Doherty v. Fed. Deposit Ins. Corp.

• Decision Date: 25 March 2022
• Docket Number: 18-cv-0703
• Parties: Patrick J. Doherty, Plaintiff, v. Federal Deposit Insurance Corporation, as Receiver for Washington Federal Bank for Savings, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

Patrick J. Doherty, Plaintiff, v. Federal Deposit Insurance Corporation, as Receiver for Washington Federal Bank for Savings, et al., Defendants.

No. 18-cv-0703

United States District Court, N.D. Illinois, Eastern Division

March 25, 2022

MEMORANDUM OPINION AND ORDER

Joan B. Gottschall, United States District Judge

Defendant Federal Deposit Insurance Corporation, as receiver for Washington Federal Bank for Savings (“the FDIC”) moves for summary judgment on plaintiff Patrick J Doherty's (“Doherty”) fraud claims under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 Ill. Comp. Stat. § 505/1 et seq., alleged in Counts III and IV of his second amended complaint. The FDIC seeks summary judgment on the damages and proximate causation elements of these claims. Doherty filed a memorandum of law opposing the motion, ECF No. 98, but no response to the FDIC's Local Rule 56.1(a)(3) statement of undisputed material facts. For the reasons that follow, the court grants the motion in part and denies it in part.

I. Summary Judgment Standard and Evidence

A. Rule 56 Standard

Doherty recites the Illinois summary judgment standard in his response to the FDIC's motion. ECF No. 98 at 2. “Under the Erie doctrine, federal courts in diversity cases (and any other cases in which state law supplies the rule of decision) apply state ‘substantive' law but federal ‘procedural' law.” Gacek v. Am. Airlines, Inc., 614 F.3d 298, 301 (7th Cir. 2010) (citing Gasperini v. Center for Humans., 518 U.S. 415, 427 (1996)) (other citations omitted). Consistent with the Erie doctrine, “Federal courts may grant summary judgment under Rule 56 on concluding that no reasonable jury could return a verdict for the party opposing the motion, even if the state would require the judge to submit an identical case to the jury.” Mayer v. Gary Partners & Co., Ltd., 29 F.3d 330, 334 (7th Cir. 1994) (quoting McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990)); see also Whitlock Corp. v. Deloitte & Touche, L.L.P., 233 F.3d 1063, 1065 (7th Cir. 2000); but see Gacek, 614 F.3d at 301-03 (holding state summary judgment rule was substantive under Erie). As Doherty provides no argument that the state summary judgment cases he cites articulate a substantive rule under Erie such that they defeat application of the federal summary judgment standard, see Resp. 2, ECF No. 98, this court applies Rule 56.

Rule 56 provides that summary judgment must be entered “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). “In making that determination, a court must view the evidence ‘in the light most favorable to the opposing party.' ” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)) (other citation omitted). A genuine dispute exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The underlying substantive law governs whether a factual dispute is material: ‘irrelevant or unnecessary' factual disputes do not preclude summary judgment.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (quoting Anderson, 477 U.S. at 248). Hence, summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted).

The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Id. at 323; Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (explaining that Rule 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” (citation omitted)). After “a properly supported motion for summary judgment is made, the adverse party must” go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quotation omitted); see also Modrowski, 712 F.3d at 1169 (stating party opposing summary judgment “must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor” (citations and quotations omitted)).

B. The Parties' Local Rule 56.1 Fact Statements and Summary Judgment Evidence

This court's Local Rule (LR) 56.1 specifies the procedure for presenting facts a party contends are undisputed and material. The formal requirements of LR 56.1 aid the just, speedy, and inexpensive resolution of litigation by ensuring that “the facts material to the issues in the case and the evidence supporting such facts are clearly organized and presented for the court's summary judgment determination.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015). The Seventh Circuit has therefore “routinely upheld the district court's discretion in requiring parties to comply strictly with local rule requirements.” Id. (quoting Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)). The Supreme Court and the Seventh Circuit have “made clear that even pro se litigants must follow” the Federal Rules of Civil Procedure and this court's LR 56.1. Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (citing McNeil v. United States, 508 U.S. 106, 113 (1993) (affirming decision to enforce LR 56.1 strictly against a pro se plaintiff)); accord Wilson v. Kautex, Inc., 371 Fed.Appx. 663, 664 (7th Cir. 2010) (“[S]trictly enforcing Local Rule 56.1 was well within the district court's discretion, even though Wilson is a pro se litigant.” (citations omitted)).

