Levin v. Grecian

• Decision Date: 31 May 2013
• Docket Number: No. 12 C 767.,12 C 767.
• Citation: 974 F.Supp.2d 1114
• Parties: Ken F. LEVIN, Plaintiff, v. Alexander GRECIAN, Defendant.
• Court: U.S. District Court — Northern District of Illinois

974 F.Supp.2d 1114

Ken F. LEVIN, Plaintiff,

v.Alexander GRECIAN, Defendant.

No. 12 C 767.

United States District Court,

N.D. Illinois,

Eastern Division.

May 31, 2013.

Elizabeth Carlson Wolicki, Pircher, Nichols & Meeks, Richard Lane Miller, II, Stephen Novack, Timothy John Miller, Novack and Macey LLP, Chicago, IL, for Plaintiff.

Bernard J. Rhodes, Lathrop & Gage LLP, Kansas City, MO, Blaine C. Kimrey, Bryan K. Clark, Danielle Nicole Twait, Jordan Alan Stein, Lathrop & Gage LLP, Chicago, IL, for Defendant.

Memorandum Opinion and Order

GARY FEINERMAN, District Judge.

Ken Levin, a literary agent, brought this suit in the Circuit Court of Cook County, Illinois, against his former client, author Alex Grecian. Count I of the complaint seeks a declaratory judgment that Levin's and Grecian's representation agreement (“Agreement”) is a valid and enforceable contract and that Grecian owes Levin 15 percent of the money that Grecian received for the rights to publish his novel The Yard, a New York Times bestseller, and its forthcoming sequels, the first of which, The Black Country, was released earlier this month; Count II rests on the same factual predicate and seeks damages for anticipatory breach of contract. Doc. 1–2; Doc. 68 at ¶ 114. After removing the suit to this court, Doc. 1, Grecian answered and filed counterclaims, Doc. 8. Count I of the counterclaims alleges that Levin breached the Agreement and seeks damages; Count II alleges that Levin breached fiduciary duties owed to Grecian and seeks damages; Count III seeks a declaratory judgment that Levin's alleged breach of the Agreement terminated Grecian's obligations thereunder, including any obligation to pay Levin a commission; and Count IV seeks, in the alternative to Count III, a declaratory judgment that Levin is entitled at most to only a 5 percent commission as the “coagent” of Seth Fishman, whose role in the parties' dispute is set forth below. Doc. 8 at pp. 15–17. The parties have agreed to try the case to the bench, with trial set to commence on October 7, 2013. Doc. 49.

Levin has moved for summary judgment on Count I of his complaint and on each of Grecian's counterclaims. Doc. 56. The motion is granted in part and denied in part. Summary judgment is granted to Levin as to Grecian's counterclaims for breach of contract and breach of fiduciary duty. But Levin's declaratory judgment claim and Grecian's declaratory judgment claims (the first of which mirrors Levin's declaratory judgment claim) shall proceed to trial along with the claim in Count II of Levin's complaint.

Background

The following facts are stated as favorably to Grecian, the non-movant, as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012). In considering Levin's motion for summary judgment, the court must assume the truth of those facts, but it does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir.2012).

Before proceeding, the court notes that Levin's unauthorized reply to Grecian's Local Rule 56.1(b)(3)(B) response to Levin's Local Rule 56.1(a)(3) statement misunderstands the local rules. Doc. 68 at 1–34. Where Grecian's Local Rule 56.1(b)(3)(B) response denies Levin's Local Rule 56.1(a)(3) assertions of material fact, Grecian includes brief factual statements to support the denials, with citations to relevant portions of the record. Over and over, and citing Miller v. Ameritech Corp., 2005 WL 2266614, at *1 (N.D.Ill. Sept. 14, 2005), Levin complains of these responses with the boilerplate assertion that “Grecian's response ... should be deemed an admission and the excess information and argument contained within it should be stricken. The party responding to a 56.1 statement may not include additional facts in its response to the movant's statement of material fact.” E.g., Doc. 68 at ¶ 8. Levin badly misreads Miller, which use the phrase “additional facts” in the sense meant by Local Rule 56.1(b)(3)(C), which requires the party opposing summary judgment to submit “a statement ... of any additional facts that require the denial of summary judgment.” In that context, the phrase “additional facts” does not mean all facts other than the facts asserted by the movant's Local Rule 56.1(a)(3) statement, but rather only those additional facts that are not intended to show that the movant's asserted facts are disputed. Local Rule 56.1(b)(3)(B) provides that the non-moving party should offer factual responses, along with record citations supporting those responses, that controvert the movant's statements of fact, and that the non-movant must limit those factual responses to facts that are indeed responsive to the movant's assertion—that is, to facts that fairly contradict what the movant has actually asserted. If the non-movant wants to assert facts that go beyond what is fairly responsive to the movant's factual assertion, then he must do so not in his Local Rule 56.1(b)(3)(B) response, but in his “statement ... of any additional facts that require denial of summary judgment” under Local Rule 56.1(b)(3)(C). See Johnson v. Cnty. of Cook, 2012 WL 2905485, at *12 (N.D.Ill. July 16, 2012) (“It is inappropriate for a non-movant to include additional facts, meaning facts extraneous to the substance of the paragraph to which the non-movant is responding, in a Local Rule 56.1(b)(3)(B) response. Rather, Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate statement under Local Rule 56.1(b)(3)(C) of any additional facts that require the denial of summary judgment.”) (first emphasis added, citations and internal quotation marks omitted). The line between a responsive fact that should be included in a Local Rule 56.1(b)(3)(B) response and an extraneous fact that must be stated in a Local Rule 56.1(b)(3)(C) statement is not always bright, and a number of Grecian's responses hover around that line and even cross it. E.g., Doc. 64 at ¶¶ 23, 61. But Levin replies with the boilerplate quoted above even where Grecian's responses do not even approach that line, e.g., Doc. 68 at ¶ 10, indicating that Levin misunderstands the purpose of a Local Rule 56.1(b)(3)(B) response. The court will adhere to the local rules; it will ignore extraneous matter in Grecian's Local Rule 56.1(b)(3)(B) responses, but will take account of facts included in those responses that are relevant to showing that Levin's Local Rule 56.1(a)(3) assertions are genuinely disputed.

