Spiegel v. EngageTel Inc.

• Decision Date: 29 March 2019
• Docket Number: Case No. 15 CV 1809
• Citation: 372 F.Supp.3d 672
• Parties: Marshall SPIEGEL, Plaintiff, v. ENGAGETEL INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

372 F.Supp.3d 672

Marshall SPIEGEL, Plaintiff,

v.ENGAGETEL INC., et al., Defendants.

Case No. 15 CV 1809

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

Filed: March 28, 2019

Signed March 29, 2019

Christopher V. Langone, Mark T. Lavery, James Patrick Batson, Langone, Batson & Lavery LLC, Chicago, IL, for Plaintiff.

Stacie Elaine Barhorst, Christopher S. Wunder, Dean Gournis, Kaplan Papadakis & Gournis PC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Joan B. Gottschall, United States District Judge

Plaintiff Marshall Spiegel ("Spiegel") brings this lawsuit¹ on behalf of himself and others who have allegedly received unsolicited telephone calls from numerous defendants, including EngageTel Inc. ("EngageTel") and its principal, Dennis Carlson ("Carlson") who has been dismissed as a defendant), despite being on the national "Do Not Call" Registry. Spiegel alleges that the defendants took part in a scheme to flood residential phone lines with thousands of "junk" calls containing fraudulent Caller ID information for purposes of scam marketing and to collect so-called "dip fees" associated with the calls. Pl.'s Resp. to Defs.' Stmt. of Undisputed Material Facts ("SUMF") ¶ 23, ECF No. 178. He brings claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227 et seq. ; under the Illinois Consumer Fraud and Deceptive Business Practices Act ("ILCFA"), 815 ILCS 505/1 et seq ; for unfair practices in violation of the ILCFA; and for unjust enrichment. Following the completion of discovery, EngageTel has filed a motion for summary judgment, contending primarily that it did not "make" or "initiate" the calls at issue and so cannot be held liable under the TCPA.

I. Summary Judgment Standard and the Parties' Fact Statements

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). 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In resolving summary judgment motions, "facts must be viewed in the light most favorable to," and all reasonable inferences from that evidence must be drawn in favor of the nonmoving party–but "only if there is a ‘genuine’ dispute as to those facts." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Blasius v. Angel Auto., Inc. , 839 F.3d 639, 644 (7th Cir. 2016) (citing Cairel v. Alderden , 821 F.3d 823, 830 (7th Cir. 2016) ). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; 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 255, 106 S.Ct. 2505 (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). Summary judgment is warranted when the nonmoving party cannot establish an essential element of his case on which he will bear the burden of proof at trial. Kidwell v. Eisenhauer , 679 F.3d 957, 964 (7th Cir. 2012).

Before reciting the facts, several issues raised by the parties' Local Rule 56.1 statements must be addressed. Local Rule 56.1 creates a procedure for presenting facts that a party contends are material at summary judgment. Specifically, Local Rule 56.1(a)(3) requires a party moving for summary judgment to submit "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law." Cracco v. Vitran Express, Inc. , 559 F.3d 625, 632 (7th Cir. 2009) (quoting L.R. 56.1(a)(3) ). Local Rule 56.1(b)(3)(B) requires the nonmoving party to submit a response to each statement of fact provided by the movant, "including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." The nonmoving party may also present a separate statement of additional facts "consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(C). "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." Id. Similarly, "[i]f additional material facts are submitted by the opposing party ... the moving party may submit a concise reply in the form prescribed in that section for a response." L.R. 56.1(a). If the movant fails to respond properly to the opposing party's statement of additional facts, those facts will be deemed admitted. Id.

