Perrywatson v. United Airlines et al
Filing
129
MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 8/2/2012:Mailed notice(jms, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SLIMMARIE PERRYWATSON,
Plaintiff,
v.
ASSOCIATION OF FLIGHT
ATTENDANTS-CWA, AFL-CIO,
Defendant.
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No. 10 C 639
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
The defendant has moved to strike what it terms “objectionable statements” from (1)
Plaintiff’s Response to Defendant’s Statement of Material Facts, (2) Plaintiff’s entire Statement of
Additional Material Facts, (3) Plaintiff’s unauthenticated exhibit, which is attached to Plaintiff’s
Statement of Additional Material Facts (labeled by Plaintiff as “A-10”), (4) Plaintiff’s Memorandum
of Law In Opposition to Defendant’s Motion for Summary Judgment, or portions thereof, and (5)
any other sections that discuss facts without citation to the record. The motion is denied except that
portion which objects to the plaintiff having filed a 20-page brief without permission of court in
violation of Local Rule 7.1, which limits the length of a brief in support of any motion to 15 pages
unless allowed by the court.
In some three dozen decisions beginning with Loeffel Steel Products, Inc. v. Delta Brands,
Inc. 379 F.Supp.2d 968, 971 (N.D.Ill. 2005) and most recently in McNeal v. Bruno, 2012 WL
1414865, 1 (N.D.Ill. 2012), this court has discussed at length the requirements of Rule 56, Federal
Rules of Civil Procedure, and Local Rule 56.1 and the consequences of non-compliance with their
strictures.1 Those cases, as well as those by judges in this district and elsewhere, generally make
clear that motions to strike portions of summary judgment submissions alleged to be non-compliant
with the Rules’ requirements are not favored. This is how Loeffel Steel put it:
Motions to strike are disfavored, because they potentially serve only to create delay.
Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th
Cir.1989); Spearman Industries Inc. v. St. Paul Fire and Marine Ins. Co., 109
F.Supp.2d 905, 907 (N.D.Ill.2000). There may be occasions where a motion to strike
might remove unnecessary clutter from a case, but this is certainly not one of them.
LR 56.1 governs the filing of statements of facts and responses thereto in summary
judgment proceedings. The rule includes its own enforcement provisions, making
motions to strike LR 56.1 statements or responses superfluous at best. Sphere Drake
Ins. Ltd. v. All American Life Ins. Co., 300 F.Supp.2d 606, 613 (N.D.Ill.2003);
Lenoir v. Combined Ins. Co. of America, No. 01 C 5267, 2002 WL 1949735, *6
(N.D.Ill. Aug. 23, 2002). As such, DBI's motion to strike is denied. Instead, I shall
follow the rule in assessing the parties' statements of fact and responses thereto.
Loeffel Steel Products, Inc,. 379 F.Supp.2d at 971.
Thus, while the motion to strike is denied, that does not mean that the defendant’s arguments
and observations are not correct. They may well be and will be effectively considered in assessing
the adequacy of the plaintiff’s submission. It is merely to say that there is no need to have separate,
satellite litigation prior to the substantive consideration of that submission. Nor does denial of the
motion mean that the court is unaware that the Seventh Circuit, with undeviating regularity, upholds
strict enforcement by district judges of Local Rule 56.1. (Memorandum at 2). Indeed, this court’s
summary judgment opinions have not only reiterated that proposition but have, in fact, insisted on
strict compliance with the applicable Rules. But strict enforcement does not require or allow
motions to strike the submission claimed to be violative of the Rules.2
1
None of these cases are cited in the plaintiff’s motion. The motion’s reference to “this Court”in
connection with cases cited in the motion is a reference to the Northern District of Illinois. As used herein,
the reference to “this court” is obviously used in a more limited sense.
2
Malec v. Sanford, 191 F.R.D. 581 (N.D.Ill. 2000), on which the plaintiff relies, does not suggest
(continued...)
