Hanania v. Loren-Maltese

319 F.Supp.2d 814

Ray HANANIA and Alison Resnick, Plaintiffs, v. Betty LOREN-MALTESE, et al., Defendants.

No. 98 C 5232.

United States District Court, N.D. Illinois, Eastern Division.

March 16, 2004.

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Jonathan I. Loevy, Arthur R. Loevy, Loevy & Loevy, Chicago, IL, for plaintiffs.

Terence Patrick Gillespie, Genson and Gillespie, Chicago, IL, Michael Joseph Kralovec, Joseph R. Lemersal, Sara J. Rowden, Nash, Lalich & Kralovec, Chicago IL, Sally H. Saltzberg, P. Michael Loftus, Loftus & Saltzberg, P.C., Chicago, IL, Edward R. Vrdolyak, Attorney at Law, Michael Andrew Ficaro, Ross Edward Kimbarovsky, Ungaretti & Harris, Chicago, IL, Dennis E. Both, Cicero, IL, for defendants.

MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

Plaintiffs Alison Resnick and Ray Hanania, former employees of the Town of Cicero (Cicero), brought this action against Cicero's former president, Betty Loren-Maltese; members of Cicero's Board of Trustees (Trustees); Cicero's newsletter, the Cicero Town News; and the Cicero Town Republican Organization and its newsletter, the Cicero Town Observer. Plaintiffs also filed suit against their former attorneys, Jerome Torshen and Torshen, Spreyer, Garmisa & Slobig, Ltd., who were previously dismissed from the lawsuit. See Hanania v. Loren-Maltese, 56 F.Supp.2d 1010 (N.D.Ill.1999) aff. 212 F.3d 353 (7^th Cir.2000). Though several counts of the complaint have been dismissed, numerous counts still remain. In count I plaintiffs allege that Cicero, Loren-Maltese, and the Trustees retaliated against them for exercising their rights of free speech, in violation of 42 U.S.C. § 1983. Counts II and III are conspiracy claims against all defendants. Plaintiffs allege intentional infliction of emotional distress against Cicero and Loren-Maltese in count V and defamation against all defendants, except Cicero, in count VIII. Finally, in count IX plaintiffs seek to impose indemnification, alleging that Cicero must pay any damages for which its employees are liable.

Defendants move for summary judgment on all counts pursuant to Federal Rule of Civil Procedure 56. In addition, plaintiffs file a partial summary judgment motion for defendants' advice-of-counsel defense. Before turning to the parties' arguments on those motions, we must address defendants' motion to strike certain facts from plaintiffs' Rule 56.1 statement of additional facts.

Motion to Strike

Plaintiffs filed a 176-paragraph statement of additional facts, from which defendants want to strike 79 paragraphs. As several judges in this district have pointed out, motions to strike, while permissible, are often unnecessary because a party can contest a fact's validity in his response to the statement. See, e.g., Fenje v. Feld, 301 F.Supp.2d 781, 789 (N.D.Ill.2003)(finding motions to strike unnecessary because a statement will be disregarded to the extent it is not supported); Newsome v. James, 2000 WL 528475 at *3 (N.D.Ill.2000). However, as the defendants have filed the motion, the court will rule on it. Defendants claim that a large number of these paragraphs are merely argument disguised as facts. They cite paragraph 17 as an example. It states, "In the face of growing pressure, Maltese announced on or about November 8, 1996 that she planned to hire William Kunkle to investigate the Specialty Risk overpayments." While plaintiffs' commentary, "In the face of growing pressure," is unsupported by the citations provided, Maltese's employment of Kunkle to investigate the Specialty Risk affair is a supported fact. Plaintiffs should take better care to avoid argument in their statement of facts — it only frustrates a court's identification of the uncontested facts. However, the court will not strike paragraphs from plaintiffs' statement of additional facts for containing argument. Rather, the court will disregard any statements that are merely unsupported argument, when reaching its decision on the motions for summary judgment.

Defendants also argue that numerous paragraphs are not supported by the record and others are merely speculation and conjecture. The majority of these paragraphs are supported by plaintiffs' citations; however, paragraphs 14, 138, 163, 164, and part of 13 are not. The article from the October 25, 1996, edition of the Chicago Sun-Times does not mention John La Giglio, nor that Loren-Maltese's $300,000 investment was never repaid, as paragraph 13 states. The article also fails to support paragraph 14. The memo and affidavit cited in paragraph 138 do not establish that Cicero attorney Merrick Rayle was conducting an investigation of misconduct by Hanania. In paragraph 163 plaintiffs state that defendants conspired with El Dia; however, neither citation, an El Dia newspaper article and Cicero's response to paragraph 3 of the first set of interrogatories, supports this assertion. Nor is paragraph 164's statement, "Maltese and the Board are the municipal policymakers for with [sic] final policymaking authority for the Town of Cicero," confirmed by its citations.

