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VENZOR v. GONZALEZ

June 16, 1997

JOSE VENZOR, Plaintiff,
v.
JULIO CESAR CHAVEZ GONZALEZ a/k/a JULIO CESAR CHAVEZ; DON KING PRODUCTIONS; DON KING; AL BRAVERMAN; and CRAIG HOUK, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 As we described in a prior opinion, Plaintiff Jose Venzor, a boxing promoter, alleges that the defendants induced him into paying for a fight that was fixed. See Venzor v. Gonzalez, 936 F. Supp. 445 (N.D. Ill. 1996). Previously, we granted Venzor leave to file a Sixth Amended Complaint, *fn1" and now pending before us are the following motions: (1) Defendant Julio Cesar Chavez's motion for summary judgment; (2) a motion for summary judgment from Defendants Don King Productions, Don King, and Al Braverman (the King Defendants); (3) two motions by Venzor relating to Chavez's counterclaim against the plaintiff; and (4) various motions to strike exhibits from the summary judgment motions. For the reasons discussed below, we grant in part and deny in part Chavez's summary judgment motion; grant the King Defendants' summary judgment motion; deny the plaintiff's motions regarding Chavez's counterclaim; and grant in part and deny in part the motions to strike.

 I. Standard for Reviewing Summary Judgment Motions

 We previously detailed the factual background of this case, see Venzor, 936 F. Supp. at 448-49, and because the amended complaint alleges the same general background, we will proceed directly to the pending motions, starting with the summary judgment motions. Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact, and . . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant bears the initial burden to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). Material facts are those determinative of the outcome of an issue as determined by the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Once the movant has done this, the nonmovant "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). *fn2" In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party, Anderson, 477 U.S. at 255, and refrain from making credibility determinations, Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).

 II. Chavez

 This litigation arises from what had been a settlement of a suit between Venzor and Chavez. Venzor had sued Chavez for breaching a March 1993 contract to fight a Chicago-area match in which Venzor had invested. The suit charged that Chavez had agreed to the match without receiving permission from King, who owned the exclusive right to promote Chavez's fights. In June 1995, King Productions agreed to release Chavez for a July 1995 match with Defendant Craig Houk and to permit Venzor to promote the fight; in exchange Venzor would pay Don King Productions and Chavez as well as drop the lawsuit against Chavez. Houk lost to Chavez in the first round of their match, and according to Venzor, the fight was fixed.

 A. Chavez's Knowledge of the Fix

 Chavez's first argument is that there exists insufficient evidence for a reasonable trier of fact to find that Chavez knew the fight was fixed, if it was fixed at all. In response, Venzor points to numerous items of evidence that he asserts show Chavez's awareness and agreement to the fix. E.g., Pl.'s Chavez 12(N) PP 7-8; Pl.'s Chavez 12(N)(3)(b) PP 1, 3, 5-12. According to Venzor, Chavez failed to prepare for the fight as he would have if the fight was not predetermined, as evidenced by lackadaisical training and alcohol use during the training period. Additionally, Chavez experienced medical problems soon before the fight that should have posed an unacceptable risk if the fight were not fixed. Finally, Venzor maintains that a remark made by Chavez before the fight to a fellow boxer was an admission of the fix.

 Because we must make all reasonable inferences in favor of the plaintiff and view them in the light most favorable to him, we conclude that there exists sufficient evidence for a reasonable trier of fact to find against Chavez. According to Armando Zenteno, a reporter and author who has extensively followed Chavez's career, Chavez does not drink alcohol while training before fights, and yet Zenteno observed Chavez appear drunk at 2 a.m. on July 23, six days before the fight, although Zenteno had not actually seen Chavez drink. Zenteno Dep. at 44, 56-57. Additionally, Elena Sotomayor, a publicist working with Chavez while he trained in Chicago, believed that Chavez "smelled strongly" of alcohol and appeared hung over in the morning of July 25, just four days before the fight. Sotomayor Dep. at 45. Furthermore, both Zenteno and Venzor observed Chavez drink alcohol at different meals during the training period. Zenteno Dep. at 56-57; Venzor Dep. at 761.

 In addition to this departure from Chavez's usual training, Venzor proffers the affidavit of Mario Martinez, a professional boxer who has previously fought against Chavez. Pl.'s 12(N)(3)(b), Ex. D (Martinez Aff. PP 1-2). *fn3" Chavez promised Martinez a rematch after their earlier fight, and on March 1995, Martinez met with Chavez in Guadalajara. Martinez Aff. PP 2-3. During the meeting, Martinez asked whether he (Martinez) could be Chavez's opponent in the 1995 Chicago fight. According to Martinez, "In response to my question, Chavez told me that I don't go down and he already had an opponent who was going down anyway." Id. P 4. When viewed in the light most favorable to the plaintiff, this admission, considered with the above evidence against Chavez, creates genuine issues of material fact for trial.

 Our conclusion that a reasonable trier of fact could find against Chavez does not mean, however, that each piece of the plaintiff's evidence by itself points toward liability, or even that all of the evidence detailed by Venzor in his Local Rule 12(N) and 12(N)(3)(b) Statements is admissible. For example, the plaintiff proffers no evidence to rebut Chavez's averment and evidence showing that his physical training sessions leading up to the Houk match was no different from other fights. Chavez's 12(M) PP 7-9; see also Walter Rivers Aff. PP 2-3; Joe Kaehn Aff. PP 2. *fn4" Venzor relies upon scattered references in Zenteno's deposition testimony, e.g., Zenteno Dep. at 54 (referring to a publicity training session), but those excerpts do not rebut the evidence describing the training sessions supplied by Chavez. *fn5" Our holding, then, should not be taken for more than the existence of genuine issues of material fact that exist for trial.

 B. RICO

 We next address Chavez's arguments that are directed at specific theories of liability against Chavez. Of the fourteen counts in the complaint, seven name Chavez: three counts based on the Illinois Boxing and Wrestling Act, 225 ILCS 105/1-26 (Counts 4-6); a civil conspiracy count grounded on fraud and the Boxing Act claims (Count 7); a breach of contract count, which we earlier dismissed, Venzor v. Gonzalez, 1997 U.S. Dist. LEXIS 2514, 1997 WL 102538, at *3-4 (N.D. Ill. March 5, 1997), against Chavez for failing to promote the fight (Count 8); and two counts ...


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