The opinion of the court was delivered by: Judge Gregory L. Frost
This matter comes before the Court for consideration of a motion for summary judgment (Doc. # 114) filed by Defendant City of St. Clairsville ("Defendant"), a memorandum in opposition (Doc. # 125) filed by Plaintiff Samuel Harris ("Plaintiff"), and a reply memorandum (Doc. # 135) filed by Defendant. Also before the Court is a motion for summary judgment (Doc. # 120) filed by Plaintiff, and a memorandum in opposition filed by Defendant. (Doc. # 128.)
Defendant is a municipal corporation located in Belmont County, Ohio and is the exclusive provider of electric, water, and sewage services to the owners and occupants of property which is located within the city limits. It is also a political subdivision of the state of Ohio. Plaintiff was the owner of two separate parcels of real property: the real estate adjacent to Interstate 70 ("Interstate Property"), which originally was located outside St. Clairsville; and the Terrace Mobile Home Park ("Terrace Property"), which is located within St. Clairsville's limits. Plaintiff's Interstate Property (along with two adjacent parcels) was annexed from Richland Township to St. Clairsville in 2002.
Plaintiff alleges that all defendants named in the Third Amended Complaint, as a group, engaged in a scheme for the purpose of forcing Plaintiff to part with a portion of Plaintiff's Interstate Property. Plaintiff further argues that defendants took two approaches in furtherance of the alleged conspiracy to pressure Plaintiff to sell the Interstate Property. First, Plaintiff alleges that defendants generated false and overstated water and electric bills for utility services at the Terrace Property. Plaintiff argues that defendants then enforced these inaccurate bills by improperly placing liens on the Terrace Property and directly interfering with the relationships between Plaintiff and the tenants of the Terrace Property. Second, Plaintiff alleges that defendants caused the wrongful annexation of Plaintiff's Interstate Property. Plaintiff states that he first discovered in late 2002 that the Interstate Property had been annexed when he learned that St. Clairsville was convening a planning commission meeting to consider zoning of the Interstate Property. Plaintiff attended the zoning meeting in February 2003 where he informed city council that he never signed the petition or agreed to annex his property. Subsequently, Plaintiff alleged that Defendant annexed Plaintiff's Interstate Property in violation of multiple substantive and procedural requirements of Ohio's annexation law.
In connection with the allegations, Plaintiff seeks compensatory damages, punitive damages, and a court order "de-annexing" his Interstate Property under the following legal theories of relief: tortious interference with contract (Count One); illegal and improper annexation under Ohio law (Count Two); a "taking" of his property in violation of the Fifth and Fourteenth Amendment to the U.S. Constitution (Counts Three and Four); civil conspiracy (Count 5); and 42 U.S.C. § 1983 (Count 6).*fn1
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The initial burden of showing the absence of any such "genuine issue" rests with the moving party: it must inform the district court of the basis for its motion, and identify those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," which it believes demonstrates the absence of a genuine issue of material fact. Fed. R. Civ P. 56(e).
The nonmoving party's burden at the summary judgment stage is as follows:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed. R. Civ. P. 56(e).
In viewing the evidence, the Court must draw all reasonable inferences in favor of the nonmoving party who must set forth specific facts showing that there is a genuine issue of material fact for trial. Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003)(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52).
Here, the Court must therefore grant a motion for summary judgment if Plaintiff, the nonmoving party who has the burden of proof at trial, fails to make a showing sufficient to establish the existence of an element that is essential to his case. See Muncie, 328 F.3d at 873 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). However, in ruling on a motion for summary judgment, "a district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Plaintiff's allegations are ostensibly supported by 44 exhibits. (Doc. # 130.) Defendant has objected to their submission on various grounds. Thus, this Court must consider the propriety of each of Plaintiff's exhibits.
First, Defendant objects to Exhibits 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 15, 16, 17, 18, 19, 20, 23, 24, 25, 27, 36, and 39 submitted by Plaintiff. (Doc. # 135.) Defendant argues that these documents "are not pleadings, depositions, answers to interrogatories, admissions or exhibits to sworn affidavits that been authenticated." Id. The Court finds Defendant's first objection well-taken.
Specifically, Exhibits 1, 2, 3, 4, 5, 12, and 13 appear to be unauthenticated, self-generated billing records. Exhibits 7, 9, 10, 20, and 24 are copies of unauthenticated letters and correspondence. Exhibit 8 is an unauthenticated photocopy of a cashier's check. Exhibit 15 appears to be an unsigned portion of a settlement statement. Exhibit 16 is copy of a complaint filed against Plaintiff by St. Clairsville Municipal Utilities. Exhibit 17 is a copy of an order to place a lien on Plaintiff's Terrace Property for unpaid electric bills. Exhibit 18 appear to be "sample accounts." Exhibits 19 and 23 are copies of work order requests. Exhibit 25 appears to be a portion of a St. Clairsville Police Department work log. Exhibit 36 is a power of attorney. Exhibit 39 is a fax cover sheet.
