Tabiti v. LVNV Funding, LLC

• Decision Date: 27 March 2019
• Docket Number: Case No. 13-CV-7198
• Parties: ABAYOMI TABITI, Plaintiff, v. LVNV FUNDING, LLC, et al. Defendants.
• Court: U.S. District Court — Northern District of Illinois

ABAYOMI TABITI, Plaintiff, v. LVNV FUNDING, LLC, et al. Defendants.

Case No. 13-CV-7198

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 27, 2019

Honorable Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

This is a certified class action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., brought by plaintiff, Abayomi Tabiti ("Tabiti" or "plaintiff"), against LVNV Funding, LLC ("LVNV"); Resurgent Capital Services, LP ("Resurgent"); and Alegis Group, LLC ("Alegis") (collectively "defendants"). See Tabiti v. LVNV Funding, LLC, 2017 WL 168176 (N.D. Ill. Jan. 17, 2017) (certifying class), reconsideration denied by unpublished order, ECF No. 138 (May 16, 2017). Cross motions for summary judgment are before the court. Tabiti moves for summary judgment as to defendants' liability. Defendants seek summary judgment dismissing this action in its entirety.

I. LEGAL STANDARD AND OBJECTIONS

Except where otherwise noted, the court draws the undisputed facts from the parties' Local Rule 56.1 statements of undisputed material facts ("Local Rule 56.1 fact statements").¹Defendants object to some of the paragraphs of plaintiff's Local Rule 56.1 fact statements primarily on the ground that plaintiff relies on discovery material from other cases.

A. Summary Judgment Standard

Summary judgment is proper "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 as to any material fact 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). 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 (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 (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 (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 its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).

The issues raised in the pending motions largely overlap. The court applies the procedural requirements of Rule 56 separately to each cross motion. See Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund, 778 F.3d 593, 603 (7th Cir. 2015). Each movant and nonmovant "must individually satisfy the requirements of Rule 56." United Transp. Union v. Ill. Cent. R.R. Co., 998 F. Supp. 874, 880 (N.D. Ill. 1998) (citing Chicago Truck Drivers, Helpers and Warehouse Workers Union (Indep.) Pension Fund v. Kelly, 1996 WL 507258, *3 (N.D. Ill. Sept. 4, 1996)). Thus, which party must "go beyond the pleadings and affirmatively. . .establish a genuine issue of material fact" depends on which party will bear the burden of proof on an issue at trial. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 324). This means that the court adopts "a dual, 'Janus-like' perspective" on cross motions aimed at the same claim or defense. Hotel 71, 778 F.3d at 603 (citing Shiner v. Turnoy, 29 F. Supp. 3d 1156, 1160 (N.D. Ill. 2014)). On one motion, the court views the facts and inferences in the light most favorable to the nonmovant; but if summary judgment is not warranted, the court changes tack on the cross motion and gives the unsuccessful movant "all of the favorable factual inferences that it has just given to the movant's opponent." Id. (citing R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Eng'rs, Local Union 150, 335 F.3d 643, 647-48 (7th Cir. 2003)).

B. Defendants' Objections to Plaintiff's Statement of Undisputed Material Facts

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 summaryjudgment 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)). Each paragraph of the movant's facts must include "specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." L.R. 56.1(a). The "[f]ailure to submit such a statement constitutes grounds for denial of the motion." Id. 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.

In their response to Tabiti's Local Rule 56.1(a)(3) fact statements, defendants repeatedly "object" or argue that documents and deposition transcripts cited by Tabiti were obtained during discovery in another case, but plaintiff did not produce the document or disclose the witness during discovery in this case. See Defs.' Resp. to Pl.'s Statement of Material Facts ("SUMF") ¶¶ 8, 9, 10, 11, 12, 20, 21, 22, 23, 40, 47, 48, ECF No. 171; id. ¶¶ 11, 32, 33 (raising objection butnot disputing fact). In support of each objection, defendants cite Federal Rule of Civil Procedure 37(c) and cases interpreting it for the general rule that material not disclosed during discovery must be excluded unless the failure to disclose is substantially justified or harmless. E.g., id. ¶ 20 (citing Fed. R. Civ. P. 37(c)); In re Thomas Consol. Indus., Inc., 456 F.3d 719, 726 (7th Cir. 2006) (quoting Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004)). In her reply, plaintiff argues that raising the objections in this way violates this court's standing order on motions for summary judgment (available from the court's website).

Tabiti correctly reads the standing order, which specifies how factual assertions, arguments about the reasonableness of inferences to be drawn from cited materials, and other legal arguments should be distributed among the Local Rule 56.1 fact statements, responses, and legal memoranda. Regarding responses to a Local Rule 56.1(a)(3) fact statement, the order (p. 2) states "Local Rule 56.1(b)(2) requires a memorandum of law. This is the document in which all argument should be contained." "All" means what it says. By objecting in a response to a Local Rule 56.1(a)(3) response, the party resisting summary judgment deprives the moving party of the chance to reply to the objection. Addressing legal issues in a Local Rule 56.1(b)(2) memorandum of law or in a separate motion to strike avoids these potential pitfalls by permitting full adversary presentation. See Rivera v. Guevara, 319 F. Supp. 3d 1004, 1038 (N.D. Ill. 2018) (Gottschall, J.).

The instant briefing and fact statements exemplify the problems created by incorporating legal argument into Local Rule 56.1 responses. For one thing, the arguments are not developed. A party's "'skeletal' arguments may be properly treated as waived." Hernandez v. Cook Cty. Sheriff's Office, 634 F.3d 906, 913 (7th Cir. 2011) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). To assess the disclosure issues raised by defendants, four factors must beconsidered: "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date." Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012) (quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). Defendants discuss none of the four factors in response to plaintiff's Local Rule 56.1(a)(3) fact statements in their accompanying memorandum of law; indeed the memorandum of law does not...