Citations
- 779 F. Supp. 2d 858
Full opinion text
OPINION AND ORDER
THERESA L. SPRINGMANN, District Judge.
In this lawsuit, the Plaintiffs seek recovery under the theories of breach of contract and waste for alleged damage to fourteen different pieces of commercial property in Indiana, Michigan, and Ohio. The Defendants and/or their predecessors in interest leased several gasoline stations from the Plaintiffs and/or their predecessors in interest, and the Plaintiffs claim that the Defendants and their predecessors in interest neglected and destroyed the leased commercial properties and thereby injured the Plaintiffs’ rights and interests in the properties. As to some of the properties, years before this lawsuit was instituted, the parties’ predecessors in interest entered into written agreements cancelling their lease agreements involving the properties and releasing the Plaintiffs, the Defendants, and their predecessors in interest from all claims arising out of or in connection with the leases.
This matter is before the Court on a Motion for Partial Summary Judgment [ECF No. 125] filed by the Defendants that seeks judgment on the Plaintiffs’ claims as to three Michigan properties. Also before the Court is the Defendants’ Motion to Strike [ECF No. 172] certain evidentiary materials submitted by the Plaintiffs. These motions are fully briefed and ripe for ruling.
BACKGROUND
On December 17, 2004, the Plaintiffs instituted this lawsuit. In their twenty-eight count Complaint [ECF No. 1], they named Marathon Ashland Petroleum as the Defendant. On January 21, 2005, they filed an Amended Complaint [ECF No. 17], adding Speedway SuperAmerica, LLC and Marathon Oil Company as additional Defendants. The Plaintiffs premise this Court’s subject-matter jurisdiction on diversity of citizenship pursuant to 28 U.S.C. § 1332. On February 28, 2005, the Defendants filed their Answer [ECF No. 34], and on March 15, they filed their Amended Answer [ECF No. 40].
On July 31, 2007, the Defendants filed their Motion for Partial Summary Judgment on All Issues Regarding the Hills-dale, Michigan (Counts 11 and 12), Monroe, Michigan (Counts 13 and 14), and Sturgis, Michigan (Counts 27 and 28) Properties [ECF No. 125], a Brief in Support [ECF No. 126], a Submission of Evidence [ECF No. 127] (with attached Exhibits), and an Appendix/Statement of Material Facts [ECF No. 128]. Counts 11 and 12 of the Amended Complaint relate to commercial property in Hillsdale, Michigan, which is owned by Plaintiffs Bitter Investment Venture V, LLC and Melching Investment Venture V, LLC. Counts 13 and 14 of the Amended Complaint relate to commercial property in Monroe, Michigan, which is owned by Plaintiffs Bitter Investment Venture VI, LLC and Melching Investment Venture VI, LLC. Counts 27 and 28 of the Amended Complaint relate to commercial property in Sturgis, Michigan, which is owned by Plaintiffs Bitter Investment Venture V, LLC and Melching Investment Venture V, LLC. In their First Amended Complaint, the Plaintiffs allege generally that the Defendants left these three properties in a damaged condition with remaining environmental uncertainties and that the Defendants returned the properties to the owners in a condition that was both unsaleable and untenantable at fair market rates. In them breach of contract claims (Counts 11, 13, and 27), the Plaintiffs allege that the Defendants failed to perform their obligations under the commercial lease agreements and that by their breach they have caused the Plaintiffs to suffer damages. In their waste claims (Counts 12, 14, and 28), the Plaintiffs allege that the Defendants occupied the subject properties under valid and binding lease agreements, destroyed, misused, altered, mutilated, and damaged the properties, and left the properties in a damaged condition, that the Plaintiffs have had to spend their own monies to restore the properties, that the Plaintiffs have suffered damages in the value of the properties, and that the Plaintiffs are entitled to double' the amount of their actual damages under Michigan Compiled Laws § 600.2919.
On August 24, the Plaintiffs filed a Response [ECF No. 152] and a Submission of Evidence [ECF No. 153] (with attached Exhibits). On September 24, the Defendants filed a Reply [ECF No. 171] and evidentiary materials. Also on September 24, the Defendants also filed a Motion to Strike Portions of the Affidavit of Philip Rodenbeck and the First Affidavit of J. Maxine Melching in Its Entirety [ECF No. 172] and a Brief in Support [ECF No. 173]. On October 12, the Plaintiffs filed a Response [ECF No. 184], and on October 26, the Defendants filed a Reply [ECF No. 188].
The Defendants’ Motion for Partial Summary Judgment on All Issues Regarding the Hillsdale, Michigan (Counts 11 and 12), Monroe, Michigan (Counts 13 and 14), and Sturgis, Michigan (Counts 27 and 28) Properties is the third in a series of summary judgment motions filed by the parties that together seek summary judgment on each of the twenty-eight claims asserted by the Plaintiffs. The Defendants have also filed a series of motions in limine and motions to strike. This Opinion and Order addresses only the third of these summary judgment motions and one of the motions to strike filed by the Defendants.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure provide that a court shall grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when “ ‘there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ ” AA Sales & Assocs. v. ConiSeal, Inc., 550 F.3d 605, 608-09 (7th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court’s role on summary judgment is not to weigh the evidence, make credibility determinations, or decide which inferences to draw from the facts, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Washington v. Haupert, 481 F.3d 543, 550 (7th Cir.2007); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003). A court in ruling on a summary judgment motion construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in that party’s favor. AA Sales & Assocs., 550 F.3d at 609.
FACTS
A. The Relevant Parties and the Leases
On December 1, 1968, George O. and Mary Eleanor Bitter and Max E. and J. Maxine Melching entered into a lease agreement entitled “Indenture of Lease” with Progressive Oil Company, Inc., involving the subject property in Hillsdale, Michigan, which the Bitters and the Melchings owned. On October 1, 1966, George O. and Mary Eleanor Bitter and Max E. and J. Maxine Melching entered into a lease agreement entitled “Indenture of Lease” with Progressive Oil Company, Inc., involving the subject property in Sturgis, Michigan, which the Bitters and the Melchings owned. The record before the Court does not appear to include a similar indenture of lease for the Monroe property from the 1960s or 1970s, but a ledger sheet in the record suggests that Mr. Bitter and Mr. Melching had begun leasing the Monroe property to Progressive Oil Company for use as a gasoline station as early as 1971. At times during this period, George Bitter and Max Melching were officers of Progressive Oil Company. At some point, which is not critically important to the present issues in this case, Rock Island Refining Company acquired Progressive Oil Company, and eventually Marathon Oil Company acquired Rock Island Refining Corporation and its wholly-owned subsidiary or affiliate R.I. Marketing Company, Inc. The Hills-dale, Monroe, and Sturgis properties were used as retail gasoline stations.
