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OLMOS v. GOLDING

November 16, 1989

GUSTAVO OLMOS, Plaintiff,
v.
RONALD GOLDING, Individually, and LIND-WALDOCK & COMPANY, an Illinois Corporation, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of defendants, Ronald Golding and Lind-Waldock & Company, brought pursuant to Fed. R. Civ. P. 56(b), for summary judgment on the Second Amended Complaint of plaintiff, Gustavo Olmos. Briefing on this summary judgment motion has spawned two motions by defendants to strike affidavits submitted by Olmos and his attorney, Leslie A. Blau, in support of Plaintiff's Brief in Opposition to Defendants' Summary judgment Motion. The motions to strike are denied and, for the reasons set forth below, summary judgment is entered in favor of defendants.

 FACTS

 The parties have complied with Local Rule 12. Plaintiff has raised objections to the defendants' statement of undisputed facts. A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Plaintiff has raised genuine disputes. However, after close examination, the court concludes that the plaintiff has not raised an issue of material fact and finds the following facts undisputed.

 Olmos is a United States citizen residing in California. Lind-Waldock is an Illinois corporation engaging in the discount commodity brokerage business and is registered with the Commodity Futures Trading Commission under the Commodity Exchange Act as a futures commission merchant. See 7 U.S.C. ยง 2. Golding, an Illinois resident, has been employed by Lind-Waldock since 1981 and is currently a vice-president and branch office manager.

 On May 28, 1985, Olmos opened a commodity trading account with Lind-Waldock by executing a written account application (the "Agreement") which set forth the terms and conditions of the relationship between himself and Lind-Waldock.

 The following paragraphs of the Agreement are pertinent to the issues at hand:

 
1. All transactions by Broker on Customer's behalf shall be subject to the applicable constitution, rules, regulations, customs, usages, ruling and interpretations of the exchange or market (such as the Chicago Board of Trade and the Chicago Mercantile Exchange) and its clearing houses, if any, on which such transactions are executed by Broker or its agents for Customer's account, and to all applicable governmental acts and statutes (such as the Commodity Exchange Act) and to rules and regulations made thereunder; Broker shall not be liable to Customer as a result of any action taken by Broker or its agents to comply with any such constitution, rule, regulations, usage, ruling, interpretation, act or statute. . . .
 
. . . .
 
2. THIS IS THE ENTIRE AGREEMENT BETWEEN THE BROKER AND CUSTOMER AND NO PROVISIONS HEREOF SHALL IN ANY RESPECT BE WAIVED OR MODIFIED UNLESS IN WRITING AND SIGNED BY A PRINCIPAL OF BROKER. CUSTOMER ACKNOWLEDGES THAT NO PERSON OTHER THAN A PRINCIPAL HAS AUTHORITY TO MODIFY OR WAIVE THE PROVISIONS OF THE AGREEMENT OR TO ESTABLISH CUSTOMS AND PRACTICES OF TRADING CONTRARY TO THE TERMS OF THIS AGREEMENT. (emphasis in original)
 
. . . .
 
6. Customer agrees at all times to maintain such margins in this account as Broker may from time to time require, in its sole discretion, and will promptly meet all margin calls. Margin requirements may be increased at Broker's discretion and may be retroactive. Customer agrees when requested, whether through telephone order or other communication, to wire transfer margins or any funds required by Broker, and to furnish broker with the names of Bank officers and information necessary for immediate verifications. If at any time Customer's account does not contain the amount of margin required, Broker may, but is not obligated to at any time without notice, close out Customer's positions in whole or in part and take any actions as noted in Paragraph 8.
 
. . . .
 
9. Whenever Broker deems it necessary or advisable for Broker's protection, Broker is authorized, at its sole discretion and for Customer's account, to cover any position Customer may have with Broker through purchase or sale on any Exchange, and to sell as Broker deems appropriate any collateral deposited with broker, whether or not customer has actually received notice of Broker's intention to effect the foregoing, it being understood that a prior tender, demand or call of any kind from Broker, or prior notice from broker, of the time and place of such sale or purchase shall not be considered a waiver of Broker's right to sell or buy any positions or collateral at any time as hereinafter provided period. After deducting costs and expenses in connection with any such transactions, Broker may apply any remaining proceeds to the payment of any liabilities Customer may have to Broker, and in the event such ...

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