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K.I. MORGAN CO. v. CHICAGO TRANSIT AUTH.

November 20, 1998

K.I. MORGAN COMPANY, INC., Plaintiff,
v.
CHICAGO TRANSIT AUTHORITY, Defendant.



The opinion of the court was delivered by: GETTLEMAN

MEMORANDUM OPINION AND ORDER

 On August 8, 1996, plaintiff K.I. Morgan Company, Inc., an Illinois corporation, filed a three-count complaint against defendant, Chicago Transit Authority ("CTA"), a municipal corporation, alleging violations of 42 U.S.C. ยง 1981 and 1983 (Counts I and II) and common law breach of contract (Count III). *fn1" Plaintiff alleges that defendant's refusal to award it certain contracts was racially motivated. Plaintiff requests compensatory and punitive damages, and declaratory and injunctive relief.

 In November 1996, defendant moved to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff received several extensions of time in which to file its brief in opposition. After the motion was fully briefed, the court denied the motion in April. The case was then dismissed for want of prosecution on April 22, 1997, September 2, 1997, and October 16, 1997, because plaintiff failed to appear at scheduled status hearings. Each time, the dismissal was vacated on plaintiff's motion.

 On March 13, 1998, defendant moved for summary judgment arguing that: (1) plaintiff has no evidence to establish that defendant's actions were racially motivated or discriminatory; and (2) the parties never entered into alleged contract. In support of that motion, defendant filed a statement of uncontested facts, along with supporting affidavits and deposition testimony as required by Local Rule 12M(3).

 Plaintiff requested and received an extension to May 25, 1998, to file its response. Plaintiff, however, did not file its responsive brief until June 17, 1998, after requesting and receiving leave to file instanter. According to Local Rule 12N(3)(a), plaintiff was also required to file "a concise response to the movant's [12M] statement that shall contain ... a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Plaintiff failed to do so, leaving defendant's statement of uncontested facts as automatically admitted. See Petrovich, 959 F. Supp. 884, 887 (N.D.Ill. 1997); Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1102 (7th Cir. 1990).

 Plaintiff did file its own statement of additional facts, which it contended required denial of summary judgment, purportedly pursuant to 12N(3)(b). Most of these "facts," however, were contested and many did not include "references to the affidavits, parts of the record, and other supporting materials..." as required by Rule 12N(3)(b). On June 30, 1998, defendant moved to strike most of plaintiff's statement for failure to comply with the local rule. The court granted the motion on July 22, 1998. Because those facts remaining from plaintiff's 12N(3)(b) statement do not contradict defendant's 12M statement, defendant's version of the facts in this case are completely uncontested. Based on those facts, for the reasons set forth below, defendant's motion for summary judgment is granted.

 FACTS

 Plaintiff is an African-American owned and managed company engaged in the business of chemical manufacturing. Rodney Morgan is plaintiff's president and sole shareholder. James Harris handles plaintiff's marketing, including preparation of bids. Defendant CTA is a municipal corporation that provides mass transit services in Chicago and surrounding communities. Since its incorporation in 1985, plaintiff has entered into at least four contracts with defendant.

 In July 1995, defendant CTA published an advertisement for bids for paint/graffiti remover. Six companies, including plaintiff, submitted bids for the contract. Plaintiff submitted the lowest bid. However, five of the bids, including plaintiff's, were considered non-responsive as they did not meet the contract specifications. As a result, defendant decided to re-bid the contracts with revised specifications.

 Upon learning that the contract would be re-bid, Harris and Morgan had a "heated" discussion with two of defendant's employees: Christine Gambril, manager of vehicle purchasing; and Parker Hand, a procurement administrator. Both refused to award the contract to plaintiff. Later that same day, Harris and Morgan met with Edward Gronkowski, general manager of defendant's purchasing department, to protest Gambril's decision. In his deposition, Morgan admits that they did not tell Gronkowski that they believed Gambril's decision was racially motivated. Gronkowski advised Harris and Morgan that because plaintiff had submitted the lowest bid, he would award it the contract, pending approval of plaintiff's product. The product was approved and the contract was executed in November 1995.

 In April 1996, defendant published a request for bids on a contract to provide bus wash soap to defendant for two years. The advertisement was placed by Ken Trader, another procurement administrator. *fn2" The contract specifications required that Material Safety Data Sheets be submitted with each bid. Trader determined that plaintiff's bid and the bid of a non-minority owned company were non-responsive because they did not include the required Material Safety Data Sheets. He then awarded the contract to Chicago United Industries, Ltd., a minority-owned company, because it was the lowest responsive bidder. Trader had not discussed the circumstances of the 1995 paint/graffiti remover contract with Gambril, Hand or any other CTA employee.

 STANDARDS FOR SUMMARY JUDGMENT

 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ. P. 56(c); Cox v. Acme Health Services, Ltd., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995); Lippert Marketing Ltd. v. Kingwood Ceramics, Inc., 1998 U.S. Dist. LEXIS 15913, 1998 WL 699023, *10 (N.D.Ill. 1998). Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A scintilla of evidence in ...


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