On October 27, 1983, George O. Bitter and Max E. Melching entered into separate lease agreements entitled “Indenture of Lease” with R.I. Marketing, Inc., involving the Hillsdale, Monroe, and Sturgis properties. These leases were for eleven-year terms, running from December 1, 1983, to November 30, 1994, and included renewal options. The leases included the following term regarding use of the leased premises: “During the lease term, the Lessee shall use the leased premises in a careful and proper manner and for lawful purposes only, and shall, at its own expense, comply with any and all applicable statutes, ordinances, rules and regulations relating to the occupancy or use of the leased premises.” (Third Gilbert Aff., Ex. A-4 at 4, Ex. A5 at 3-4, & Ex. A-6 at 4.) Another term of the lease agreements provided in part as follows regarding buildings and improvements: “No building or improvement now or hereafter located or constructed on the leased premises shall be removed or materially altered (except by way of addition) without the prior written consent of the Lessors, except that existing buildings or improvements may be replaced, rehabilitated or restored if the resulting improvements are worth at least as much after the replacement, rehabilitation or restoration as before.” (Third Gilbert Aff., Ex. A-4 at 6-7, Ex. A-5 at 6, & Ex. A-6 at 7.) Within several months of executing these agreements, Mr. Bitler and Mr. Melehing met with William Gilbert, an employee and representative of Marathon Oil Company and Marathon Petroleum Company who managed real estate and leases in the region during the relevant period. Mr. Bitler and Mr. Melehing informed Mr. Gilbert that Mr. Melehing would be the primary contact person regarding the properties.
In July 1989, Marathon Oil Company (then known as Marathon Petroleum Company) acquired Rock Island Refining Corporation and R.I. Marketing, and Emro Marketing Company (a wholly-owned subsidiary of Marathon Petroleum Company) eventually acquired the leases to the Hills-dale, Monroe, and Sturgis properties. New federal regulations governing underground storage tanks used to store gasoline and other petroleum products were promulgated in the late 1980s. These regulations required upgrades or replacement of existing tanks and piping by December 22,1998.
In July 1991, Mr. Bitler and Mr. Melehing entered into an Amendment to Lease (Monroe Amendment) with Emro Marketing involving the Monroe property. On October 6, 1992, Mrs. Bitler and Mrs. Melehing entered into a Master Amendment to Leases (Hillsdale Master Amendment) agreement with Emro Marketing involving the Hillsdale property. On October 6, 1992, Mr. Bitler and Mr. Melehing also entered into a Master Amendment to Leases (Sturgis Master Amendment) agreement with Emro Marketing Company involving the Sturgis property. The Monroe Amendment and the Hillsdale and Sturgis Master Amendments transferred to Emro Marketing ownership of the underground storage tanks and all related piping at these premises, and Emro Marketing assumed responsibility for removing from these premises the underground storage tanks and all related piping, prior to the end of the lease term and subject to extension as provided in the Master Amendment. Emro Marketing agreed that its tank and piping removal would fully comply with all applicable laws, rules, regulations, and ordinances. In addition to replacing any asphalt, concrete, or other surface damaged or destroyed in the removal process, Emro Marketing also agreed to backfill holes and trenches in compliance with all applicable laws, rules, regulations, and ordinances and in a good business-practice manner so as to leave the premises in a condition reasonably useful for future commercial use. Emro Marketing agreed to assume all responsibility “for any and all liability, losses, damages, costs and expenses resulting from its use of the Premises and the removal of the underground storage tanks and piping, as said liability may be determined by all applicable federal, state, and local laws, rules and regulations.” (Third Gilbert Aff., Ex. A-7 at 1-2, Ex. A-8 at 2, & Ex. A-9 at 2.) Accordingly, it would “indemnify, defend, and hold [Mrs. Melehing and Mrs. Bitler or Mr. Melehing and Mr. Bitler] harmless from and against any and all liability, claim, action, cause of action, loss, damage, cost and expense, ... which [Mrs. Melching and Mrs. Bitter or Mr. Melching and Mr. Bitter] may incure by reason of the occupation, leasing, subleasing, or use of the Premises by [Emro Marketing], or any other party, up to and including the termination date of the Lease, or the last day of any lease extension period.” (Third Gilbert Aff., Ex. A-7 at 2, Ex. A-8 at 2, & Ex. A-9 at 2.) This agreement to indemnify and hold harmless extended to any liability, loss, or damage arising out of Emro Marketing’s failure to conform to or comply with applicable laws in connection with its occupation, leasing, subleasing, or use of the premises up to and including the lease termination date or the last day of any lease extension period. The agreement imposed certain notice requirements on Mrs. Melching and Mrs. Bitter or Mr. Melching and Mr. Bitter when they had knowledge of any act or occurrence involving a liability, claim, demand, or costs. The Monroe Amendment and the Hillsdale and Sturgis Master Amendments included a term regarding a rent-free occupancy period in the event Emro Marketing elected to discontinue the business operations on the premises on or before the termination date of the applicable lease or any extension.
The Monroe Amendment provided as follows regarding environmental issues related to the Plaintiffs’ claims:
4. [Emro Marketing] agrees that prior to vacating the Premises, it shall, at its own expense, remove from the Premises any and all existing environmental contamination, which shall be defined as the uncontained presence of any hazardous substance, pollutant or contaminant or the presence of waste of any kind in, on or under the Premises which may require remediation under any applicable law. All remediation work in this regard, including, but not limited to, that work required by the removal of the underground storage tanks, shall be performed in accordance with all laws, rules and regulations applicable to such remediation, and [Emro Marketing] shall return the Premises to [Mr. Melching and Mr. Bitter] as nearly as possible in the same condition as it was in prior to such remediation work, subject only to the removal of the contamination.
