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FIRST BANK & TRUST v. FIRSTAR INFORMATION SERVICES

March 27, 2003

FIRST BANK & TRUST, F/K/A FIRST BANK & TRUST OF EVANSTON; BURLING BANK; CAMBRIDGE BANK OF LAKE ZURICH; COMMUNITY BANK-ELMHURST; COMMUNITY BANK-WHEATON/GLEN ELLYN; ILLINOIS STATE BANK OF LAKE IN THE HILLS; MIDTOWN BANK; PRAIRIE BANK & TRUST COMPANY; THE PRIVATE BANK & TRUST COMPANY AND VILLAGE BANK & TRUST-NORTH BARRINGTON, ILLINOIS STATE BANKS; NORTHWEST SUBURBAN BANCORP, INC, A DELAWARE CORPORATION; AND NATIONAL BANK OF COMMERCE, A NATIONAL BANKING ASSOCIATION, PLAINTIFFS,
v.
FIRSTAR INFORMATION SERVICES CORPORATION, A DISSOLVED WISCONSIN CORPORATION; FIRSTAR CORPORATION, A WISCONSIN CORPORATION; AND U.S. BANCORP, A DELAWARE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: John W. Darrah, United States District Judge

MEMORANDUM OPINION AND ORDER

Nine of the eleven plaintiff banks in this action move for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, regarding section 12 of an agreement between the parties. Defendants, Firstar Information Services Corporation, Firstar Corporation, and U.S. Bancorp (hereinafter "Firstar"), move for summary judgment in their favor on the Customers Remedies provision and for summary judgment regarding Firstar's right to terminate the Agreement pursuant to section 7.*fn1 For the reasons stated herein, Firstar's Motion for Summary Judgment is denied on both grounds, and Plaintiffs' Motion for Partial Summary Judgment is granted.

LEGAL STANDARD

Summary judgment is appropriate when there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 156(c); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir 1994). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the moving party on a motion for summary judgment is responsible for demonstrating to the court why there is no genuine issue of material fact, the non-moving party must go beyond the face of the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to demonstrate, trough specific evidence, that there remains a genuine issue of material fact and show that a rational jury could return a verdict in the non-moving party's favor. Celotex, 477 U.S. at 32207; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary judgment, a court must view all inferences to be drawn from the facts in the light most favorable to the opposing party. Anderson, 477 U.S. at 24748; Popovits v. Circuit City Stores, Inc., 185 Fid 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475 U.S. at 586. If the evidence is merely colorable or is not significantly probative or is no more than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-50.

BACKGROUND

The undisputed facts taken from the parties' Local Rule 56.1(a) & (b) statements of material facts (referred to herein as "Pl.'s 56.1" and "Def.'s 56.1")*fn2 and exhibits are as follows.

Since the mid-1960's, Firstar provided data processing services to various customer banks. (Def.'s 56.1 ¶ 8.) Each bank entered into a Master Data Processing Service Agreement ("the Agreement"), which provided that Firstar would provide substantially all of the data processing services required by the banks. (Def.'s 56.1 ¶ 9; Pls.' 56.1 ¶ 5.) The Agreements between Firstar and the Plaintiffs were for express terms, each expiring at various times during the period of July 31, 2001 through September 30, 2004. (Def.'s 56.1 ¶ 10; Pls.' 56.1 ¶ 6.)

Plaintiffs' Motion for Partial Summary Judgment Based on Section 12

Section 12 of the Agreements, entitled "Remedies Upon Default" provides for "Customer's Remedies: If an event of default occurs on the part of Firstar, Customer may terminate this Agreement and recover from Firstar in accordance with Sections 13(a) and 13(b), but such recovery shall be limited an aggregate of $[******]." (Pls.' 56.1 ¶ 13.)

Section 11 provides for "Events of Default . . . b. Firstar. It shall be en event of default on the part of Firstar if Firstar shall fail to process the Customer's work in accordance with the standards set forth in Section 13 hereof." (Pls.' 56.1 Ex. D § 11b.)

Section 13 provides that: "[i]n performing the Services, Firstar shall use the same procedures and exercise the same or similar degree of care which it uses or exercises in performing similar services for its own business and shall not be held to any other or higher degree of care." (Pls.' 56.1 Ex.D § 13a.)

Firstar's Motion for Summary Judgment Based on Section 7

The Agreements were based upon standard forms prepared by Firstar. (Pls.' 56.1 ΒΆ 6.) Each of the Agreements contained the following provision at ...


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