The defendant has also moved to strike the plaintiff’s submission because it cites to several
pre-January 1, 2007 unpublished opinions, which it contends violates Rule 32.1 of the Federal Rules
of Appellate Procedure – an infraction which the plaintiff says requires that the opinion not be
considered. Several Circuit Courts of Appeals, including the Seventh Circuit, prior to January 1,
2007, had promulgated rules that sought to reduce the proliferation of published opinions and the
citation to them. The debate over the use that could be made of unpublished opinions goes back a
number of years and had sharply divided the federal judiciary. The history of the no-citation rule
and its abrogation in 2007 by Rule 32.1 of the Federal Rules of Appellate Procedure is discussed in
Jeffrey Cole, The Demise of the No-Citation Rules: The Supreme Court Approves Federal Rule of
Appellate Procedure 32.1, The Circuit Rider, 17 (May 2006).
On April 12, 2006, the Supreme Court approved Federal Rule of Appellate Procedure 32.1,
which provides that a court cannot prohibit or restrict the citation of federal judicial opinions, orders,
judgments, or other written dispositions that have been designated as “unpublished,” “not for
publication,” “non-precedential,” “not precedent” or the like; and issued on or after January 1, 2007.
The rule is limited only to federal decisions. A party citing such an opinion that is not available in
a publicly accessible electronic database must file and serve a copy with the brief in which it is cited.
While it is true that Dupree v. Greyhound Lines, Inc., 540 F.Supp.2d 946, 951 n.2 (N.D.Ill.
2008) chose not to consider an unpublished pre-2007 opinion, it does not control here for several
reasons. First, the decision of one district judge is not binding on another. Flying J, Inc. v. Van
Hollen, 578 F.3d 569, 573 (7th Cir. 2009); LM Ins. Corp. v. Spaulding Enter. Inc., 533 F.3d 542, 553
2
(...continued)
that motions to strike are an appropriate mechanism to test the sufficiency of a summary judgment
submission. It simply observed that certain deviations from Rule 56 and Local Rule 56.1 invite motions to
strike, which, the court said, are a waste of time. 191 F.R.D. at 583.
(7th Cir.2008). Second, the district court’s decision was plainly an exercise in discretion, not a bow
to the command of an inflexible rule. It must be remembered that two judges on the same set of
facts can arrive at different decisions, and both can be an appropriate exercise of discretion. United
States. v. Banks, 546 F.3d 507, 508 (7th Cir. 2008). Third, the argument for non-consideration is
simply mistaken as the Seventh Circuit made clear in Payne v. Pauley, 337 F.3d 767, 780 (7th Cir.
2003):
At oral argument, counsel for Payne asked us to clarify the rule in this Circuit for
citing unpublished district court opinions. Although, as Payne's counsel noted, our
opinions have been less than consistent regarding this issue, our Circuit Rule has
remained consistent and clear and states as follows: “[e]xcept to the purposes set
forth in Circuit Rule 53(b)(2)(iv), no unpublished opinion or order of any court may
be cited in the Seventh Circuit if citation is prohibited in the rendering court.” Circuit
Rule 53(e). As there is no rule in the Northern District of Illinois barring citations to
unpublished opinions (see Kingvision Pay Per View, Ltd. v. Boom Town Saloon, Inc.,
98 F.Supp.2d 958, 959, n. 1 (N.D.Ill.2000)), nothing would prohibit a litigant from
citing these unpublished district court opinions in this Court.3
Finally, the motion contends that certain decisions cited in the summary judgment
submission should be ignored because copies were not appended to the submission. District judges
have discretion to ignore a particular application of a Local Rule. Little v. Cox's Supermarkets, 71
F.3d 637, 641 (7th Cir.1995)(“decision whether to apply [a local] rule strictly or to overlook any
transgression is one left to the district court's discretion”); In re Sulfuric Acid Antitrust Litigation,
231 F.R.D. 351, 356 (N.D.Ill. 2005)(same)(collecting cases). I decline to ignore those cases.
3
Payne was obviously not brought to the court’s attention in Dupree.
However, if the cases are not available on Westlaw and the plaintiff has not submitted a copy, it will
not be considered simply because I do not have access to it.
DATE: 8/2/12
ENTERED:_____________________________________
UNITED STATES MAGISTRATE JUDGE
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