Laflamboy v. Landek

• Decision Date: 20 November 2008
• Docket Number: No. 05 C 4994.,05 C 4994.
• Citation: 587 F.Supp.2d 914
• Parties: John LAFLAMBOY, Plaintiffs, v. Steven LANDEK, Kenneth DeVries, Steven Reynolds, Adriana Mazutis, Fred Pascente, Vincent Cainkar, John Curry, Joseph Kaput, Butch Sloan, Allan Gustafson and the Village of Bridgeview, Defendants.
• Court: U.S. District Court — Northern District of Illinois

587 F.Supp.2d 914

John LAFLAMBOY, Plaintiffs, v. Steven LANDEK, Kenneth DeVries, Steven Reynolds, Adriana Mazutis, Fred Pascente, Vincent Cainkar, John Curry, Joseph Kaput, Butch Sloan, Allan Gustafson and the Village of Bridgeview, Defendants.

No. 05 C 4994.

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

November 20, 2008.

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Richard S. Zachary, Law Office of Richard S. Zachary, Dennis Alan Berkson, Dennis A. Berkson & Associates, Ltd., Chicago, IL, Cheryl Ann Schroeder, Cheryl Schroeder Attorney at Law, Summit, IL, Michael D. Ettinger, Ettinger, Besbekos, Parisi, Palos Hills, IL, for Plaintiffs.

Denice A. Gierach, The Gierach Law Firm, Naperville, IL, Edward J. Burke, Adriana R. Gabriel, Mary Patricia Burns, Vincent Dominick Pinelli, Burke, Burns & Pinelli, Ltd., Thomas P. Walsh, United States Attorney's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

Before the Court are four motions for summary judgment—in each case, the parties move as to all counts that name them. Defendants Steven Landek, John Curry, Joseph Kaput, Butch Sloan, and Steven Reynolds, (the "Village Defendants"), along with Defendant the Village of Bridgeview (the "Village"), move for summary judgment on Counts I, II, and III and also move to strike Plaintiff's responses to their Rule 56.1 Statement. (R. 415-1.) Defendant Vincent Cainkar ("Cainkar") separately moves for summary judgment as to Counts II and III; Defendant Allan Gustafson ("Gustafson") moves for summary judgment as to Counts II, III, and IV; and Defendant Kenneth DeVries ("DeVries") separately move for summary judgment as to Counts II and V. For the reasons discussed below, the Court grants summary judgment in part on Count I, denies summary judgment as to Count II; grants summary judgment on Count III as to all Defendants; and denies summary judgment as to Counts IV and V. In addition, the Court grants in part and denies in part the Village Defendants' motion to strike.

BACKGROUND

I. Procedural Posture—Fourth Amended Complaint

Plaintiff John LaFlamboy's Fourth Amended Complaint ("FAC") asserts five causes of action against varying Defendants.¹

First, Count I alleges a civil Racketeer Influenced and Corrupt Organizations Act ("RICO") claim, pursuant to 18 U.S.C. § 1964(c), against the Village Defendants, Steven Reynolds, and Fred Pascente (collectively, "the RICO Defendants").² Plaintiff asserts in Count I that beginning in May 1999, and extending through at least October 2005, the RICO Defendants violated RICO, 18 U.S.C. § 1962(c), by participating in a pattern of racketeering activity involving Plaintiff's former business, the World Golf Dome ("WGD").

In Count II, Plaintiff alleges that the RICO Defendants, along with Defendants Allan Gustafson, Vincent Cainkar, Kenneth DeVries, and Adriana Mazutis violated 18 U.S.C. § 1962(d) by conspiring to violate RICO.³ In particular, Plaintiff alleges that these Defendants agreed and conspired "to engage in a pattern of racketeering activity with the intention of cheating, defrauding, and otherwise forcing the Plaintiff to give up his ownership and control of the WGD." (R. 299-1, Fourth Am. Compl. ¶ 86.) In Count III, Plaintiff asserts a 42 U.S.C. § 1983 claim, alleging that the RICO Defendants and the Village violated Plaintiff's constitutional rights, including his Fifth Amendment right not to be deprived of property without just compensation; and his Fourteenth Amendment right not to be deprived of property or livelihood without due process of law. In essence, Plaintiff alleges 1) that the Village Defendants' practice of issuing citations, denying permits, and conducting unwarranted inspections interfered with Plaintiff's business; and 2) the Village Defendants' schemes to obtain control of the WGD forced Plaintiff to give up his rights to his property. Plaintiff argues that 42 U.S.C. § 1983 entitles him to damages for these Constitutional violations.