6. [Emro Marketing] shall undertake the underground storage tank and piping removal during the Occupancy Period, and in the event the complete removal, remediation and restoration project is not completed by the conclusion of the Occupancy Period, said Occupancy Period shall be extended on a month-to-month basis in consideration of the payment by [Emro Marketing] to [Mr. Melching and Mr. Bitter] of the sum of $891.00 per month until such time as the entire project is completed, including obtaining all approvals and clearances required under federal, state and local law. [Emro Marketing] agrees to provide [Mr. Melching and Mr. Bitter] with copies of any and all documents related to the removal, remediation and restoration project, and [Mr. Melching and Mr. Bitter] shall have the further right to review and obtain copies of all documentation related to said project during the course of the same and after its conclusion.
(Third Gilbert Aff., Ex. A-7 at 3-4.) The Hillsdale and Sturgis Master Amendments provided as follows regarding environmental issues related to the Plaintiffs’ claims:
4. [Emro Marketing] agrees that prior to vacating the Premises, it shall, at its own expense, clean up any petroleum related or petroleum caused contamination discovered at the Property provided that: a) the contamination exceeds acceptable or legal levels established by the state in which the property is located or the United States Environmental Protection Agency; and b) the cleanup will be to a level existing in law, regulations, or ordinances established by the State ... or the United States Environmental Protection Agency or, if no such level is established, the cleanup will be to a level adequately protective of public health and safety, as determined by a scientific consultant retained by Emro. All remediation work in this regard, including, but not limited to, that work required by the removal of the underground storage tanks, shall be performed in accordance with all laws, rules and regulations applicable to such remediation, and [Emro Marketing] shall return the Premises to [Mrs. Melching and Mrs. Bitler or Mr. Melching and Mr. Bitler] as nearly as possible in the same condition as it was in prior to such remediation work, subject only to the removal of the contamination and normal wear from reasonable use of the property.
5. [Emro Marketing] shall undertake the underground storage tank and piping removal during the Occupancy Period, and in the event the complete removal, remediation and restoration project is not completed by the conclusion of the Occupancy Period, said Occupancy Period shall be extended on a month-to-month basis in consideration of the payment by [Emro Marketing to Mrs. Melching and Mrs. Bitler or Mr. Melching and Mr. Bitler] of the monthly sum of money specified ... until such time as the entire project is completed. Any governmental or otherwise required continuing groundwater monitoring or pumping or treating shall not be deemed to, extend the remediation and restoration project or the obligation of [Emro Marketing] to pay rent to [Mrs. Melching and Mrs. Bitler or Mr. Melching and Mr. Bitler] unless said monitoring or pumping or treating materially interferes with [Mrs. Melching and Mrs. Bitler or Mr. Melching and Mr. Bitler’s] use of the premises or [their] ability to sell or lease the same. [Emro Marketing] agrees to provide [Mrs. Melching and Mrs. Bitler or Mr. Melching and Mr. Bitler] with copies of any and all documents related to the removal, remediation and restoration project, and [Mrs. Melching and Mrs. Bitler or Mr. Melching and Mr. Bitler] shall have the further right to review and obtain copies of all documentation related to said project during the course of the same and after its conclusion.
(Third Gilbert Aff., Ex. A-8 at 3 and Ex. A-9 at 3-4.) The Hillsdale and Sturgis Master Amendments also included a lease buyout term when the occupancy period ended before the termination date of the relevant lease. In the Master Amendments, Emro Marketing agreed to provide copies of all environmental reports submitted to state agencies, copies of correspondence received from state agencies related to such reports, and periodic status reports relative to remediation. The parties also agreed that the 1983 leases remained in full force and effect, except as amended by the Monroe Amendment and the Hills-dale and Sturgis Master Amendments.
B. The Closure and Release Regarding the Hillsdale Property
By letter dated September 18, 1997, Emro Marketing notified Mrs. Bitler and Mrs. Melehing that it permanently closed the gas station operated on the Hillsdale premises on September 15, 1997; that the rent-free occupancy period would begin on October 1,1997, and continue through September 30, 1998; that it would not be making any rent payments from October 1, 1997, to September 30, 1998; and that it remained responsible for the real estate tax through September 30, 1998. In the years before this notification, the parties had agreed to extend or renew the 1983 lease of the Hillsdale property.
On or about December 18, 1997, Emro Marketing’s leasehold interest in the Hills-dale property was assigned to Marathon Oil Company. On or about April 28, 1998, four underground storage tanks and related piping were removed. In a letter dated August 10, 1998, Marathon Oil Company notified Mrs. Bitter and Mrs. Melehing of its intention to exercise the final-one-year renewal option, effective December 1, 1998.
By December 7, 1998, the underground storage tanks and related piping had been removed, but the remediation work remained. With a letter dated December 7, 1998, the Defendants provided Mrs. Melehing copies of an Agreement of Termination and Mutual Release of Lease (Hillsdale Termination and Release Agreement) for Mrs. Melehing and Mrs. Bitter to sign and return to the Defendants. The letter indicated that the effective date would be January 31, 1999, to facilitate or accommodate Mrs. Bitter and Mrs. Melehing entering into a new lease of the Hills-dale property with Superior Auto. The Hillsdale Termination and Release Agreement indicated that the parties to the lease of the Hillsdale property desired to terminate the lease as amended and release each other from liability arising out of the leasehold. The Hillsdale Termination and Release Agreement provided in relevant part:
2. Termination
The Lease ... covering the Premises, including any and all of the Tenant’s rights, interest, and estate in the premises, is terminated, effective as of January 31, 1999. Neither [Marathon Oil Company], nor its successors, assigns, or sublessees, shall have or exercise any rights in the Premises upon the effective date of this agreement.
3. Release
With the exception of [Marathon Oil Company’s] responsibility and liability for environmental remediation of The Premises pursuant to the Lease as amended, [Mrs. Bitter and Mrs. Melehing and Marathon Oil Company], each for themselves and for their respective successors and assigns, for good and valuable consideration, do hereby release and forever discharge the other from any and all debts, claims, obligations, liabilities, demands, damages, actions, causes of action, and penalties of every kind and description whatsoever from the beginning of the world to the date of this agreement, including but not limited to such as have arisen or may hereafter arise, whether now known or disclosed or hereafter discovered and disclosed, out of the execution and delivery of the Lease ..., and any and all instruments and documents by whomever executed and delivered in connection with the Lease, and the termination and cancellation by [Marathon Oil Company]. [Mrs. Bitter and Mrs. Melehing and Marathon Oil Company] understand and acknowledge that [Marathon Oil Company] shall not be liable for any rents, costs, expenses, or charges of any kind, nor required to do or perform any acts of any kind, in connection with said termination and cancellation.
4. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of [Mrs. Bitler and Mrs. Melching and Marathon Oil Company] and their respective successors and assigns.
5. Merger
Except as specifically set forth herein and expressly excepting a license agreement between the parties regarding environmental corrective action on The Premises, this Agreement constitutes the entire agreement between the parties. If any provision herein is deemed invalid under any applicable law, such provision shall be deemed omitted but the remaining provisions herein shall be applicable.
(Third Gilbert Aff., Ex. A-19 at 1-2.) The Hillsdale Termination and Release Agreement was signed by Mrs. Bitler and Mrs. Melching, as landlord, and by Marathon Oil Company, as tenant. The landlord’s signatures were witnessed by Mr. Bitler and Mr. Melching. Mrs. Bitler signed the agreement on January 19, 1999, and Mrs. Melching signed it on January 13, 1999. The signatures of the parties and party representative executing this agreement were also witnessed by notaries public who attested that Mrs. Bitler and Mrs. Melching personally appeared before the notaries and acknowledged signing the agreement as their own free acts and deeds.
Mrs. Bitler and Mrs. Melching re-let the property to Superior Auto for use as a used car lot, but Superior Auto did not renew its two-year lease in January 2001 because it purchased a larger property in the Hillsdale area that would better serve its business needs. (Later the property was re-let for use as a hair salon and then for use as a cellular phone business.)
With a letter to Mr. Melching dated December 28, 1998, Defendant Speedway SuperAmerica, LLC provided a signed license agreement between Speedway SuperAmerica and Mrs. Melching for the purpose of permitting the Defendants to conduct environmental assessment and remediation activities on the Hillsdale property. This license agreement was signed by a representative of the Defendants on December 28, 1998, and by Mrs. Melching on December 7, 1998. The term of the license agreement extended through the completion of the requisite assessment and remediation. The same parties executed a second license agreement in April 1999 for the same purpose. It was signed by a representative of Defendant Speedway SuperAmerica on April 22, 1999, and by Mrs. Melching on April 26, 1999. Its term also extended through the completion of the requisite assessment and remediation.
Along with a letter dated June 30, 2005, Geo Resources, Inc. (GRI) submitted a Closure Report to the Remediation and Redevelopment Division of the Michigan Department of Environmental Quality (MDEQ), and the property thereafter achieved residential closure. Although Mr. Melching and a representative of Superior Auto asked the Defendants in the latter part of 1998 and possibly in January 1999 to address some matters such as electrical or plumbing work and debris removal at the Hillsdale property, which the Defendants arranged to have addressed, neither the Bitlers nor the Melchings subsequently communicated with Mr. Gilbert regarding any dissatisfaction with the condition of the Hillsdale property.
C. The Closure and Release Regarding the Monroe Property
On or about November 11, 1990, a gasoline release on the Monroe property was reported to the MDEQ. In August 1991, soon after the Monroe Amendment was executed, the underground storage tanks and related piping were removed. By letter dated October 10, 1991, Marathon Oil Company notified Mrs. Melching that it discontinued its business operations on the Monroe property on November 27, 1990. The letter indicated that its rental payments continued between the date when it discontinued operations and the date of the letter, that the rent-free occupancy period would begin on November 1, 1991, and end on April 16, 1993. On or about December 18, 1997, Emro Marketing’s leasehold interest in the Monroe property was assigned to Marathon Oil Company.
Consolidated Environmental Services, Inc. (CES), Emro Marketing’s environmental consultant, prepared a Closure Report dated July 26, 1996, requesting Tier 1 residential closure, and this report was submitted to the MDEQ. In an audit letter dated October 28, 1996, the MDEQ responded that the site was not eligible for a residential closure. In a letter dated December 30, 1996, CES responded to the MDEQ with a Response to Audit of Correction Actions, requested Tier 1 residential closure, and stated that no further corrective action was required. The MDEQ made no comment or response to CES’s December 30, 1996, letter. In 1998, Techna Corporation performed an environmental assessment of the Monroe property on behalf of a party who was interested in purchasing the property for use as a restaurant. The assessment report, dated March 27, 1998, was submitted to the MDEQ. The MDEQ approved the environmental assessment and concluded that the existing impacts at the Monroe property would not pose an unacceptable human health risk for the new proposed use.
In a letter dated August 18, 1999, Marathon Oil Company formally notified Mr. Bitler and Mr. Melching that the lease on the Monroe property was terminated effective August 31, 1999. The letter indicated that the property was no longer an active remediation site and that the MDEQ had not responded within six months to the last assessment report and request for closure. Along with the letter, the Defendants provided Mr. Bitler and Mr. Melching copies of the July 26, 1996, Closure Report, the October 28, 1996, request from MDEQ for additional information, and the December 30, 1996, supplemental report. The August 18, 1999, letter stated that copies of an Agreement of Termination and Mutual Release of Lease (Monroe Termination and Release Agreement) were enclosed for Mr. Bitler and Mr. Melching to sign and return to the Defendants. The Monroe Termination and Release Agreement indicated that the parties to the lease of the Monroe property desired to terminate the lease as amended and release each other from liability arising out of the leasehold. The Monroe Termination and Release Agreement provided in relevant part:
2. Termination
The Lease ... covering the Premises, including any and all of the Tenant’s rights, interest, and estate in the premises, is terminated, effective as of August 31, 1999. Neither [Marathon Oil Company], nor its successors, assigns, or sublessees, shall have or exercise any rights in the Premises upon the effective date of this agreement.
3. Release
With the exception of [Marathon Oil Company’s] responsibility and liability for environmental remediation of The Premises pursuant to the Lease as amended, [Mr. Bitler and Mr. Melching and Marathon Oil Company], each for themselves and for their respective successors and assigns, for good and valuable consideration, do hereby release and forever discharge the other from any and all debts, claims, obligations, liabilities, demands, damages, actions, causes of action, and penalties of every kind and description whatsoever from the beginning of the world to the date of this agreement, including but not limited to such as have arise[n] or may hereafter arise, whether now known or disclosed or hereafter discovered and disclosed, out of the execution and delivery of the Lease ..., and any and all instruments and documents by whomever executed and delivered in connection with the lease, and the termination and cancellation by [Marathon Oil Company], [Mr. Bitter and Mr. Melching and Marathon Oil Company] understand and acknowledge that [Marathon Oil Company] shall not be liable for any rents, costs, expenses, or charges of any kind, nor required to do or perform any acts of any kind, in connection with said termination and cancellation.
4. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of [Mr. Bitter and Mr. Melching and Marathon Oil Company] and their respective successors and assigns.
5. Merger
Except as specifically set forth herein, this Agreement constitutes the entire agreement between the parties. If any provision herein is deemed invalid under any applicable law, such provision shall be deemed omitted but the remaining provisions herein shall be applicable.
(Third Gilbert Aft, Ex. A-24 at 1-2.) The Monroe Termination and Release Agreement was signed by Mr. Bitter and Mr. Melching, as landlord, and by Marathon Oil Company, as tenant. The landlord’s signatures were witnessed by Lori Adams of Fort Wayne, Indiana. Mr. Bitter signed the agreement on August 24, 1999, and Mr. Melching signed it on August 19, 1999. The signatures of Mr. Bitter and Mr. Melching were also witnessed by notaries public who attested that Mr. Bitter and Mr. Melching personally appeared before the notaries and acknowledged signing the agreement as their own free acts and deeds.
In a letter dated August 17, 2000, Marathon Ashland Petroleum, LLC asked for Mrs. Melching’s consent to allow the Defendants to remove a building from the Monroe property, as demanded by a Frenchtown Charter Township Ordinance. The letter states an assumption that Mrs. Melching possessed the authority to sign for Mr. Bitter and Mr. Melching, the landlords of the Monroe property, and directs Mrs. Melching to return a copy to Mr. Gilbert in a self-addressed envelop. Mrs. Melching’s signature appears at the bottom of the letter manifesting consent.
In December 2005, the Monroe property obtained Tier 1 closure status with the MDEQ in accordance with Michigan regulations. Neither the Bitters nor the Melchings communicated with Mr. Gilbert regarding any dissatisfaction with the condition of the Monroe property.
D. The Closure and Release Regarding the Sturgis Property
By letter dated April 16, 1993, Emro Marketing notified Mr. Bitter and Mr. Melching that it would be permanently closing the gas station operated on the Sturgis premises on April 28, 1993; that the rent-free occupancy period would begin on May 1, 1993, and continue through February 11, 1995; that it would not be making any more rental payments on that station effective immediately; and that it remained responsible for the real estate taxes through November 30, 1994. All known underground storage tanks and associated piping were removed in April 1994.
Tol Test, Inc., Emro Marketing’s environmental consultant, prepared a Closure Report, which was dated April 26, 1995, and was submitted to the MDEQ. In a letter dated May 4, 1995, Emro Marketing informed Mr. Melching that its occupancy of the Sturgis property would terminate effective June 30, 1995, referenced an attached letter of Julius Blanco, one of its environmental engineers, and indicated that the property was ready for Mr. Melching to market as either a sale or a lease. In a letter dated June 13, 1995, to Emro Marketing, MDEQ denied closure and recommended additional testing.
Mr. Bitler and Mr. Melching were informed that MDEQ had requested additional environmental work on the Sturgis premises and that work was being performed after the submission of the April 1995 Closure Report. Mr. Melching and Mr. Bitler re-let the Sturgis property to Superior Auto on January 1, 1996, for use as a used car lot. (This lease was extended through January 2007. Superior Auto did not thereafter renew the lease of the Sturgis property because it found a larger property in Sturgis that better suited its commercial needs.) In a letter to Emro Marketing dated March 30, 1996, Mr. Melching requested a reimbursement payment in the amount of $611.86 for repairs due to frozen plumbing and electrical lines damaged during the removal of the underground storage tanks. Emro Marketing paid for these repairs. Otherwise, neither Mr. or Mrs. Bitler nor Mr. or Mrs. Melching requested any repairs, expressed any dissatisfaction with the condition in which the premises was returned to them upon the termination of the lease, or communicated any dissatisfaction with renting the premises as a used car lot.
After additional environmental testing, Belsito Environmental Services, Inc. (BES) prepared and submitted a second Closure Report, dated August 28, 1996. With a letter dated September 6, 1996, Marathon Oil Company provided Mr. Bitler and Mr. Melching with a copy of the Closure Report. In a letter dated November 5, 1996, MDEQ again denied closure. Additional work and testing was performed at the Sturgis property. BES then prepared and submitted a Final Assessment Report dated October 1, 1997, to the MDEQ.
On May 20 and 28, 1998, respectively, Mr. Melching and Mr. Bitler signed a License Agreement with the Defendants that provided the Defendants and their representatives access to the Sturgis property to conduct environmental assessment and remediation activities. A representative of the Defendants signed the agreement on June 25, 1998. By letter dated July 2, 1998, Attorney Peter G. Mailers sent Mr. Melching and Mr. Bitler a copy of this agreement.
In a letter dated November 17, 1998, MDEQ requested that groundwater be investigated. Groundwater testing was performed. NESA & Associates, Inc. prepared a third Closure Report, which was dated December 2, 1998, and submitted it to the MDEQ. In a letter dated December 7, 1998, the Defendants provided Mr. Melching with the third Closure Report. The six-month review period then passed, and the Sturgis property has Tier 1 environmental closure in compliance with applicable MDEQ regulations.
ANALYSIS
A. The Defendants’ Motion to Strike [ECF No. 172]
Before addressing the Defendants’ Motion for Partial Summary Judgment, the Court will address the Defendants’ Motion to Strike Portions of the Affidavit of Philip Rodenbeck and the First Affidavit of J. Maxine Melching in Its Entirety. The Plaintiffs submitted these two affidavits as part of their evidentiary submission in support of their Response [ECF No. 153-14 & ECF No. 153-15] to the Defendants’ Motion for Partial Summary Judgment, and the Defendants submitted them along with their Motion to Strike [ECF No. 172-2 & 172-3].
