Woodward v. Algie

LOYD WOODWARD, Plaintiff, v. DAVID ALGIE and LINDA ALGIE, Defendants.

CAUSE NO. 1:13-cv-1435-DKL-RLY

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION

March 29, 2016

ENTRY

Plaintiff's Motion for Summary Judgment [doc. 149]

Plaintiff's Motion for Leave To Supplement Exhibit "NN" to Motion for Summary Judgment [doc. 197]

Plaintiff Loyd Woodward moves for summary judgment on counts 1 (breach of contract), 2 (breach of fiduciary duties and usurpation of business opportunities), and 3 (tortious interference) of his Verified Amended Complaint for Damages and Injunctive and Other Equitable Relief [doc. 118] ("Complaint"),¹ and on defendants David and Linda Algie's sole remaining counterclaim, for promissory estoppel, Counter Complaint [doc. 122] ("Counter Complaint"), § IV "First Cause of Action."² In addition to opposing Mr. Woodward's motion for summary judgment, the Algies ask that summary judgment begranted in their favor on those claims and on the rest of Mr. Woodward's claims. Defendant David and Linda Algie's Supplemental Memorandum of Law in Support of Their Opposition to Plaintiff's Motion for Summary Judgment [doc. 202] ("Algies Supp. Brief"), at 2.

The Algies filed their response to Mr. Woodard's motion while proceeding pro se. Defendants Counter Motion to Plaintiffs Summary Judgment Motion [doc. 162] ("Response").³ After Mr. Woodard filed his reply, Reply Brief in Support Plaintiff's Motion for Summary Judgment etc. [doc. 170] ("Reply"), and the Algies filed their surreply, Defendants Response to Plaintiffs MSJ Reply and Response Brief [doc. 174] ("Surreply") (Nov. 9, 2015), the Court invited and granted the Algies' request for recruitment of counsel, Entry Regarding request for counsel [doc. 176] (Nov. 23, 2015); Entry [doc. 180] (Dec. 16, 2015), and recruited pro bono counsel for them, Entry Requesting Appearance of Civil Trial Assistance Panel Counsel [doc. 181] (Jan. 20, 2016); [docs. 182, 183]. The Court scheduled oral argument on Mr. Woodward's motion and notified the parties that the hearing was limited to argument; no new evidence was anticipated. Minute Entry, Telephonic Pretrial Conference, February 2, 2016 [doc. 187]; Entry [doc. 192] (Feb. 22, 2016). Oral argument was heard from Mr. Woodward's counsel and recruited pro bono counsel for the Algies on February 23, 2016. Entry from the Oral Argument [doc. 198]. The parties filed post-hearing supplemental briefs. Woodward's Post-hearing Brief in Support Plaintiff's Motion for Summary Judgment[doc. 203] ("Woodward Supp. Brief"); Algies Supp. Brief. On these submissions and presentations, the matter is ready for decision.

Evidentiary record

Both sides ask that certain exhibits not be considered. Mr. Woodward objects to the Algies' Response Exhibits 11 through 21 [docs. 162-11 through 162-21], which are copies of e-mails and one letter, Exhibit 15 [doc. 162-15], from individuals attesting to the Algies' character and Mr. Algie's skills. Because none of these statements constitute sworn affidavits, conform to the requirements for declarations provided in 28 U.S.C. § 1746, or otherwise indicate that they can be presented in admissible form, they are not qualified evidence and are not considered on the present motion. Widmar v. Sun Chemical Corp., 772 F.3d 457, 460 (7th Cir. 2014), cert. denied, 135 S.Ct. 2892 (2015); S.D. Ind. L.R. 56-1(e) ("A party must support each fact the party asserts in a brief with a citation to a discovery response, a deposition, an affidavit, or other admissible evidence."); Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 434-35 (7th Cir. 2013); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009); Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir.2006) ("To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence."). At oral argument, through a demonstrative exhibit, the Algies conceded that these exhibits are not admissible. At any rate, the Response does not refer to any of these exhibits.

Mr. Woodward also argues that the Response's Exhibits 2 through 5, 7, 8, and 10 [docs. 162-3 through 162-6, 162-8, 162-9, and 162-10] are inadmissible. Exhibits 2 through 5, and 10 appear to be copies of e-mails, but they lack authenticating affidavits or declarations, which renders them inadmissible. Exhibits 7 and 8 purport to be the first pages (only) of itemizations of payments made by Mr. Woodward to support the LP1 project (for "Product Development" and "Parts and Fuel", respectively) and they correspond to Mr. Woodward's Exhibits N [doc. 149-14] and O [doc. 149-15] that are attached to his present motion, Plaintiff's Motion for Summary Judgment [doc. 149] ("Motion"). Because neither Mr. Woodward nor the Algies support the admissibility of these exhibits with authenticating affidavits or declarations, they are inadmissible.