Doherty, a licensed attorney, represents himself. See Def.'s Statement of Material Facts (“SOF”) ¶ 24, ECF No. 93. The FDIC served him with the notice to pro se parties regarding summary judgment procedure required by this court's LR 56.2. ECF No. 96. The notice warned Doherty of the consequences of failing to respond to the FDIC's LR 56.1(a)(3) statement of undisputed material facts: “If you do not respond to a fact asserted by the defendant, the judge may decide that you have admitted that the fact is true.” ECF No. 96 at 2. Yet Doherty filed no response to the FDIC's LR 56.1(a)(3) fact statement and no statement of additional facts allowed by LR 56.1(b)(3). Consequently, the facts set forth in the FDIC's LR 56.1(a)(3) statement of undisputed material facts are “deemed to be admitted” for summary judgment purposes, though the court continues to view those facts in the light most favorable to Doherty. LR 56.1(b)(3)(C); see also, e.g., Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 411, 414-15 (7th Cir. 2019); Cracco, 559 F.3d at 632 (citing Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003)).

Doherty attached seven exhibits to his memorandum of law opposing summary judgment. ECF No. 98-1 through 98-7. He cites them directly throughout the memorandum. See ECF No. 98. The exhibits consist primarily of loan documents and court filings, plus Doherty's purported affidavit and a handwriting expert's report. See ECF Nos. 98-1 thru 98-7.

A “district court is entitled to limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' statements” of undisputed material fact. Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000) (citations omitted). This court also has discretion to disregard all of Doherty's citations bypassing the LR 56.1 statements and directly citing the summary judgment exhibits. “The rule in this district that summary judgment memoranda must cite the Local Rule 56.1 fact statements is well settled and need not be belabored.” Magee v. McDonald's Corp., 2019 WL 10447014, at *4 (N.D. Ill. Mar. 28, 2019) (citing Mervyn v. Nelson Westerberg, Inc., 142 F.Supp.3d 663, 664-65 (N.D. Ill. 2015), which collects over 20 cases for this proposition).

As a matter of discretion, the court declines to consider exhibits A, B, and G (ECF Nos. 98-1, 98-2, and 98-7) to Doherty's memorandum. Exhibits C and E (ECF Nos. 98-3 and 98-5) will be considered because they duplicate exhibits cited by the FDIC in its LR 56.1(a)(3) statement of undisputed material facts. See SOF ¶ 9 (citing ECF No. 36 at 12-19).

Exhibit D is a copy of the third superseding indictment in United States v. Kowalski, et al., No. 19-CR-226 (N.D. Ill. Feb. 25, 2021). ECF No. 98-4. A fourth superseding indictment has since been returned. Kowalski, No. 19-CR-226, ECF No. 534 (N.D. Ill.Dec. 7, 2021). The court may take judicial notice of an indictment's accusations. See, e.g., Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943 (7th Cir. 2012). Although the court takes judicial notice of the fourth superseding indictment, the court does not rely on it as evidence of the facts it alleges or the truth of any of the accusations therein.^[1] See Id. (explaining that it was proper to take judicial notice of an indictment and other documents for “the indisputable facts that those documents exist, they say what they say, and they have had legal consequences. The district court did not rely on the documents as proof of disputed facts in any other sense.”).

Doherty's affidavit (Pl.'s Ex. F, ECF No. 98-6) cannot be considered for a more fundamental reason: “an affidavit is admissible in a summary judgment proceeding only if it is sworn to before an officer authorized to administer an oath such as a notary public.” Trapaga v. Cent. States Joint Bd. Loc. 10, 2007 WL 1017855, at *2 (N.D. Ill. Mar. 30,...