Additionally, Plaintiff asserts a breach of fiduciary duty claim (Count IV) against Defendant Gustafson. Plaintiff and Gustafson formerly partnered in connection with the WGD, and Count IV alleges that has Defendant Gustafson breached his fiduciary duty to Plaintiff in connection with their partnership.

Finally, in Count V, Plaintiff alleges a state law breach of contract claim against Defendant DeVries. Plaintiff contends that DeVries breached a rental agreement entered into by DeVries and Plaintiff concerning leasing of space at the WGD.

II. The Parties' Rule 56.1 Statements of Fact

When determining summary judgment motions, the Court derives the background facts from the parties' Local Rule 56.1 statements. Local Rule 56.1 assists the Court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Pursuant to Local Rule 56.1(a)(3), the moving party must provide a concise "statement of material facts as to which the moving party contends there is no genuine issue." (L.R. 56.1); Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). The non-moving party must respond by admitting or denying each and every factual statement proffered by the moving party with specific references to the record. Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). Should the non-moving party fail to do so, the court may deem all well-supported facts set forth in the movant's statement to be admitted. See Ciomber, 527 F.3d at 644; Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 810 (7th Cir.2005); Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir.2005). ("The district court was entitled to take these facts as uncontested, as the local rule provides"); Scott v. Edinburg, 346 F.3d 752, 759 (7th Cir.2003).

The operative phrase here is "well-supported." Specifically, litigants must support facts with specific references to the record and evidence admissible at trial. As such, the Court may opt to disregard facts presented in a manner that does not comply with Rule 56.1. See Ciomber, 527 F.3d at 643; see also Roger Whitmore's Auto. Serv., Inc. v. Lake County, 424 F.3d 659, 664 n. 2 (7th Cir.2005) ("It is not the duty of the district court to scour the record in search of material factual disputes ....") (collecting cases). In addition, the Court will not consider documents that would not be admissible at trial when ruling on summary judgment. See Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir.2008); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.1997). A district court is "entitled to expect strict compliance" with Rule 56.1. See, e.g., Ciomber, 527 F.3d at 643; Cichon, 401 F.3d at 809 (collecting cases); Ammons, 368 F.3d at 817 (quoting Bordelon, 233 F.3d at 527).

A. Plaintiff's Response to Defendant Gustafson's Rule 56.1 Statement

Plaintiff failed to timely respond to Defendant Gustafson's Undisputed Statements of Material Fact. Plaintiff attempted to file a response to Defendant Gustafson's Rule 56.1 statement (R. 396-1), but did so eight days after the court-imposed deadline of July 22. (R. 342-1.) As such, and based on the Plaintiff's pattern of dilatory filings, repeated inattention to Court orders, non-compliance with Court rules, and misrepresentation, the Court denied Defendant's motion to file these documents instanter. (R. 398-1.) The Court deems all of Gustafson's well-supported statements of fact admitted. Ciomber, 527 F.3d at 644; Cichon, 401 F.3d at 810; Schrott, 403 F.3d at 944.

B. Plaintiff's Response to Defendant Cainkar's Rule 56.1 Statement

In response to nearly all of Cainkar's statements of fact, Plaintiff merely denies the statement without proffering "specific references" to the record to support his general denials as required by Rule 56.1. Plaintiff attempted to file an amended response to Cainkar's Statement (R. 391-1), but the Court struck that entry as dilatory and non-compliant. (R. 403-1.) As such, Plaintiff has admitted each of the supported facts in Cainkar's Rule 56.1 Statement at paragraphs 5-7, 10, and 12-63. Despite the Village Defendants' argument to the contrary, however, facts deemed admitted by Plaintiff for the purpose of Defendant Cainkar's motion for summary judgment are not deemed admitted for the purpose of the Village Defendants' motion. The Village Defendants must meet their own respective burdens.

C. The Village Defendants' Rule 56.1 Statement

Defendants attack Plaintiff's Rule 56.1 statements in both their respective summary judgment papers and in the Village Defendants' motion to strike. Having fully considered Defendants' arguments, the Court largely agrees that Plaintiff has fallen far short of his Local Rule 56.1 obligations. The Village Defendants, however, are not without fault.

To begin with, the parties routinely cited exhibits that went unauthenticated either by deposition testimony or affidavit. Rule 56(e) requires that documents be "authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Scott, 346 F.3d at 759-760, n. 7 (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2722, at 379-80 &amp 382-84 (1998)). This requirement applies to all documentary exhibits, including, for example, expert reports. See Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir.2003) (excluding on summary judgment an expert report that was introduced "without any supporting affidavit verifying its authenticity.").

Next, both Plaintiff and the Village Defendants routinely relied on hearsay evidence. But "hearsay is inadmissible...