Under Federal Rule of Civil Procedure 56(c)(4), any affidavit or declaration “used to support or oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” On a motion for summary judgment, a court must not consider parts of an affidavit that fail to comply with the rule. Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir.2004); Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir.1987). At the summary judgment stage, a court does not evaluate the relative veracity of each party’s facts, provided the claims are not implausible on their face, even if the one-sidedness of the allegations causes the court to raise a brow. See Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761-62 (7th Cir.2006). Likewise, a court “do[es] not vouch for the truth of the facts, but rather merely use[s] them to determine whether the ease can be resolved as a matter of law.” Id. at 762 (citation omitted). A court may rely on all admissible evidence, even if the evidence is not presented in admissible form. Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613 (7th Cir.2002). Affidavit testimony must concern matters within the affiant’s personal knowledge. Payne v. Pauley, 337 F.3d 767, 772 (7th Cir.2003); see also Fed.R.Evid. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Personal knowledge is not a rigid requirement; it also “includes opinions and inferences grounded in observations or other firsthand experience.” United States v. Joy, 192 F.3d 761, 767 (7th Cir.1999) (citing Visser v. Packer Eng’g Assoc., Inc., 924 F.2d 655, 659 (7th Cir.1991)). The following statements do not comply with the rule and should be disregarded: (1) conclusory allegations lacking supporting evidence; (2) legal argument; (3) self-serving statements without factual support in the record; (4) inferences or opinions not grounded in observation or other firsthand experience; and (5) mere speculation or conjecture. Smith v. Hydro Aluminum N. Am., Inc., No. 3:08-CV-153, 2010 WL 1382113, at *1 (N.D.Ind. Mar. 30, 2010); Heltzel v. Dutchmen Mfg., Inc., No. 3:06-CV-227, 2007 WL 4556735, at *4 (N.D.Ind. Dec. 20, 2007) (quotation marks and citations omitted). Although “self-serving statements in affidavits without factual support in the record carry no weight,” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir.2004) (emphasis omitted), “a self-serving affidavit supported by facts in the record [can] defeat summary judgment,” and the record “may include the self-serving affidavit itself, provided that the affidavit meets the usual requirements for evidence on summary judgment — including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there was a genuine issue for trial,” Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir.2004) (quotation marks and citations omitted).
The Defendants argue that the Affidavit of Philip Rodenbeck and the Affidavit of J. Maxine Melching are replete with inadmissible hearsay, unsupported assertions, and “beliefs” that are not admissible evidence. They request that the statements be stricken or, in the alternative, ignored by the Court in ruling on the various motions for summary judgment. As to the Rodenbeck Affidavit, they identify Paragraphs 2, 4, and 8 through 11. As to the Melching Affidavit, they identify Paragraphs 3, 4, 6, 8 through 15, and 17 through 20. The Plaintiffs respond that the affidavits should not be stricken because each, when read as a whole and in the context of the matters at issue, demonstrates the personal knowledge of the affiant, shows the affiant is competent, and sets forth facts as would be admissible at trial.
In this Section of this Opinion and Order, the Court will evaluate the statements challenged by the Defendants in their Motion to Strike. In the next Section, as the Court addresses the legal issues presented by the Defendants’ Motion for Partial Summary Judgment and analyzes the facts under the governing procedural and substantive law, the Court will sift through the evidence, consider each piece under the applicable federal rules, consider the admissibility of the Plaintiffs statements, and determine whether there are any irrelevant, inadmissible, conclusory, or speculative assertions that should be disregarded.
1. The Rodenbeck Affidavit
Phil Rodenbeck is the son-in-law of Mr. Melching and has been married to Mr. Melching’s daughter for more than forty years. The Defendants challenge the following statements in Paragraph 2 of the Rodenbeck Affidavit:
I watched Mr. Melching’s health decline through the 1990s as he suffered more and more from Parkinson’s Disease and depression.... By the middle of 1999, he could no longer conduct any matters relating to his real estate business.
Mr. Rodenbeck has it within personal knowledge, and he is competent to testify to, what he observed regarding Mr. Melching’s health decline and suffering from certain illnesses. He is not, however, competent to testify to the effect of any of Mr. Melching’s illnesses on his mental ability. Although Mr. Rodenbeck could testify to matters such as not seeing Mr. Melching conduct business after the middle of 1999, the record does not provide a sufficient evidentiary basis as to his personal knowledge and competence to testify as to Mr. Melching’s ability to conduct matters related to his real estate business or the effect of Mr. Melching’s illness on his abilities. The Court will grant the Motion to Strike as to those matters beyond Mr. Rodenbeck’s personal knowledge and competence in Paragraph 2.
The Defendants challenge the following statement in Paragraph 4:
Mr. Melching saved all papers received from Marathon relating to the sites while he looked after the properties
Mr. Rodenbeck has not provided supporting evidence for this conclusory statement. What Mr. Melching did or did not do with any or all papers received from Defendant Marathon Oil Company relating to the sites is beyond Mr. Rodenbeck’s personal knowledge. The Court will grant the Motion to Strike as to the first half of the second sentence of Paragraph 4.
The Defendants challenge the following statement in Paragraph 8:
In 2004, Mr. Jack Lawson, our attorney at the time, requested all environmental reports from Mr. Bill Gilbert.
Mr. Rodenbeck has provided no supporting evidence for this conclusory statement regarding Mr. Lawson’s request. There is no basis for viewing this as a matter within his personal knowledge. The Court will grant the Motion to Strike as to the first sentence of Paragraph 8.
The Defendants challenge the following statements in Paragraph 9:
In part because of Marathon’s failure and refusal to provide the environmental reports agreed to be provided in the “Master Amendment to Leases,” ....
Mr. Rodenbeck’s statement includes a legal argument and conclusion regarding what was owed under the Master Amendment and the Defendants’ failure to perform. The statement also lacks support for the causal assertion that a certain action was taken for certain reasons, and there is no foundation for Mr. Rodenbeck’s knowledge of what reports were or were not provided by the Defendants. The Court will grant the Motion to Strike as to the first part of the first sentence in Paragraph 9.
The Defendants challenge the following statement in Paragraph 10:
Based on the ages and physical conditions of Mr. Melehing and George Bitler and the status reports provided by Marathon, among other things, I believe that the Plaintiffs exercised reasonable diligence in ascertaining the environmental issues at Celina.
