712 F.3d 1166 (7th Cir. 2013), 11-1327, Modrowski v. Pigatto

Docket Nº:11-1327.
Citation:712 F.3d 1166
Opinion Judge:WOOD, Circuit Judge.
Party Name:Leon MODROWSKI, Plaintiff-Appellant, v. John PIGATTO, Frank Pigatto, Taq Properties, LLC, and Capps Management, Defendants-Appellees.
Attorney:Lisa M. Stauff, Chicago, IL, for Plaintiff-Appellant. Anthony J. Peraica, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before KANNE, WOOD, and SYKES, Circuit Judges.
Case Date:April 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1166

712 F.3d 1166 (7th Cir. 2013)

Leon MODROWSKI, Plaintiff-Appellant,


John PIGATTO, Frank Pigatto, Taq Properties, LLC, and Capps Management, Defendants-Appellees.

No. 11-1327.

United States Court of Appeals, Seventh Circuit.

April 8, 2013

Argued Nov. 28, 2012.

Page 1167

Lisa M. Stauff, Chicago, IL, for Plaintiff-Appellant.

Anthony J. Peraica, Chicago, IL, for Defendants-Appellees.

Before KANNE, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

A party that does not bear the burden of persuasion may move for summary judgment " by ‘ showing’ — that is, pointing out to the district court— that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If, after an adequate opportunity for discovery, " the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994) (emphasis in original) (citations omitted). This is not an onerous burden, yet " [d]espite the rudimentary nature of their task, parties served with summary judgment motions often misconceive what is required of them." Id. at 921. As this case aptly demonstrates, such misunderstandings can have harsh consequences for litigants.


Leon Modrowski's tenure as a property manager for TAQ Properties and Capps Management came to a contentious end in 2008. Allegedly in retaliation for Modrowski's unwillingness to skimp on important building repairs, the defendants (TAQ, Capps, and John and Frank Pigatto) fired Modrowski, withheld $11,000 in wages, had Modrowski jailed, and locked Modrowski out of his personal Yahoo email account. This final affront— apparently enabled by Modrowski's ill-advised decision to merge his personal email account with that of his employers— is the focus of this dispute.

In November 2009, Modrowski sued in federal court, challenging the defendants' refusal to relinquish control over his personal email account. The district court issued a temporary restraining order, but apparently it acted too late. Upon regaining access to his account, Modrowski discovered that several years' worth of his personal correspondence had vanished. Modrowski alleges that the defendants' conduct violated the Stored Wire and Electronic Communications Act (18 U.S.C. § 2701), the Federal Wire Tapping Act (18 U.S.C. § 2511), and the Computer Fraud and Abuse Act (18 U.S.C. § 1030). His complaint also asserts a handful of state-law claims.

The defendants initially moved to dismiss all of Modrowski's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion in part, dismissing the first two federal claims with prejudice since Modrowski acknowledged that he voluntarily linked his personal account with the defendants' business

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account. This concession was fatal to both claims, the court concluded, and Modrowski does not challenge this decision on appeal. The district court dismissed Modrowski's Computer Fraud and Abuse Act claim on a different ground: the complaint failed to allege an injury of at least $5,000, as required for any civil action under the statute. See 18 U.S.C. § 1030(c)(4)(A)(i)(I); (g). The district court dismissed this claim without prejudice, affording Modrowski the opportunity to elaborate on the economic harm caused by the defendants' actions.

When Modrowski returned in July 2010 with his first amended complaint, the defendants moved for summary judgment. The window for fact discovery had closed a month earlier, and neither party had asked the court for an extension. The record at that point, defendants urged, had " a complete lack of proof concerning all of the essential element[s] of the counts contained in Plaintiff's First Amended Complaint." Since Modrowski would be unable to prove his claims at trial, the defendants argued, summary judgment in their favor was required.

Rather than coming forward with evidence to support the allegations in his complaint or asking the court for more time, Modrowski responded by attacking perceived deficiencies of the defendants' motion. Specifically, Modrowski pointed out that the defendants' motion " d[id] not contain a Local Rule 56.1 Statement, cite to any admissible evidence, or cite to any supporting authority for the substantive law of the case." As Modrowski saw it, he bore no obligation to respond to such a defective summary judgment motion because the defendants " had not met their initial burden as movants." Modrowski chose instead to construe the defendants' motion as a second Rule 12(b)(6) motion to dismiss. Over the course of nine pages, he explained how his factual allegations satisfied every element of each of his six claims.

The district court was not swayed by Modrowski's argument. Noting Modrowski's failure to offer " any evidence in response to defendants' motion, let alone evidence sufficient to raise a triable issue of fact," it granted summary judgment to the defendants on Modrowski's Computer Fraud and Abuse Act claim. The court then relinquished jurisdiction over the state law claims and terminated the case.


On appeal, Modrowski renews the same argument he made to the district court, insisting that his obligation to point to evidence in his favor was never triggered, because the defendants failed to meet their initial burden of production.

Federal Rule of Civil Procedure 56 imposes an initial burden of production on the party moving for summary judgment to inform the district court why a trial is not necessary. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Where the nonmovant bears the ultimate burden of persuasion on a particular issue, however, the requirements that Rule 56 imposes on the moving party are not onerous. It does not require the moving party to " support its motion...

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