Both parties make inappropriate arguments in their Local Rule 56.1(b)(3) responses. In Spiegel's response to EngageTel's fact statements, Spiegel repeatedly argues that certain of EngageTel's fact statements are not "relevant" and "material." E.g., Pl.'s Resp. to Defs.' SUMF. ¶¶ 7, 9, 10–13, 20, 39. He also inappropriately argues what inferences should be drawn from the evidence. E.g., id. ¶¶ 15, 21, 40, 56, 60 ("¶ 15: to the extent that the proposed fact implies Akhavan made relevant calls alone."). And Spiegel summarizes and quotes the deposition testimony and other evidence rather than simply citing it (he cites it, too). E.g., id. ¶¶ 24, 25, 29. EngageTel's response to paragraph 94 of Spiegel's statement of additional facts spans two pages and block quotes a deposition transcript. Defs.' Resp. to Pl.'s Stmt. of Add'l Fact, ECF No. 185 at 11–13; see also id. at 49, 50 ¶¶ 114, 115 (block quoting other depositions). Spiegel specifically asked the court to strike paragraphs 42 and 52 of EngageTel's Local Rule 56.1 statement as inappropriate argument. Pl.'s Resp. to Defs'. SUMF 14.

Consistent with its ordinary practice, this court will not consider improper arguments in the Local Rule 56.1 statements. See, e.g., Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec , 529 F.3d 371, 382 n.2 (7th Cir. 2008) ; Patterson v. Ind. Newspapers, Inc. , 589 F.3d 357, 359–60 (7th Cir. 2009). The court also disregards legal conclusions in the fact statements. Minn. Life Ins. Co. v. Kagan , 847 F.Supp.2d 1088, 1093 (N.D. Ill. 2012) ; Phillips v. Quality Terminal Servs., LLC , 855 F.Supp.2d 764, 771–72 (N.D. Ill. 2012). To the extent necessary, the court addresses relevance and materiality issues as they arise infra . See Rivera v. Guevara , 319 F.Supp.3d 1004, 1019 (N.D. Ill. 2018) (Gottschall, J.).

The parties also raise several evidentiary objections that need not be resolved because they do not concern alleged disputes that are material at summary judgment. See id. Spiegel raises a hearsay objection. Pl.'s Resp. to Defs.' SUMF ¶ 47. EngageTel separately asks the court to strike several paragraphs of Spiegel's statement of additional facts on relevance grounds (¶¶ 93, 98), hearsay grounds, and authentication grounds (see ¶¶ 85, 90, 98, 99, 102, 103, 104, 105, 106, 107, 117). To the extent necessary, the court makes relevance and materiality determinations infra.

Due to the numerous Local Rule 56.1 violations, the fact statements have become unwieldy and voluminous. For instance, defendants' response to paragraph 99 of Spiegel's statement of additional facts spans 18 pages. Id. at 17–35. Spiegel shares part of the blame for the length of the response, however, because he used 16 lettered sub-paragraphs in ¶ 99 to skirt the 40-paragraph limit on his Local Rule 56.1(b)(3) statement of additional facts. Defendants are not immune to this method of ballooning the fact statements. See Defs.'

SUMF ¶¶ 19, 35 (breaking fact into four and five sub-paragraphs), ECF No. 170. Indeed, paragraph 35 is broken into 12 sub-paragraphs labeled (a) through (l). Given the needs of this case, the court considers these to be examples of excessive use of sub-paragraphing in violation of Local Rule 56.1. See Benuzzi v. Bd. of Educ. of City of Chicago , 647 F.3d 652, 655–56 (7th Cir. 2011) ("[W]hat is ‘short’ to one judge may be long to another, and a single judge's definition might reasonably vary from case to case."); Rivera , 319 F.Supp.3d at 1018.

The court nevertheless exercises its discretion not to strike the fact statements. EngageTel urges the court to strike ¶¶ 110–20 of Spiegel's fact statement for exceeding the 40-paragraph limit. Those paragraphs, as well as several others, describe other alleged complaints and investigations the court concludes are not necessary to its decision. See Fed. R. Evid. 404(b). The court therefore need not attempt to determine the proper remedy for either party's use of excessive sub-paragraphing because the court can simply focus on the material facts.

The purpose of Local Rule 56.1 is "to have the litigants present to the district court a clear, concise list of material facts that are central to the summary judgment determination." Curtis v. Costco Wholesale Corp. , 807 F.3d 215, 219 (7th Cir. 2015). The fact statements here hardly further that purpose. Nevertheless, the material issues turn out to be relatively discrete,...