Curran v. Kwon
| Decision Date | 20 August 1998 |
| Docket Number | No. 97-2713,97-2713 |
| Parties | Elizabeth CURRAN, Plaintiff-Appellant, v. Ho Sung KWON, also known as Alex Kwon, Revlon International Corporation, Jeremy Foster-Fell, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John J. Henely (argued), Chicago, IL, for Plaintiff-Appellant.
Richard P. Campbell (argued), Campbell & DiVencenzo, Chicago, IL, for Defendant-Appellee Kwon.
William P. Richmond, Sidley & Austin, Chicago, IL, Theodore J. Theophilos, Sidley & Austin, New York City, for Defendant-Appellant Revlon International Corporation.
Leonard Ring, Ring & Associates, Oakbrook, IL, for Defendant-Appellee Foster-Fell.
William P. Richmond, David B. Johnson (argued), Sidley & Austin, Chicago, IL, Theodore J. Theophilos, Sidley & Austin, New York City, for Defendant-Appellant Revlon Incorporated.
Before BAUER, RIPPLE and ROVNER, Circuit Judges.
In this diversity case, Elizabeth Curran ("Curran") sued Ho Sung Kwon ("Kwon"), Jeremy Foster-Fell ("Foster-Fell") and Revlon International Corporation ("Revlon") alleging fraudulent misrepresentation, negligence and false arrest. When the defendants produced a release she had executed, discharging them from any claim she may have against them, she responded that she had signed the release under duress. The district court held that she did not demonstrate duress, however, and granted summary judgment to the defendants. For the reasons explicated below, we affirm the judgment of the district court.
The facts in this case are undisputed. 1 In March 1982, Kwon was infatuated with Elizabeth Curran, a 26 year-old professional model whom he had seen working at a New York nightclub. In vain he attempted to develop a romantic relationship with her. Undaunted, however, with Foster-Fell's help Kwon devised an elaborate plan to win her heart, or at least her interest. They notified Curran of a fictitious modeling contest, supposedly sponsored by Revlon and supervised by Kwon. Curran "won" the New York competition; for the next stage of the nonexistent contest, she flew to Paris, accompanied by Kwon. When Curran arrived in Paris, however, and realized that there was only one hotel room for herself and Kwon, she refused to share the room with him. Kwon agreed to leave the room but asked Curran if he could leave an envelope containing his passport and $1,200 because he did not want to carry so much money with him.
The next morning, March 28, 1982, Curran, hoping to book a flight home, left the hotel with Kwon's envelope and went to the airport. She claims she kept the envelope because Kwon had left it in her care; she used some of the money to pay for her plane ticket back to the United States. When Kwon returned to the hotel room and discovered that his property was gone, however, he contacted the hotel manager, who in turn notified the police. Curran was arrested at the airport and held overnight on a charge of theft.
The next day, March 29, a preliminary hearing was held. At the hearing, Kwon testified that he only wanted his money and passport returned and that he did not want to press charges. Despite his request that charges be dropped, the French prosecutor set a trial for two days later. He did grant Curran a release from custody for the interim days, however. In the meantime, her boyfriend had contacted an attorney and friend in Chicago named Jerrold Morris, who in turn engaged a Paris attorney, Patrick Bernard, to represent Curran. Before the trial she stayed at the home of Dana Haviland, a French attorney practicing with Mr. Bernard. Her father flew to Paris to assist her as well.
At the trial two days later, March 31, Kwon again testified on Curran's behalf. He stated that he did not want Curran to be prosecuted and that he had withdrawn his complaint once he had recovered his passport and money. Curran was acquitted.
The day after Curran's acquittal, April 1, she and her father were in his Paris hotel room when her French lawyer, Bernard, arrived and presented to her a proposed release drawn up as a result of negotiations between Kwon's lawyers and Curran's lawyers. 2 Under the terms of the release, Curran was to be paid $10,260, and Kwon and Revlon in turn were to be released from any claim which might be brought by Curran based on the bogus modeling contest. Curran's father and her Paris lawyer advised her to accept the offer in the release. After consulting with her Chicago attorney as well, Curran signed the release on April 1 and left Paris. At no time did Kwon contact her concerning the release.