Defendants contend that plaintiffs fail to lay a proper foundation for their opinion testimony in paragraphs 126, 147, 148, and 151. Resnick's deposition testimony provides proper support for paragraph 126's list of physical ailments that she experienced after defendants' alleged retaliation. Given plaintiffs' experience working for the Town of Cicero, and their exposure to Loren-Maltese, their opinions regarding her influence and operations support paragraphs 147, 148, and 151.

In their final argument to strike, defendants assert that paragraphs 33, 138, 157 and 158 are based on inadmissible evidence. This argument is moot because the court struck paragraph 138 for lack of support in the record and it does not rely on paragraphs 33, 157 or 158 to reach its decision on the motions for summary judgment.

Defendants' motion to strike paragraphs 14, 138, 163, 164, and references in paragraph 13 that are not specifically contained in the October 25, 1996, Chicago Sun-Times article, is granted, but their motion to strike all other paragraphs is denied.

BACKGROUND

Once again we summarize the history of this case as told through the hundreds of pages of pleadings, memorandums, statements of fact and depositions. Defendant Betty Loren-Maltese was Cicero's town president from January 1993 until August 2002, when she forfeited her office following a conviction for her involvement in an insurance fraud scheme. Both Alison Resnick and her husband, Ray Hanania, worked for the Town of Cicero during Loren-Maltese's tenure. Hanania was a political and media consultant for Cicero from 1993 until the fall of 1996, while Resnick was Cicero's town collector from February 1996 until December 1997.

In October 1996, reporters contacted Hanania regarding subpoenas that were issued to Cicero. Hanania called Loren-Maltese to discuss the issue, and they agreed to meet. Though the parties disagree over the content of their conversation, they both admit that by the end of the conversation Loren-Maltese had fired Hanania.

On October 25, 1996, the Chicago Sun-Times reported that the Federal Bureau of Investigations was looking into alleged wrongdoing by Loren-Maltese in connection with Specialty Risk, an insurance carrier for Cicero. At a Cicero Board meeting four days later, Resnick asked Loren-Maltese to explain her involvement with the insurance company; Loren-Maltese declined to do so. Resnick asserts that she and another trustee introduced a resolution before the Board to request an investigation into the matter by the state's attorney. Loren-Maltese, who allegedly opposed the resolution, decided to hire a private investigator to look into the Specialty Risk affair. Resnick, along with others in the Cicero government, publicly criticized this decision.

Resnick, who was appointed town collector in February 1996, to fill a vacancy, planned to run for the office on Loren-Maltese's ticket in the February 1997 Republican primary. However, shortly after Resnick spoke out about Specialty Risk, Loren-Maltese allegedly dropped her from the Republican slate. Resnick, and two other candidates who spoke out against Loren-Maltese, formed an opposition slate: the Restore Honesty in Cicero party. After a contentious campaign during which Resnick and Hanania criticized Loren-Maltese's policies and accused her of corruption, Resnick lost the Republican primary. Despite her loss, Resnick's term as town collector continued until December 1997.

Beginning in December 1996, the Board of Trustees voted to change the responsibilities of the town collector's office. They eliminated the town collector's authority over business licenses and pet licenses, and transferred employees in the office to other departments. In May 1997, the town collector's office was moved to a smaller area and Resnick was allegedly denied access to her old office files and equipment. Soon thereafter, Cicero's director of human resources, Jim Terracino, terminated Resnick's two remaining employees.

In response to these actions Resnick filed a complaint against Loren-Maltese, Terracino, and the Town of Cicero, seeking to enjoin them from interfering with her authority as town collector for the remainder of her term. On June 4, 1997, Judge Lester Foreman, of the Circuit Court of Cook County, granted Resnick a temporary restraining order, restraining Loren-Maltese from "taking any action which would prevent or impede the Town Collector for the Town of Cicero from performing the duly designated duties and activities of that office," and reinstating Resnick's recently-fired employees. Following a preliminary injunction hearing, Judge Foreman extended the restraining order and set an expedited schedule for discovery. On June 10, 1997, the Board passed several ordinances directing that certain payments be delivered to the town treasurer rather than the town...