Shefts v. Petrakis

Filing 193

ORDER & OPINION entered by Judge Joe Billy McDade on 9/19/11 granting in part and denying in part 182 Motion to Strike or In the Alternative Fix a Date. Plaintiff may file a surreply as described in this Order; denying 189 Motion for Extension of Time. All Responses to Plaintiff's Motion for Summary Judgment due by 10/3/2011. (SF, ilcd)

E-FILED

Tuesday, 20 September, 2011 12:45:57 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JAMISON J. SHEFTS, an individual,
Plaintiff,
v.
JOHN PETRAKIS, an individual,
KEVIN MORGAN, an individual,
and HEIDI HUFFMAN, an individual,
and ACCESS2GO, INC., an Illinois
corporation,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 10-cv-1104

ORDER & OPINION
This matter is before the Court on Defendants Petrakis, Morgan, and
Huffman’s (“Defendants”) Motion to Extend Filing Deadlines on Plaintiff’s Second
Motion for Summary Judgment, and Plaintiff’s Motion to Strike Section II and
Section IV(A) of Defendants’ Reply to Shefts’ Response Opposing Motion for
Summary Judgment, or, In the Alternative, Fix a Date for Shefts to File a SurReply in Support of His Response Opposing Motion for Summary Judgment. (Docs.
189 & 182). Each party has filed a brief in opposition to the other’s motion. (Docs.
191 & 188). For the reasons stated below, Defendants’ Motion to Extend Filing
Deadlines on Plaintiff’s Second Motion for Summary Judgment is denied, and
Plaintiff’s Motion to Strike Section II and Section IV(A) of Defendants’ Reply to
Shefts’ Response Opposing Motion for Summary Judgment, or, In the Alternative,

Fix a Date for Shefts to File a Sur-Reply in Support of His Response Opposing
Motion for Summary Judgment is granted in part and denied in part.
On June 22, 2011, Defendants filed a Motion for Summary Judgment, which
will be ready for decision in fourteen days.1 (Docs. 152, 170, 180). On September 2,
2011, Plaintiff filed his second Motion for Summary Judgment, which seeks
summary judgment as to Count III of his Amended Complaint. (Doc. 187).
Defendants have moved for an extension of the filing deadlines for the Response
and Reply concerning Plaintiff’s Motion for Summary Judgment. They would like
the Response deadline to be extended to 21 days after their Motion for Summary
Judgment is ruled upon, arguing that, if their Motion is granted, the entire case will
be disposed of and the Court and parties may avoid unnecessary effort in dealing
with Plaintiff’s Motion for Summary Judgment. (Doc. 189). Plaintiff has responded
in opposition to this request, arguing that such extension will only serve to delay
disposition of this case and that the Court can most efficiently deal with the two
Motions for Summary Judgment together. (Doc. 191). The Court agrees with
Plaintiff’s position.
First, this Court’s Local Rules state that “[m]otions for extension of time to
file…a response to a reply [to a Motion for Summary Judgment] will not be looked
upon with favor.” Local Rule 7.1(D). Though the Court might be likely to grant an
extension that was agreed-to by both parties, an extension that is opposed is indeed
looked at unfavorably. Further, the Court notes that it quite often deals with crossmotions for Summary Judgment in the same Opinion & Order, and finds that this
As discussed below, in this Order & Opinion the Court grants Plaintiff leave
to file a limited surreply within fourteen days.
1

2

typically is more efficient than would be handling them separately.2 Finally, it is
possible that the Court would, in ruling on Defendants’ Motion for Summary
Judgment, deny summary judgment or grant summary judgment as to only some of
the issues in the case, and the case would go forward. In that event, it would defeat
the goal of a timely resolution to have allowed Defendants’ requested extension.
Therefore, Defendants’ request is denied. As per the parties’ agreement that the
Court allow Defendants fourteen days from the date of its ruling on the Motion for
Extension, Defendants’ Response is now due fourteen days from the date of this
Order. If Defendant Access2Go will file a Response to Plaintiff’s Motion for
Summary Judgment, its Response will be due on the same date. As usual, Plaintiff’s
Reply will be due fourteen days after he is served with Defendants’ Response.
In addition, Plaintiff has moved for the Court to strike portions of
Defendants’ Reply in support of their Motion for Summary Judgment, arguing that
the particular portions present new evidence and legal argument to which he has
not, and will not, in the ordinary course of a Motion for Summary Judgment, have
an opportunity to reply. (Doc. 182). Moreover, Plaintiff claims that Defendants’ new
evidence misrepresents his deposition testimony by offering only select pages from
it, and asks the Court to strike the “new” argument.3 In the alternative, Plaintiff

The Court of course notes the necessity of treating the motions separately
insofar as the parties may rely on conflicting legal theories in their briefs.

2

Specifically, Plaintiff states that Defendants’ Reply implies that he
voluntarily relinquished his position in the company, and that his doing so gave
Defendants the right to monitor his communications. Plaintiff asserts that his
deposition testimony was taken out of context to incorrectly imply that he did
voluntarily relinquish his position in the company. Further, Plaintiff argues that
Defendants did not, until their Reply brief, cite his supposedly-voluntary
3

3

requests the opportunity to file a surreply addressing Defendants’ new evidence and
argument. As Defendants note in their Response to Plaintiff’s Motion, Motions to
Strike are generally disfavored in the summary judgment context. (Doc. 188 at 2).
Defendants, however, offer no real argument as to why Plaintiff should not be
allowed to present his own take on the evidence and argument offered in their
Reply, except to say that “any evidence offered in rebuttal by Shefts would be
contrary to the evidentiary rule that a party cannot create an issue of material fact
by rebutting his own prior sworn testimony.” (Doc. 188 at 5). While Defendants
accurately state the rule, Plaintiff’s instant Motion contemplates providing context
to his testimony from the deposition; he proposes to rebut Defendants’
interpretation and presentation of his testimony, not the testimony itself. (Doc. 182
at 3).
IT IS THEREFORE ORDERED THAT Defendants Petrakis, Morgan, and
Huffman’s Motion to Extend Filing Deadlines on Plaintiff’s Second Motion for
Summary Judgment (Doc. 189) is DENIED. All Responses to Plaintiff’s Motion for
Summary Judgment are now due fourteen days from the date of this Order.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Section II and
Section IV(A) of Defendants’ Reply to Shefts’ Response Opposing Motion for
Summary Judgment, or, In the Alternative, Fix a Date for Shefts to File a SurReply in Support of His Response Opposing Motion for Summary Judgment (Doc.
182) is GRANTED IN PART and DENIED IN PART. Plaintiff may file a surreply as
described in this Order.
relinquishment of his position and use it as the basis for an additional legal support
for their monitoring of his communications.
4

Entered this 19th day of September, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

5