Opinion
Case No. 2:02CV-0227 ST
May 27, 2003
Richard N. Barnes, Paul H. Matthews, W. Kevin Tanner, PAUL H. MATTHEWS ASSOCIATES, P.C., Attorneys for the Defendant. Salt Lake City, Utah.
George T. Naegle, Mark L. McCarty, Attorneys for the Plaintiff.
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND MOTIONS TO STRIKE
This mailer came before Court for hearing on May 8, 1998, on Plaintiff's Motion for Summary Judgment, Defendant's Motion for Partial Summary Judgment, and Various Motions to Strike filed therewith. Plaintiff was represented by George T. Naegle and Mark L. McCarty and Defendant was represented by Paul H. Matthews and Richard N. Barnes. The Court, having reviewed the pleadings filed herein, the relevant case law, and having heard the oral arguments of the parties HEREBY ORDERS, ADJUDGES AND DECREES AS FOLLOWS:
I. Plaintiff's Motion to Strike Affidavit of Robert Michaelson
III. Plaintiff's Motion to Strike the Affidavit of Orla Beth Peck
1. The Court finds that Defendant's nondisclosure was justified due to the timing of Mr. Boulter's deposition.
2. Mr. Boulter's deposition was taken on March 25, 2003, just two days before discovery cutoff.
3. During the deposition the parties discovered that an unknown male employee may have information relative to the case.
4. Defendant then did not have time or knowledge to discover the unknown male employee's name prior to the discovery cutoff.
5. Accordingly, Plaintiff's Motion to Strike the Affidavit of Robert Michaclson is DENIED.
II. Defendant's Motion to Strike the Affidavit and Deposition of Richard Boulter
1. Defendant has cited no specific grounds in support of this motion to strike.
2. Accordingly, Defendant's Motion to Strike the Affidavit and Deposition of Richard Boulter is DENIED.
1. The Court finds that the affidavit is not conclusory, is not lacking in foundation, is not speculative and is made on personal knowledge.
2. Defendants identified Ms. Peck as a witness is the supplemental disclosures filed March 20, 2003.
3. Plaintiff conceded this timely filing in his reply memorandum.
4. Therefore, Defendant complied with Rule 37(c)(1).
5. Accordingly, the Motion to Strike the Affidavit of Orla Beth Peck is DENIED.
6. The Court refers the matter as to whether Plaintiff may depose Ms. Peck to the Magistrate.
IV. Plaintiff's Motion to Strike the Letter of Dennis Lindsay
1. Defendant has submitted a letter that was sent to the court reporter dated January 12, 2003, in which an attempt is made to change and/or correct the testimony of Mr. Lindsay taken in a deposition in November of 2002.
2. Rule 30(e) of the Federal Rules of Civil Procedure provides that if a deponent wished to change testimony, the request must be made before its completion and the officer conducting the deposition must denote the request on the certificate. This certificate must be in writing and accompany the record of the deposition.
3. After such request, the deponent has 30 days after being notified by the officer that the transcript is ready in which to sign a statement reciting such changes and the reasons given by the deponent for them.
4. Defendant has failed to comply with this Rule.
5. On January 12, 2003, Mr. Lindsay did send the requested changes to the deposition to the court reporter.
6. This request does not comport to with Rule 30(e), which requires that the requested changes be made prior to completion.
7. Accordingly, Plaintiff's Motion to Strike the Letter of Dennis Lindsay is GRANTED.
V. Plaintiff's Motion to Strike the Affidavit of Scot Baumgartner
VI. Preclusive Effect of Administrative Law Judge's Findings
1. Courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham issue of fact. See Rios v. Bigler, 67 F.3d 1543 (10th Cir. 1995).
2. This Court finds that the Mr. Buamgartner's affidavit does not create a sham issue of fact.
3. The Court further finds that paragraphs 6, 8, and 9 of the affidavit do not fail because of lack of foundation, speculation, conclusory statements, or that the affidavit is not based on personal knowledge.
4. Accordingly, Plaintiff's Motion to Strike the Affidavit of Scot Baumgartner is DENIED.
1. A Federal District Court: "must give a state agency's fact-finding the same preclusive effect to which it would be entitled in the state's court if the state agency: one, was acting in a judicial capacity; second, resolved disputed issues of fact properly before it; and, third, the parties had an adequate opportunity to litigate the issues in dispute." Atiya v. Salt Lake County, 988 F.2d 1013 (10th Cir. 1993).
2. Applying this test to the present matter, the Court finds that factual issues now before the Court regarding Plaintiff's checking activities were never fully and fairly litigated in the hearing before the administrative law judge.
3. The issue before the administrative law judge was narrow in scope and was rendered immediately after Plaintiff's termination.
4. The parties had not had the opportunity to conduct substantial discovery regarding the issues.
5. Since the administrative law judge's decision new facts have been discovered that were not before the administrative law, which is evidenced in his report.
6. Accordingly, the Court will not give the administrative law judge's fact-finding preclusive effect and Plaintiff's Motion for Summary Judgment on that claim is DENIED.
1. The standard to bring an Age Discrimination in Employment Act is stated in Gonzagowski v. Widnall, 115 F.3d 744 (10th Cir. 1997).
2. Applying the standard set forth in that case, the Court finds that there are disputed issues of material fact regarding the ADEA claim.
3. These disputed issues include, but are not limited to, whether Plaintiff was doing satisfactory work at the time he was terminated, and related thereto, the causation/reason for Plaintiff's termination.
4. This is a material issue of fact which must be determined by the jury.
5. Accordingly, Plaintiff's Motion for Summary Judgment on the ADEA claim is DENIED, and Defendant's Motion for Summary Judgment on the ADEA claim is DENIED.
1. The Court finds there are material issues of fact, including but not limited to the facts surrounding Plaintiff's termination, what, if any, statements were made regarding the plaintiff, to whom such alleged statements were made, and the effect and motivation of the alleged maker of the statements, as well as the impact on those hearing the statements.
2. Accordingly, Plaintiff's Motion for Summary Judgment on the Libel/Slander claim is DENIED.
1. The standards of a negligent supervision claim are set forth in Retherford v. ATT Communications, 844 P.2d 949 (Utah 1992).
2. The Court finds, with respect to this claim, that there are material issues of fact, including, but not limited to what statements were made by Scot Baumgartner, the effect of the alleged statements, the motivation for the statements, and other related issues that are material in nature.
3. Accordingly, Plaintiff's Motion for Summary Judgment on the Claim of Negligent Supervision is DENIED.
1. The standards for a claim for intentional interference with prospective economic relations is set forth in Pratt v. Prodata, Inc., 885 P.2d 786 (Utah 1994).
2. The Court finds, with respect to this claim, that there are material issues of fact, including, but not limited to what statements were made by Scot Baumgartner, the effect of the alleged statements, the motivation for the statements, and other related issues that are material in nature.
3. Accordingly, Plaintiff's Motion for Summary Judgment on the Claim of Intentional Interference with Prospective Economic Relations is DENIED.
1. The standard for a claim of retaliation is set forth in O'Neal v. Ferguson Const. Co., 237 F.3d 1248 (10th Cir. 2001).
2. This case indicates that Plaintiff must establish that he engaged in protected opposition to discrimination, that he suffered adverse employment action, and that there is a causal connection between the protected activity and the adverse employment activity.
3. The Court finds that Plaintiff's grounds for adverse employment action cannot be established by the SAR or the filing fo the Proof of Loss, because each occurred after the termination of Plaintiff's employment.
4. The Court will not expand the definition of what constitutes adverse employment action to include activities that may have been engaged in by Defendant after the termination.
5. Therefore, the Court finds that Plaintiff has failed to establish the prima facie case of retaliation.
6. Accordingly, Plaintiff's Motion for Summary Judgment on the Claim of Retaliation is DENIED, and Defendant's Motion for Summary Judgment on the Retaliation Claim is GRANTED.
1. The Court finds that the Suspicious Activity Report is privileged pursuant to 31 U.S.C. § 5318 (g)(3)(A).
2. This section states, in relevant part: "any financial institution that makes a voluntary disclosure of any possible violation of law or regulation to a government agency or makes a disclosure pursuant to this subsection or any other agency shall not be liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any state or political subdivision of any state for such disclosure or for any failure to provide notice of such disclosure to the person who is subject of such disclosure."
3. There is a split of authority on whether there is a good faith requirement implicit to Section 5318.
4. Lopez v. First Union National Bank, 129 F.3d 1186 (11th Cir. 1997), holds that there is good faith requirement.
5. Lee v. Bankers Trust, 166 F.3d 540 (2nd Cir. 1999), held that there is no good faith requirement.
6. With no controlling precedent from the Tenth Circuit, the Court elects to follow the Lee decision and finds that there is no good faith requirement in Section 5318(g)(3)(A).
7. As stated in Lee, there is no good faith requirement for three reasons: (1) the plain language and meaning of the statute controls the interpretation and the plain language of the safe harbor provision describes an unqualified privilege, never mentioning good faith or any suggestive analogue thereof; (2) a common sense interpretation dictates that there is no good faith requirement; and (3) the legislative history of the Act demonstrates that Congress did not intend to limit the protection to statements made in good faith.
8. The Court further finds that Plaintiff's argument concerning 12 C.F.R. § 563.180 is unpersuasive. This section does not hold that there is a good faith requirement but is merely a reporting requirement which may subject the noncomplying reporter to a supervisory action.
9. Accordingly, the Court concludes that the Suspicious Activity Report is not subject to a good faith requirement and is privileged.
10. The Court further finds, based on the public policy for the privilege of the Suspicious Activity Report, that the privilege extends to the supporting documentation as well.
1. The existence of a qualified privilege for the Proof of Loss is controlled by Brehany v. Nordstrom, Inc., 812 P.2d 49 (Utah 1991), which held: "The law has long recognized that a publication is conditionally privileged if made to protect a legitimate interest of the publisher."
2. Whether a publication is conditionally privileged is a question of law to be determined by the trial court unless a genuine factual issues exists regarding the scope of the qualified privilege has been transcended or the defendant acted with malice.
3. The Court finds that there are material issues of fact, including, but not limited to, whether Defendant acted with malice and/or exceeded the scope of the privilege.
4 Plaintiff has pointed out inconsistencies in the testimony of Mr. Lindsay, Chairman of the Board of Directors of Defendant regarding the actual loss to Defendant.
5. In his deposition Mr. Lindsay stated he was unaware of any loss.
6. However, six days previous to this deposition he filed the Proof of Loss and specifically referenced the $74,000 loss.
7. Accordingly, the Court finds that there are material issues of disputed fact that preclude a determination at this time of whether the qualified privilege extends to the Proof of Loss.
1. The Court is aware of the pending motion to amend.
2. That matter is referred to the Magistrate.