Levin and Grecian's relationship began in August 2004, when Grecian sent Levin an email seeking advice about a proposal Grecian expected to receive regarding his work “The Impossible Snowman.” Doc. 64 at ¶ 5. The two exchanged several emails and ultimately entered into the Agreement, which has an effective date of November 1, 2004. Id. at ¶¶ 6–7. Levin was impressed by Grecian's work and admits that Grecian was the only client in Levin's 39–year career that Levin took on without a referral. Doc. 68 at ¶ 78. The Agreement made Levin “the sole and exclusive representative of all of the rights to the Properties,” with “Properties” defined to mean the novels, graphic novels, and other comic art works “which are or have been created or controlled by Alex Grecian in whole and in part as of and after the Effective Date [of the Agreement] and all sequels and spin-offs of same.” Doc. 58–6 at 2. Levin agreed to “work with [Grecian] to formulate strategies to develop and ‘take out’ Properties for print publication, movie, television, and/or video game development.” Id. at 2–3. In return, the Agreement provided that Levin “shall have an interest of 15% in any non-comic art writing or print publication (novels, screenplays, etc.), and in third party print publishings of comic art Properties.” Id. at 4. The Agreement's initial term was seven years, ending November 2011, and it provides for automatic renewal for additional four-year periods unless Grecian sends a notice of termination to Levin “at least six months before the end of the Term.” Id. at 5–6. The Agreement is and was the only contract between Levin and Grecian. Doc. 64 at ¶ 8.

Between October 2004 and December 2011, when Levin and Grecian's relationship came to an end, the two exchanged approximately 781 emails, of which 271 were sent by Levin. Id. at ¶ 11. Around 2007, Grecian authored a series of comic books called Proof; the series was published that same year. Id. at ¶ 12. Levin claimed to have pitched the idea of a television series or movie based on Proof to Sony, the Spike television channel, Whoopi Goldberg, Samuel L. Jackson, and the principals of a development company called Kickstart Entertainment. Id. at ¶ 13. The proposed deal would have paid Levin $45,000 to $75,000 per year to act as a “passive producer.” Doc. 68 at ¶ 110. Grecian believes that Levin was willing to offer Proof only to potential producers who would pay Levin such a fee, and that this led the producers to reject the proposal. Id. at ¶ 112. No television series ever materialized, and Grecian received no money from Levin's efforts. Id. at ¶ 111. Several times during their relationship, Levin suggested to Grecian that they should co-write something together; Grecian did not accept these proposals, but he admits that he was not harmed by them. Doc. 64 at ¶ 76. Until some six-and-a-half years into the parties' relationship, when The Yard was finished and sold to a publisher in mid–2011, Levin never sold any of Grecian's works. Doc. 68 at ¶ 83. The parties dispute the extent to which the sale of The Yard was attributable to Levin's efforts; the court expresses no view on that point.

In early 2010, Levin and another literary agent, Seth Fishman, agreed to undertake a “joint initiative” to create a graphic novel comprised of several authors' works and to promote it to publishers. Doc. 64 at ¶¶ 15–17, 20–21. Levin introduced Fishman to Grecian's works, and Levin and Fishman decided to...