Finally, Mr. Woodward moves to strike the Response's Exhibit 22 [doc. 162-22], a fifteen-page narration by Mr. Algie of facts, conclusions, assumptions, and suspicions related to this case, titled "The Woodward Plan." Although the Algies have filed this narration a few times in this case, including as an attachment to their since-stricken Amended Counter Complaint [doc. 148-5], it bears no signatures, date, or any other indicia of an affidavit or declaration. Thus, it does not constitute evidence that may be considered on the present motion.

The Algies argue that several of Mr. Woodward's exhibits are inadmissible. They specifically argued against the admissibility of Exhibits AA, BB, CC, HH, II, JJ, and NN. Exhibit AA [doc. 149-27] appears to be a copy of an e-mail chain. Exhibit BB [doc. 149-28] is a list titled "PRE-SALE CUSTOMERS." Exhibit CC is a form agreement titled"ALGIE COMPOSITE AIRCRAFT" / "WAIVER AND LIMITED WARRANTY AGREEMENT." Exhibit Exhibits HH and II [docs. 149-34, 149-35] appear to be copies of two pages of advertisements from a trade publication that include advertisements or articles regarding the LP1. None of these documents is accompanied by an authenticating or attesting affidavit or declaration and, therefore, do not constitute admissible evidence.

Exhibit JJ [doc. 149-36] appears to be an image of a webpage from the Marion County Assessors office showing an assessment of the Algies' residence. The only possible authentication of this document appears to be in Mr. Woodward's third "affidavit," Exhibit NN [doc. 149-40], ¶ 16. However, because Exhibit NN is excluded for the reasons discussed below, Exhibit JJ is not authenticated and, thus, does not constitute admissible evidence. (The exhibit might, in fact, be a mistake because the index of exhibits in the Motion describes it as "LP1 FAA Registration." Motion, at 2.)

In a demonstrative exhibit used at oral argument, the Algies also objected to Exhibits D through I, K through U, X, DD, FF, GG, KK through NN, and QQ.

Exhibits D through I [docs. 149-4 through 149-9] purport to be declarations of six individuals and are signed and dated and bear the location where signed. However, the documents are not affidavits, because they do not show that the individuals "[swore] to the content in the presence of someone authorized to administer oaths," Owens v. Hinsley, 635 F.3d 950, 954-44 (7th Cir. 2011), and they are not declarations because they fail to state that they are "true and correct" and made "under penalty of perjury." 28 U.S.C. § 1746.

Exhibits K through U [docs. 149-11 through 149-21] purport to be a series of lists of expenses paid by Mr. Woodward to support the LP1 project. Exhibit DD appears to be a copy of a "LP1 Kit Deposit Refund" document. Not being authenticated or attested by affidavit or declaration, they are not admissible evidence.

Exhibit X [doc. 149-24] purports to be an image of a page on a fundraising website, titled "Woodward lawsuit defense fund." Exhibit FF [doc. 149-32] appears to be copies of Indiana Code chapter 34-25-2, pertaining to writs of attachments. Exhibit GG [doc. 149-33] purports to be an image of the result of a business-name search on the Indiana Secretary of State's website. Exhibit KK [doc. 160] appears to be images of "David Algie's Page" on the "PatriotAction Network" website. Exhibit LL [doc. 160-1] purports to be a list of the values of assets used in the LP1 project. Exhibit MM [doc. 149-39] purports to be a copy of a rule promulgated by Indiana's Department of Financial Institutions that establishes execution exemption limits. Because none of these exhibits are authenticated or attested by affidavits or declarations, they are not admissible evidence.

Mr. Woodward submitted Exhibit QQ [docs. 169-1, 170-1] with his Reply. It consists of the affidavit and report of Ronald D. McElroy, who assessed the LP1 for potential flight certification and airworthiness on August 22, 2012, on request of Mr. Woodward. The affidavit, dated October 28, 2015, was prepared for the reply. His "Test Pilot Report" bears the date that the test was performed and, without any showing to the contrary, the Court assumed the Mr. McElroy produced his report at or soon after that date as well. In a demonstrative exhibit at the oral argument, the Algies objected that thisexhibit was an untimely expert report because it was tendered after the expert-disclosure deadline. The objection was not argued at the hearing or in the Algie's Supp. Brief.

Mr. Woodward's deadline for disclosing his experts and serving their reports was June 1, 2015, Amended Case Management Plan (July 14, 2015) [doc. 144], § III.F., unless he intended to use that expert testimony in connection with his summary-judgment motion, in which case his deadline was ninety days before the dispositive-motions deadline of August 17, 2015, i.e., on or about May 17, 2015, id., § III.G.; Order [doc. 146]. The Algies did not state when, or if, Mr. Woodward made his ...