The next day, Kwon tendered the payment of $10,260 by placing it in a specified account, as agreed. However, soon after Curran returned to the United States, she disavowed the release. Her father returned the payment to Kwon's attorney 3 and her Paris attorney refused to deliver the original copy of the signed release. 4
Almost a year later, Curran filed suit against Kwon, Foster-Fell and Revlon, alleging negligence, fraudulent misrepresentation and false arrest. Kwon filed his motion for summary judgment, claiming that Curran had executed a release of all claims against him. Curran responded that, because she signed the release under duress, the release was voidable by her and therefore did not bar her claim against Kwon.
On April 12, 1993, the district court granted Kwon's motion for summary judgment on the ground that the release signed by Curran was valid and enforceable. 6 In its analysis, the court followed Illinois choice-of-law principles and applied the law of France, the jurisdiction where the release was executed. It noted that, under French law, a release of a private tort claim may be made by a "compromise settlement." R.365 at 6. However, if the party consents to the release under duress, or, in French law, "violence," the contract may be rescinded. To establish "violence," the court explained, a party must show "the presence of a threat of considerable and present harm to person or property." Id. at 8. The court determined that Curran failed to demonstrate the presence of any threat of harm. In the first place, because she did not file a Local Rule 12(N) statement, the facts of record in the court are those taken from Kwon's uncontested Rule 12(M) statement, which contains no assertions of threats. Nevertheless, even when the district court considered Curran's facts, as asserted in her memoranda and deposition, it concluded that her version of the facts did not establish "violence." Curran reported that she was tired, confused and generally fearful during her stay in Paris; the court found that these claims, if true, did not rise to the requisite threat of considerable and present harm that would force Curran to assent to the release. Curran also claimed that she was afraid she might be prevented from leaving Paris if she did not sign the release; however, noted the court, such an argument lacked any foundation in the record. She had been acquitted the day before she was presented with the release and, according to the court, could not reasonably have believed that her leaving Paris was contingent upon her executing the release. The court further recognized that Curran signed the document after receiving advice, not coercive pressure, from her father and her attorneys. The court concluded that there was no genuine issue of material fact regarding Curran's assent when she signed the release. Because she could not establish "violence," the court held that the release was valid. Therefore it granted summary judgment to Kwon. 7
We review a district court's grant of summary judgment de novo and shall affirm its ruling if the party seeking summary judgment has demonstrated, through its pleadings and the depositions, answers to interrogatories, admissions and affidavits it has filed, that no genuine issue of material fact exists for trial and that the movant is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An appellate court reviewing a grant of summary judgment pursuant to Rule 56 views all the facts in the record and draws all reasonable inferences in favor of the nonmoving party. However, we require the nonmoving party to present more than mere allegations; he must set forth specific facts showing a genuine issue for trial. See Fed.R.Civ.P. 56(e); Smith on Behalf of Smith v. Severn, 129 F.3d 419, 425 (7th Cir.1997).
In this case, Curran violated Rule 12(N) of the Northern District of Illinois Local Rules by failing to respond to Kwon's statement of uncontested facts which was submitted as required by Local Rule 12(M). 8 Rule 12(N) not only requires a response but also informs the opposing party of the repercussions of failure to respond: "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." No. Dist. Ill. Local Gen. R. 12(N)(3)(b). Because Curran failed to submit a responsive Rule 12(N) statement, we have no challenge by her to any of the statements of material facts proffered by Kwon and no additional facts which might support a denial of summary judgment. She therefore is deemed to have conceded the truth of all of Kwon's properly supported factual averments in his Rule 12(M) statement. See Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 412 (7th Cir.1997). Therefore,
the court will refuse to consider any facts contradicting the 12(M) statement as not properly before it and will view the 12(M) statement and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. In other words, Rule 12(N) penalizes the nonmoving party by limiting the scope of facts a court may take into account in...
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