Although a party must produce evidence in support of its opposition to a motion for summary judgment, not all types of evidence are permissible. McQuain v. Ebner Furnaces, Inc., 55 F. Supp. 2d 763, 769-70 (N.D. Ohio 1999). For instance, unsupported and essentially unexplained statements are insufficient to survive summary judgment. See Simpson v. Midland-Ross Corp., 823 F.2d 937, 941 (6th Cir. 1987) (stating "mere conclusory allegations do not suffice to prove intentional discrimination based on age"). Additionally, the Sixth Circuit has held that "it is well settled that only admissible evidence may be considered by the trial court in ruling on motion for summary judgment." Wiley v. United States, 20 F.3d 222, 225-226 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Admissible evidence is defined as "evidence that is relevant and of such a character . . . that the court should receive it." (Black's Law Dictionary 235 (pocket ed. 1996)). Federal Rule of Evidence 401 defines relevant evidence as "evidence having any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Authentication is a special aspect of relevancy concerned with establishing the genuineness of evidence and is a condition precedent to admissibility. Fed. R. Evid. 901(a) and advisory committee's notes.
Evidence that is neither authenticated nor admissible "may be considered by the district court unless the opposing party affirmatively raises the issue of the defect. The burden is on the opposing party to object to the improper evidence; failure to object constitutes a waiver." McQuain, 55 F. Supp. 2d at 770. Defendant has objected to Plaintiff's proffered evidence as noted above. This Court finds that Plaintiff's exhibits 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 15, 16, 17, 18, 19, 20, 23, 24, 25, 27 are all unauthenticated, and that exhibits 36 and 39 have not been properly identified. Plaintiff should have introduced these exhibits into the record through affidavits or exhibits to depositions rather than submit them improperly by filing them as a collection of papers with the Court without authentication. Therefore, these exhibits are hereby stricken.*fn2 Fed R. Civ. P. 56(e); see Baldwin v. Tessier, No. Civ. A. 05-10898-DPW, 2006 WL 753244, at *1 (D. Mass Mar. 22, 2006) (stating that defendant should have introduced their exhibits into the record through affidavits to satisfy Rule 56) (citing Cergueira v. Cergueira, 828 F.2d 863, 865 (1st Cir. 1987)).
Next, Defendant objects to Exhibits 28, 29 and 31, purportedly the affidavits of George Novotny, Jim Howard, and William E. Rice, respectively. (Doc. # 135.) Defendant argues that these affidavits should be stricken because "they are undated and none of these individuals were included in Plaintiff's Rule 26(a) initial disclosures or otherwise disclosed as witnesses by Plaintiff." (Doc. # 135.)
Fed R. Civ P. 26(a)(3) states, in relevant part, that: a party must provide to other parties and promptly file with the court the following information regarding the evidence that it may present at trial other than solely for impeachment: (A) the name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises[.] Id.
This Court finds that none of the individuals named in Exhibits 28, 29, 31*fn3 were included in Plaintiff's Rule 26(a) initial disclosures or otherwise disclosed as witnesses by Plaintiff. Moreover, Plaintiff breached his duty to supplement his 26(a) disclosures when he decided to add a witness that he did not initially disclose. Fed R. Civ P. 26(a)(3); see Wilson v. AM General Corp., 167 F.3d 1114, 1122 (7th Cir. 1999). Therefore, this Court strikes Exhibits 28, 29, and 31 from the record.
Lastly, Defendant objects to and moves to strike Exhibits 11, 14, 22, 26, 32, 33, 34, 35, 37, 38, 40 and 41 (Doc. # 135), which have been identified as portions of deposition transcripts. Defendant contends that these exhibits should be stricken because none of these deposition transcript portions are accompanied by a court reporter's certification. This Court cannot consider transcripts filed with this Court that fail to qualify as proper summary judgment evidence under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 30(f)(1); Soliday v. Miami County, Ohio, No. C-3-91-153, 1993 WL 1377511, at *5 n.4 (S.D. Ohio Nov. 22, 1993) (stating that "the Court cannot consider" deposition testimony referenced in summary judgment reply memorandum but not filed with court); Moore v. Florida Bank of Commerce, 654 F. Supp. 38, 41 n.2 (S.D. Ohio 1986) (unauthenticated deposition not filed with court is not proper material under Rule 56); Podlesnick v. Airborne Express, Inc., 550 F. Supp. 906, 910 (S.D. Ohio 1982) (depositions not filed with court but referred to in summary judgment memoranda were not considered in court's decision); see also Orr v. Bank of America, NT & SA, 285 F.3d 764, 774 (9th Cir. 2002) (discussing unauthenticated deposition extracts).
