Malquist v. Howard P. Foley Company

No. 92-457
IN THE SUPREME COURT OF THE STATE OF MONTANA
DALE H. MALQUIST, GEORGE BOHARSKI
and GEORGE EELT,
Plaintiffs and Appellants,
HOWARD P. FOLEY COMPANY, a District
of Columbia corporation, CITY
ELECTRIC, a Montana corporation,
and R.L. PAYNE COMPANY, INC.,
a Montana corporation,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
Tne Honorabie Ed nclean, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Dale Malquist, Lincoln, Montana, Pro Se
For Respondents:
Ronald A . Bender; Worden, Thane & Haines, Missoula,
Montana
William L. Crowley: Boone, Karlberg & Haddon,
Missoula, Montana
Submitted on Briefs: January 7, 1993
Decided: January 28, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Dale H. Malquist appeals from the summary judgment granted in
favor of City Electric and R , L . Payne Company, Inc. by the Fourth
Judicial District Court, Missoula County. We affirm.
Appellant Malquist, together with George Boharski and George
Belt, filed a complaint in 1982 against Howard P. Foley Company
(Foley), City Electric (City), and R.L. Payne Company, Inc.
(Payne). Plaintiffs alleged that defendants blacklisted them from
employment as electricians in 1980, in violation of Montana's
blacklisting statute, § 39-2-801, MCA, and sought compensatory and
punitive damages. The District Court dismissed the ciaims on
subject matter jurisdiction grounds; we reversed and remanded.
Malquist v. Foley (1986), 220 Mont. 176, 714 P.2d 995.
The case followed a lengthy and circuitous route, including
severai forays into the federai courr system. In addition, it was
stayed as a result of the bankruptcy of defendant Foley. The stay
order subsequently was lifted. Various motions were made and
briefs filed.
On May 27, 1992, the District Court dismissed the claims
against Foley with prejudice. On July 6, 1992, the court dismissed
the claims of plaintiff Belt for failure to prosecute. The
District Court then entered its opinion and order granting summary
judgment in favor of City and Payne against Malquist and Boharski.
Judgment was entered and the court subsequently denied Malquist and
Boharski's motion to reconsider. Malquist appeals, appearing pro
se.
2
The District Court determined that, even though discovery in
the case had begun in 1984, plaintiffs had produced no evidence to
even suggest that the alleged blacklisting occurred. In making
this determination, the court considered all of the available
evidence in the light most favorable to plaintiffs, including
certain tape recordings and affidavits argued by defendants to be
improperly before the court.
City and Payne established that no genuine issues of material
fact existed and that they were entitled to judgment as a matter of
law. The burden then shifted to plaintiffs to establish the
existence of a genuine issue of material fact. Plaintiffs failed
to meet their burden; indeed, the record is totally devoid of
support for plaintiffs' claim that City and Payne engaged in
blacklisting. Unsupported allegations are insufficient to raise
genuine issues of material fact. The District Court did not err in
granting summary judgment.
Appellant Malquist also argues that the court erred in ruling
on the summary judgment motions on July 6, prior to the scheduled
July 10, deadline for close of discovery. He asserts that further
discovery might have produced evidence in support of the
blacklisting claims. The record reflects that plaintiffs had
sufficient time after receipt of defendants' motion, and before the
hearing on the motion, to respond with any evidence in their power
to produce; indeed, they submitted materials--including tape
recorded conversations from 1980 and affidavits--in opposition to
defendants' motion for summary judgment. Given the content of the
record and the fact that plaintiffs had uncovered no evidence to
support their claim between the time of the alleged blacklisting in
1980 and the summary judgment proceeding in 1992, the District
Court did not err in granting summary judgment several days before
the scheduled close of discovery.
Pursuant to Section I, Paragraph 3(c), Montana Supreme
Court 1988 Internal Operating Rules, this decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to Montana Law Week, State Reporter and West Publishing
Company.
Affirmed .
We concur:
January 28, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Dale Malquist
P.O. Box 633
Lincoln. MT 59639
Ronald A. Bender, Esq.
Worden, Thane & I-Iaines
P.O. Box 4747
Missoula, MT 59806
--..... i.Crowiey, Esq.
wmam
Boone, Karlberg & Waddon
P.O. Box 9199
Missoula, MT 59807-9199
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA