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The Indiana Court of Appeals will travel to Indiana Wesleyan University to hear oral arguments on a case involving an excavation company that allegedly defamed members of a local engineering union.
Chief Judge Robert Altice Jr., Judge Cale Bradford, and Judge Dana Kenworthy will hear the Nov. 21 arguments beginning at 11 a.m. in the Phillipe Performing Arts Center on the Indiana Wesleyan campus.
Those unable to attend can watch it online.
According to court documents, in 2017, members of the Local 150 chapter of the International Union of Operating Engineers were engaged in ambulatory picketing of Davis & Sons Excavation LLC in Valparaiso.
Patrick B. McEuen, attorney for the excavating company, sent the following statement to the Indiana Lawyer via email:
“The entire Davis family is grateful that the Indiana Court of Appeals has agreed to hear this interlocutory appeal. Obviously, Local 150 of the International Operating Engineers Union has filed a Strategic Lawsuit Against Public Participation, attempting to block Marc Davis from making a public response to the 12-foot inflatable rat they park in front of his office and union agitators following his wife and children from their home, driving to school in the morning. While no anti-SLAPP motion was filed as provided in IC 34-7-7-1 et seq., we believe this interlocutory appeal will accomplish the same result, albeit less timely than with an anti-SLAPP motion. There are many ways for the Court of Appeals to affirm Marc Davis’ free speech rights, including by ruling that Marc Davis’ sign does not include ‘objectively verifiable statements of fact’ regarding any of the named Union employees alleging defamation. At the end of the day, we are confident the Court will carefully weigh the free speech rights of all the parties, and Marc Davis will be vindicated. A small business owner should never be concerned that he or she cannot speak freely and truthfully, in the midst of concerted activity by a union.”
Attorneys for the union did not respond to Indiana Lawyer’s request for comment before Friday’s deadline.
The original complaint, filed in October 2017 in Porter Superior Court, said that for at least two months, members of the union had been blocking the ingress and egress lanes to the entrance of the excavating company while picketing.
The plaintiffs argued the union’s picketing was dangerous because it blocked the lanes and the visibility of drivers turning onto the nearby highway from the Davis property.
They also said members of the union were stalking Davis employees and reportedly posted a sign outside the business saying the union was stalking members of the business owner’s family.
According to the lawsuit, the union’s actions were “all taken with an intent to harass these individuals and not engage in legitimate protest as allowed by the 1st amendment to the U.S. Constitution.”
The union, in turn, sued the company for defamation.
The appellants, Davis & Sons, moved for summary judgment, asserting the truth is a defense to a claim of defamation and designated materials, which appellants said proved that members of the union stalked the family.
The union designated materials, claiming it created an issue of material fact.
In response, the company filed a motion to strike, arguing the union’s response and designated materials were untimely filed.
The trial court denied both the company’s motions.
The appellate court will hear arguments on whether the trial court erred in denying the company’s motions to strike and for summary judgment.
The case is Davis & Sons Excavating LLC v. International Union of Operating Engineers Local 150, et al., 24A-PL-808.
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