Mr. Rodenbeck’s statement asserts a legal argument regarding the Plaintiffs’ alleged exercise of reasonable diligence, and it lacks factual support. The statement regarding ascertaining environmental issues at the Celina, Ohio, property appears not to be relevant to the issues in this Motion for Partial Summary Judgment. The Court will grant the Motion to Strike as to the second sentence of Paragraph 10.
The Defendants challenge the following statements in Paragraph 11:
Based on my review of our records and my contacts with Marathon, it is my belief that Marathon’s practice was to not forward environmental reports to Mr. Melehing or anyone associated with him. I believe this failure is a breach of Paragraph 9 of the Master Amendment.
Mr. Rodenbeck’s statement regarding his review of records and contacts with the Defendants lacks factual support, and his statement about the Defendants’ document mailing practice is conelusory, speculative, and not within his personal knowledge. His statement regarding a breach of the Master Amendment is a legal conclusion. The Court will grant the Motion to Strike as to Paragraph 11.
2. The Melehing Affidavit
Mrs. Melehing is the widow of Mr. Melehing and the mother-in-law of Mr. Rodenbeck. The Defendants challenge the following statements in Paragraph 3 of the Melehing Affidavit:
There was a marked decline in the appearance of the properties after gasoline stations were closed and the underground storage tanks removed. Each of the buildings was boarded up and left to decay.
Considering the supporting evidence and the foundation laid, these statements appear to be made on the personal knowledge of Mrs. Melehing, and it appears that she is competent to testify on these matters. The Defendants are correct that her statements have inherent ambiguities, but those concerns relate to the credibility and the weight of the evidence, which the Court does not determine or weigh at this stage. The Court will deny the Motion to Strike as to these two sentences in Paragraph 3.
The Defendants challenge the following statements in Paragraph 4:
My husband’s physical and mental health deteriorated through the 1990s. He began having balance problems and experienced slips and falls. In 1996 he was diagnosed with depression. Around 1996 he also was diagnosed with early stages of Parkinson’s disease. By mid year 1999, he could no longer engage in any matters relating to his real estate business. He had difficulty making entries on the check book register. He lost the ability to do mathematical computations .... Based on my observations as his wife, he was easily influenced and without sufficient mental capacity to engage in his business dealings from 1996, when he was diagnosed with Parkinson’s disease forward, until his death in October 2005.
Although the record does not show that Mrs. Melching is qualified to provide a medical opinion regarding Mr. Melching’s physical and mental health, it appears that she has personal knowledge and is competent to testify as to what she observed regarding the deterioration of his physical and mental health, balance problems and slips and falls she witnessed, and the diagnoses of his illnesses. She appears to have personal knowledge and is competent to testify regarding her observation of his difficulty in making entries on a check book register. However, she is not competent or qualified to testify to the effect of any of Mr. Melching’s illnesses on his mental ability, his mental capacity, his ability to engage in business, his ability to perform mathematical computations, or his susceptibility to influence. The Court will grant the Motion to Strike as to the fifth, seventh, and ninth sentences of Paragraph 4.
The Defendants challenge the following statement in Paragraph 6:
As stated above, starting in the mid 90s, [Mr. Melching] became less and less able to undertake th[e] role [as the primary contact person for the Bitler/Melching leasehold group].
Mrs. Melching has personal knowledge and is competent to testify to what she observed regarding Mr. Melching’s performance of acts, but testimony regarding his mental ability to perform certain acts or functions goes beyond her personal knowledge and competence. To the extent that Mrs. Melching’s statement expresses her opinion that Mr. Melching lacked the mental ability or capacity to undertake this role, the Court will grant the Defendants’ Motion to Strike as to the second sentence in Paragraph 6.
The Defendants challenge the following statement in Paragraph 8:
Mr. Gilbert consistently held himself out as knowledgeable on all matters relating to gasoline station sites.... Mr. Gilbert repeatedly professed understanding of the [environmental] work [that outside environmental consultants] were doing and in fact was our sole contact person wit[h] these issues and all other issues concerning the sites.
It appears that Mrs. Melching has it within her personal knowledge and is competent to testify regarding how Mr. Gilbert held himself out to her, what his role was as a contact person, and what he conveyed as to the environmental work being performed at the properties. These statements are supported by her testimony that she talked with Mr. Gilbert numerous times on the telephone. The Court will deny the Motion to Strike as to these two sentences in Paragraph 8.
The Defendants challenge the following statements in Paragraph 9:
Because of our ages and inexperience with environmental issues, all four of us relied greatly on Mr. Gilbert and his explanations and status reports. We also relied greatly on his interpretation of his client’s obligations at the sites.
Mrs. Melching has the personal knowledge and competence to testify as to her inexperience and reliance on Mr. Gilbert and his explanations, status reports, and interpretations, but her conclusory statements regarding the inexperience of others and their reliance on Mr. Gilbert’s explanations, status reports, and interpretations lack supporting evidence. The Court will grant the Motion to Strike Paragraph 9 as it applies to individuals other than Mrs. Melching.
The Defendants challenge the following statements in Paragraph 10:
Mr. Gilbert presented Max and George with various documents through the nineties. I do not recall that he ever encouraged us to get independent advice about the documents.
To the extent that Mrs. Melching observed Mr. Gilbert present documents to Mr. Melching and Mr. Bitter, she has personal knowledge as to those facts, and she has personal knowledge and is competent to testify that she does not recall Mr. Gilbert encouraging them to get independent advice about the documents. The Court will deny the Motion to Strike as to Paragraph 10.
The Defendants challenge the following statements in Paragraph 11:
Mr. Gilbert repeatedly professed that as owners of the sites, Max and George, and to a lesser extent, Mary and I, faced serious liability if the properties were not brought to “EPA standards” as Mr. Gilbert told me. We took him at his word and were concerned that Marathon would not pay for the remediations.
Mrs. Melching has personal knowledge and is competent to testify regarding what Mr. Gilbert told her, how he told her, how she responded, and what her concerns were, but her conclusory allegations regarding others taking him at his word and being concerned lack supporting evidence. The Court will grant the Motion to Strike Paragraph 11 as it applies to individuals other than Mrs. Melching.
