Stedman v. Hoogendoorn, Talbot, 92 C 5670.

• Decision Date: 18 February 1994
• Docket Number: No. 92 C 5670.,92 C 5670.
• Parties: W. David STEDMAN, Plaintiff, v. HOOGENDOORN, TALBOT, DAVIDS, GODFREY & MILLIGAN, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

843 F. Supp. 1512

W. David STEDMAN, Plaintiff, v. HOOGENDOORN, TALBOT, DAVIDS, GODFREY & MILLIGAN, et al., Defendants.

No. 92 C 5670.

United States District Court, N.D. Illinois, E.D.

February 18, 1994.

James K. Meguerian & Ann H. Theodore, D'Ancora & Pflaum, Chicago, IL, for Stedman.

Mary Kay Scott & Dennis G. Gianopolus, Bullaro, Carton, & Stone, Chicago, IL, for Ed Willey.

George W. Spellmire & Maureen R. Lennon, Hinshaw & Culbertson, Chicago, IL, for Hoogendoorn.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Remaining defendants Hoogendoorn, Talbot, Davids, Godfrey & Milligan (a Chicago law firm referred to here as "Hoogendoorn Firm") and Edward Willey d/b/a Edward Willey Commercial Investigations ("Willey") have moved for summary judgment in this multi-count diversity-of-citizenship action brought against them by W. David Stedman ("Stedman"). Their motions target all of Stedman's claims as advanced against Hoogendoorn Firm and Willey in the Third Amended Complaint (the "Complaint"). To prepare the motions for resolution, all the parties have now complied with the requirements of Fed.R.Civ.P. ("Rule") 56 (except for fully satisfying the provisions of this District Court's implementation of that Rule in its General Rule ("GR") 12(M) and 12(N), a subject discussed briefly a bit later). For the reasons stated in this memorandum opinion and order, Hoogendoorn Firm's and Willey's motions are granted and this action is dismissed.

Procedural Background

Initially (in late August 1992) Stedman joined with four related plaintiffs — his wife Sarah W. Stedman ("Sarah"), the W. David Stedman and Sarah White Stedman Foundation and Stedman's daughter Nancy Jane Calloway and her husband Thomas D. Calloway, Jr. (collectively "Calloways") — in the filing of an ill-thought-through (at least in procedural and jurisdictional terms) Complaint against three defendants: Hoogendoorn Firm, Willey (then named only as "Edward D. Willey Commercial Investigations") and Joseph Mahr ("Mahr," then named only as "Joseph Mahr Investigations"). This Court's prompt sua sponte August 27, 1992 memorandum opinion and order directed the attention of plaintiffs' counsel to some obvious jurisdictional flaws in the original Complaint and dismissed it, granting leave to cure those flaws via amendment.

Although the resulting Amended Complaint and a later pleading captioned "Revised Amended Complaint" did somewhat better, it quickly became clear to everyone except plaintiffs' counsel that the named plaintiffs other than Stedman himself had no place in this litigation — after all, Stedman was the only person with whom Hoogendoorn Firm had dealt and as to whom there was any reason on any defendant's part to foresee the action that Stedman took in claimed reliance on the work for which he had retained Hoogendoorn Firm. This Court so ruled orally on November 13, 1992.

Stedman's promptly-filed Second Amended Complaint dropped all of the plaintiffs other than Stedman, but that pleading too was then met with Rule 12(b)(6) motions to dismiss filed by each of the three defendants. This Court proceeded to rule on those motions orally, and on January 5, 1993 Stedman's final version of his pleading (as already stated, it is referred to here as the "Complaint" for convenience) emerged:

1. Complaint Count I charged Hoogendoorn Firm with breach of contract.

2. Count II asserted breach of contract claims against Mahr and Willey.

3. Count III charged all three defendants with negligent misrepresentation.

4. Count V (there was no Count IV) charged Hoogendoorn Firm alone with negligence — a lawyer malpractice claim. After the matter was then brought to issue (at last), summary judgment motions followed from all three defendants.