Despite Defendant's contentions, this Court finds that Exhibits 11, 32, 33, 40, 41 are admissible because the record contains complete copies of these depositions all of which are properly certified and therefore comply with requirements of Fed. R. Civ. P. 30(f)(1).*fn4
Conversely, this Court find that Exhibits 14, 22, 26, 34, 35, 37 and 38 are merely portions of deposition transcripts all of which are unaccompanied by a court reporter's certification. Moreover, the record does not contain a complete certified copy of these depositions. Therefore, this Court strikes Exhibits 14, 22, 26, 34, 35, 37 and 38 from the record. See Fed. R. Civ. P. 30(f)(1).
Based upon the foregoing reasons, this Court's analysis of the motion at hand do not rely on the exhibits that this Court has stricken from the record.
Tortious Interference with Contract and Business Relationship and Prospective Business Advantage Count One of the Third Amended Complaint (Doc. # 59) is based on two separate sets of allegations. First, Plaintiff alleges that all defendants named in the Third Amended Complaint interfered with his lease agreements with tenants at the Terrace Property by: (1) fraudulently billing for water not actually used by residents; (2) falsely stating to Terrace residents that Plaintiff had not paid his water bill and that defendants would terminate water service; (3) placing false liens on the property; and (4) refusing to maintain electric utility poles on the property, all of which was "an illegal attempt to coerce the plaintiff into selling or donating the Interstate property to the City or the defendants, or for the defendants' benefit. " Id. ¶¶ 51, 52. As a result of that conduct, Plaintiff alleges that he suffered emotional distress and was forced to sell the Terrace Property at a significant loss. Id. ¶ 51.
Second, with respect to the Interstate Property, Plaintiff alleges that defendants interfered with his rights under a lease of that property by "illegally annexing and zoning the plaintiff's property and improperly refusing to allow plaintiff's tenant to expand the commercial business thereon" and by advising prospective purchasers of the property that "they would not be allowed to use the land in accordance with their plans." Id. at ¶¶ 54, 55.
"The tort of interference with a business relationship and contract rights occurs when a person, without a privilege to do so, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another, or not to perform a contract with another. A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St. 3d 1, 14, 651 N.E.2d 1283, 1294 (1995). To establish a cause of action a plaintiff must show the following: (1) the existence of a contract and/or a business relationship; (2) the wrongdoer's knowledge thereof; (3) the wrongdoer's intentional interference causing a breach or termination of the relationship; (4) lack of justification; and (5) resulting damages. Fred Siegal Co., L.P.A. v. Arter and Hadden, 85 Ohio St. 3d 171, 176, 707 N.E.2d 853, 858 (1999); Chandler & Assoc., Inc. v. America's Healthcare Alliance, Inc., 125 Ohio App. 3d 572, 583, 709 N.E.2d 190, 197 (1997). Here, Defendant argues that as a political subdivision of the State of Ohio it is immune from liability on Count One, and alternatively, Defendant did not "tortiously interfere" with Plaintiff's rights. For the reasons that follow, the Court is convinced by both of Defendant's arguments The Political Subdivision Tort Liability Act, codified in Ohio Rev. Code Chapter 2744, requires a multi-step analysis to determine whether a political subdivision is entitled to immunity from civil liability. Ohio Rev. Code § 2744.02(A)(1); Hubbard v. Canton City Sch. Bd of Ed., 97 Ohio St.3d 451, 780 N.E. 2d 543 (Ohio 2002). The first tier of the analysis imposes general immunity on all political subdivisions for damages. Id. It is undisputed that Defendant is political subdivision of the State of Ohio. (Doc. # 59 ¶ 3; Doc. # 64 ¶ 3.)
The immunity afforded to political subdivisions is not absolute. Hence, the second tier of the analysis requires the Court to determine whether any of the exceptions to immunity listed in Ohio Rev. Code § 2744.02(B) apply. These exceptions include: (1) the negligent non-emergency operation of a motor vehicle by a government employee within the scope of employment; (2) the negligent act of a government employee with respect to proprietary functions of the political subdivision; (3) the failure to keep public roads and other public grounds open, in repair and free from nuisance; (4) negligence by governmental employees that causes injury within or on the grounds of, and is due to physical defects within or on the grounds of, buildings used in the performance of a governmental function, not including jails or any other detention facility; and (5) liability expressly imposed by Ohio Rev. Code §§ 2743.02 and 5591.37. Ohio Rev. Code 2744.02(B). A claim for tortious interference with a contract is not one of the exceptions found in Ohio Rev. Code § 2744.02(B). Thus, Plaintiff has made no showing, and the Court does not find, that any of the exceptions to the statute are applicable in this case.
Because the Court has found none of the abrogating immunity exceptions apply, it need not consider the third tier of immunity analysis, which applies only when a political subdivision seeks to reinstate immunity based on one of the defenses contained in Ohio Rev. Code § 2744.03 after its immunity has been stripped. Consequently, this Court finds that Defendant is entitled to immunity on Plaintiff's ...