100 at 9).
Discovery has now closed. As such, the Court GRANTS Harris' request, and Harris may file a supplement to his memorandum in opposition with any relevant evidence obtained since Harris filed his memorandum and the date discovery ended. Such supplementation is limited to the civil conspiracy claim against the City Counsel Defendants. If Harris elects to supplement, he must do so on or before August 18, 2006. The City Council Defendants shall then have until August 25, 2006 to file a response to Harris' supplemental filing. No further briefing will be permitted and no extensions will be allowed.
The Court schedules a non-oral hearing on the City Council Defendants' motion for summary judgment on the civil conspiracy claim on August 28, 2006.
IT IS SO ORDERED.