One last procedural (and substantive) step preceded the current ruling. In his response to the Hoogendoorn Firm and Willey Rule 56 motions, Stedman stated in part that "in a separate motion he will voluntarily dismiss Mahr as a defendant in this action." On November 29, 1993 this Court ruled orally that Mahr was entitled to more than that — that it was unnecessary for him to wait on Stedman's voluntary action to take Mahr out of litigation that it had long been apparent was brought against him improvidently. Accordingly this Court ruled that there was no genuine issue of material fact as to Mahr and that he was entitled to a judgment as a matter of law (the Rule 56 standard). That determination was coupled with a Rule 54(b) determination of finality (see National Metalcrafters v. McNeil, 784 F.2d 817 (7th Cir.1986)).¹

Summary Judgment Standards and Documentation

This Court regularly repeats the operative standards for dealing with Rule 56 motions. Here is its recent summarization as set out in Donato v. Metropolitan Life Ins. Co., 822 F.Supp. 535, 536-37 (N.D.Ill.1993):

Rule 56 imposes on the movant the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). For that purpose a "genuine" issue does not exist unless record evidence would permit a reasonable factfinder to adopt the nonmovant's view (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)), and only facts that would prove outcome-determinative under substantive law are "material" (Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir.1991)). In both respects this Court is "not required to draw every conceivable inference from the record — only those inferences that are reasonable" in the light most favorable to the nonmovant (Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991)).

No doubt because of the checkered history of the litigation, with all of its false starts, neither Hoogendoorn Firm nor Willey complied fully with this District Court's GR 12(M) implementation of Rule 56. Stedman understandably then tendered no GR 12(N) submission, having nothing to which such a response could be directed. Less understandably, however, the principal part of the Appendix that Stedman filed in support of his response to the summary judgment motions (cited "Stedman App. Ex. —") consists of information that postdated Stedman's retainer of Hoogendoorn Firm and the ensuing investigative activity that forms the gravamen of the Complaint. Because Stedman has not been so presumptuous as to charge either defendant with the lack of a crystal ball to foresee the future, those submissions are wholly irrelevant and will of course be ignored.

Facts²

Before March 1990 Stedman (a North Carolina resident and citizen) had the occasion to retain Hoogendoorn Firm partner Edward Tiesenga ("Tiesenga") to handle a few legal matters here in Chicago. Then on March 26, 1990 Stedman telephoned Tiesenga about Stedman's prospective purchase of some valuable rare coins from a Minneapolis (Hennepin County) dealer named Michael Blodgett ("Blodgett"), president of T.G. Morgan, Inc. ("Morgan"). Stedman told Tiesenga that he had already checked Blodgett and Morgan out in his own way and had engaged in similar business transactions with them³ but that he wanted to check them out more carefully before buying any more coins (Stedman Dep. 12). To that end Stedman orally retained Hoogendoorn Firm (through Tiesenga) to obtain a further background investigation of Blodgett and Morgan.

There is considerable divergence between Stedman's and Tiesenga's versions of that initial conversation. Tiesenga's is considerably more detailed and is buttressed by his contemporaneously-taken handwritten notes, while Stedman's version bears all the earmarks of a post-hoc wish-is-father-to-the-thought reconstruction (nor did Stedman make any notes, either then or thereafter, that might have reinforced either his recollection or the version that he gave during his deposition). There were material areas as to which Tiesenga was specific in his testimony, while Stedman was fuzzy or hedged his deposition responses.

Although to be sure a summary judgment motion is not the occasion for "weighing the evidence and determining the truth of the matter" (Anderson, 477 U.S. at 249, 106 S.Ct. at 2510), the fact remains that the Rule 56 standard equates to that under Rule 50(a) (id. at 250-52, 106 S.Ct. at 2511-12) — and here there are portions of Stedman's testimony that are so at odds not only with Tiesenga's testimony but also with all the objective facts (and often with any notions of reasonableness) that they need not be credited for Rule 56 purposes. In that respect 10A Charles Wright, Arthur Miller & Mary Kay Kane, Federal Practice & Procedure: Civil 2d § 2727, at 170 (2d ed. 1983) quotes a statement from Judge Learned Hand as having established the principle "that the evidence offered must have the force needed to allow a jury to rely on it and the court may disregard an offer of evidence that is too incredible to be believed" (also see cases cited there and in the 1993 pocket part). Judge Hand's statement (and that of Wright, Miller & Kane) of course preceded Anderson, which stated the Rule 56 and Rule 50(a) inquiry in somewhat less demanding terms: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law" (477 U.S. at 251-52, 106 S.Ct. at 2511-12). This opinion applies that standard.

For example, Tiesenga was very explicit that Stedman imposed an express 72-hour time limit within which the investigation had to be completed (garnering as much information as was possible within that period), because that was the time frame within which Stedman said he had to make his new investment decision (Tiesenga Dep. 17-19).⁴ In sharp contrast, Stedman waffled on the subject in his deposition, conceding only that "it's quite possible that" he imposed such a time limit (Stedman Dep. 22). Under those circumstances this Court is entirely justified in crediting...