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Ray v. City of Bossier City10/24/2003
further posits that granting a continuance would have worked no hardship on the defense. While that may be a reasonable assumption, this court should not supply motions that were never filed and arguments that were never raised, or substitute its own reasons for an evidentiary ruling in place of those of the district court. In short, the district court did not err in its handling of the motion for extension of time or in striking the 15 attachments that were filed belatedly.
Without these additional attachments, the summary judgment evidence properly before the court negates any genuine issue of material fact as to all the plaintiffs' claims. In support of their motion for summary judgment, the City and Chief Dison attached an Internal Affairs report prepared by Capt. Glen Sproles. The defendants also attached excerpts from the depositions of the plaintiffs, Chief Dison and Councilman Jones. This report, with its attachments, clearly shows that the plaintiffs' separations from the Bossier Police Department were voluntary; that the plaintiffs were found to be in violation the department's code of conduct; that they had grossly abused police power; and that they were given the opportunity either to resign or face severe and public disciplinary action. The fact that their options were unpleasant does not alter the fact that they resigned and that under the circumstances this was a voluntary decision on their part.
In my view, the City and Chief Dison successfully showed an absence of factual support for an essential element of the plaintiffs' claims. La. C.C.P. art. 966 C(2). The burden therefore shifted to the plaintiffs to produce some factual support sufficient to establish that they would be able to meet their burden of proof at trial. Harris v. Eckerd Corp., 35,135 (La. App. 2 Cir. 09/26/01), 796 So. 2d 719. In my view, the plaintiffs utterly failed to meet this burden of production.
The majority hypothesizes that on a trial of the matter, the plaintiffs might be able to offer some evidence to contradict the findings of the Internal Affairs report, or that a jury might find the report to be unreliable. However, mere speculation that a jury might disbelieve the mover's witnesses is not sufficient grounds to defeat a properly supported motion. Babin v. Winn-Dixie La., 00-0078 (La. 06/30/00), 764 So. 2d 37; Allen v. State Farm Fire & Casualty Co., 36,377 (La. App. 2 Cir. 09/18/02), 828 So. 2d 190, writ denied, 02-2577 (La. 12/19/02), 833 So. 2d 343. To reach a different conclusion from the district court requires us to indulge in mere speculation. Finally, a plaintiff may not rely on his own delinquency in conducting discovery as a basis for denying a properly supported motion for summary judgment. Demopulos v. Jackson, 33,560 (La. App. 2 Cir. 06/21/00), 765 So. 2d 480, at fn. 4, and citations therein.
In short, the defendants' motions for summary judgment are fully and meticulously supported. They completely negate any genuine issues of material fact and expose the plaintiffs' claims for the specious allegations they are. I would affirm the summary judgments in toto, and I respectfully dissent from the majority's failure to do so.
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