The Defendants challenge the following statements in Paragraph 12:
It was my understanding, based on statements of Mr. Gilbert, that under the terms of the leases and the law, Marathon would restore buildings that decayed after they were boarded up and would replace pavement and any other improvements damaged or removed as a result of Marathon’s need to remediate the properties. Specifically, he told me that Marathon would bring the buildings back to a condition equal or better than they were in when Marathon closed them. I remember that Mr. Gilbert paid for repairs at Ligonier in 1995[,] Sturgis in 1996, and at Hillsdale in 1998. The payment for those repairs lead [sic] Max and me to believe that Marathon would restore buildings as needed and would replace the pavement, as well as other losses that we might not discover until a later date.
Mrs. Melching has personal knowledge and is competent to testify regarding her understanding, her recollection, and her belief about what Mr. Gilbert told her and what occurred. Her allegation regarding what Mr. Melching believed lacks evidentiary support. The Court will grant the Motion to Strike Paragraph 12 as it applies to what Mr. Melching is alleged to have believed.
The Defendants challenge the following statements in Paragraph 13:
Mr. Gilbert sent me the “Agreement of Termination and Mutual Release of Lease” in December 1998 for the Hills-dale site. By that time, Max was unable to provide advice as to the legal significance of the various documents. I understood from Mr. Gilbert that our signatures were required on the documents, as written, to allow Superior Auto to begin leasing the site. Mr. Gilbert explained that we were not giving up any rights ... by signing the document and that Marathon would continue its uncompleted remediation efforts.
As to the Agreement and her communications with Mr. Gilbert, Mrs. Melching has personal knowledge and is competent to testify regarding her recollection of what Mr. Gilbert sent to her, what he explained to her, and what her understanding was. The Defendants are correct that details related to her statements are missing, but this concerns the credibility and the weight of the evidence, which the Court does not determine or weigh at this stage. However, Mrs. Melching’s testimony regarding Mr. Melching’s inability to provide advice regarding the legal significance of documents, which expresses her opinion that Mr. Melching lacked the mental ability or capacity to perform certain cognitive or analytical functions, goes beyond her personal knowledge and competence. The Court will grant the Defendants’ Motion to Strike as to the second sentence in Paragraph 13.
The Defendants challenge the following statements in Paragraph 14:
We were repeatedly assured in the mid nineties that the site was clean, although Emro did not share the environmental reports being generated on the site with us. On August 19, 1999, we received an overnight package from Marathon about the Monroe site. In that letter, a Cynthia Snyder informed us that Marathon would no longer pay rent at the site and requested that we sign a termination document.... I did not know Ms. Snyder but she did represent again that the Monroe site was a clean site. The letter she sent states that the overnight package had three lengthy environmental documents. If I looked at those documents, neither Max nor I would have understood them.... Based on all the circumstances of the signing of that document I do not believe that any of the four of us understood its purpose.
Mrs. Melching has personal knowledge and is competent to testify regarding her recollection of what she was told, what documents she received, and what her understanding was. What documents others received and what others understood documents to mean or their purpose are beyond her personal knowledge and competence without additional supporting evidence, which is lacking here. The Defendants are correct that some of her statements lack details, but this concerns the credibility and the weight of the evidence, which the Court does not determine or weigh at this stage. To the extent that the contents of Ms. Snyder’s August 18, 1999, letter are an issue, the Court will, consistent with Federal Rule of Evidence 1002, consider the letter itself, which is attached to Mr. Gilbert’s Third Affidavit. To the extent that Mrs. Melching’s statements offer opinions about what documents others received and what they would or would not have understood, the Court will grant the Motion to Strike Paragraph 14.
The Defendants challenge the following statements in Paragraph 15:
In August 2000, Mr. Gilbert sent me a letter requesting permission to tear down the Monroe building, which he stated in the letter to be “demanded.” He did not mention to me that the release signed earlier had released Marathon from liability for the condition of the building and any responsibility for tearing it down. To the contrary, he had continually informed us that Marathon had not properly maintained the buildings and that there were outstanding building obligations.... I could not review the document with either Max or George because of the declining physical and mental health of both of them, which I believe was understood by Mr. Gilbert.
Mrs. Melching has personal knowledge and is competent to testify regarding her recollection of what she was told, what documents she received, and what her understanding was. Although her statements do not provide some details, that is a matter of credibility and evidentiary weight, which the Court does not determine or weigh at this stage. Her assertion about her inability to review the document with Mr. Melching and Mr. Bitler because of their declining physical and mental health and her assertion of Mr. Gilbert’s understanding of Mr. Melching’s and Mr. Bitter’s physical and mental health lack evidentiary support and extend beyond her personal knowledge and competence. The Court will grant the Motion to Strike as to the last sentence of Paragraph 15.
The Defendants challenge the following statements in Paragraph 17:
On November 7, 2000, Mr. Gilbert responded. His response is attached as Exhibit 1. From his responses, I understood Mr. Gilbert to be reaffirming his earlier conversations with me that the buildings would be restored and pavement replaced. I also understood from the letter that he was agreeing that Marathon had let the properties decay but that Marathon intended to make us whole. Because he worked for such a large company, ... I believed ....
Mrs. Melching has personal knowledge and is competent to testify regarding her recollection and understanding of Mr. Gilbert’s response. The lack of details the Defendants emphasize is a matter of credibility and evidentiary weight. The Court will deny the Motion to Strike these statements in Paragraph 17.
The Defendants challenge the following statements in Paragraph 18:
By December 1998, when the environmental documents relating to Sturgis apparently were generated, neither Max Melching nor George Bitter had the energy or experience to deal with them.
Mrs. Melching’s conelusory statements regarding the energy and the experience of Mr. Melching and Mr. Bitter “to deal with” environmental documents related to the Sturgis property lack supporting evidence, are speculative, and extend beyond her personal knowledge and competence. The Court will grant the Motion to Strike Paragraph 18.
The Defendants challenge the following statements in Paragraph 19:
I believe that Mr. Gilbert was well aware that both Max and George were failing both physically and mentally by the mid to late 1990s. He had enough communication with Max, and then me, to be apprised of the health problems we were experiencing.
Mrs. Melching has personal knowledge and is competent to testify regarding her communication with Mr. Gilbert regarding health problems Mr. Melching was experiencing, but her conelusory statements about Mr. Gilbert’s awareness of Mr. Melching’s and Mr. Bitter’s physical and mental health and Mr. Gilbert’s communications with Mr. Melching lack evidentiary support, are speculative, and extend beyond her per