Because the uncontested facts demonstrate that defendants' claims are not entitled to priority over other claims against the Case assets held by plaintiff, plaintiff's motion for summary judgment on Count I of the complaint is granted, and defendants' motion for summary judgment on Count I of the counterclaim is denied.
II. Defendants' Claim of Breach of Fiduciary Duty
As noted above, Count II of defendants' counterclaim seeks a declaration that plaintiff breached its fiduciary duty by hiring the same law firm, Mayer, Brown & Platt, that represents a major creditor of Case, Continental Bank ("Continental"), which has asserted a $ 19,000,000.00 claim against the estate. Defendants claim that they were somehow harmed by the fact that this law firm negotiated with plaintiff regarding the Assignment without consulting defendants. Defendants cite no authority, other than the Black's Law Dictionary definition of a fiduciary, to support this claim. Plaintiff does not deny that he is a fiduciary who owes duties of loyalty and impartiality to Case's creditors, including defendants, but argues that Illinois case law specifically allows the trustee of an assigned estate to be a major creditor of the debtor. Farwell v. Cohen, 138 Ill. 216, 28 N.E. 35 (1891). Thus, plaintiff argues, the retention of an attorney who represents a major creditor is proper.
As plaintiff points out, the Farwell court ended up removing the attorney due to improper behavior, the failure to provide an inventory, valuation and bond in a timely manner. 28 N.E. at 37. The case, though rather ancient, illustrates the point that defendants cannot complain of a breach of fiduciary duty without alleging some act of impropriety on behalf of the fiduciary and some damage resulting from such impropriety -- allegations absent from defendants' counterclaim. Havoco of America, Ltd. v. Freeman, Atkins & Coleman, Ltd., 856 F. Supp. 466, 471 (N.D. Ill., Jun 21, 1944).
More to the point, defendants have failed to file a Local Rule 12(M) statement in support of their motion for summary judgment on Count II of the counterclaim. The record is therefore totally inadequate at this point even to entertain defendants' motion. Failure to submit a Rule 12(M) statement "constitutes grounds for denial of the motion." N.D. Ill. Local rule 12(M). The factual statements required by this rule are not superfluous abstracts; they are intended to alert the court to the precise facts in dispute, and point to the evidence that supports the party's position. The Rule 12(M) statement is the court's "roadmap." Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir., 1994). The Court should not proceed with a summary judgment motion, without a Rule 12(N) statement, regardless of how readily it might be able to distill the relevant information from the record. Id. While parties can argue with the rule's rigor, this criticism is countered by the exigent need of the district courts to streamline procedures. Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir., 1990).
Accordingly, defendants' motion for partial summary judgment on Count II of their counterclaim is denied.
For the reasons set forth above, plaintiff's motion for partial summary judgment on Count I of the complaint is granted, and defendants' cross-motion for summary judgment on Counts I and II of the counterclaim is denied. Upon disposition of the entire case, plaintiff is entitled to a final judgment declaring that defendants' claim is not entitled to priority status and, to the extent the claim is allowed against the trust, it is allowed only as a general, unsecured claim pursuant to Paragraph 3(f)(5) of the Trust Agreement.
ENTER: November 23, 1994
Robert W. Gettleman
United States District Judge