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May 12, 2003


The opinion of the court was delivered by: Arlander Keys, United States Magistrate Judge


Plaintiff, Oncology Therapeutics Network Joint Venture, L.P. ("Oncology"), moves this Court for Summary Judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Defendant Olympia Fields Eyecare, Ltd. ("Eyecare") has filed a Motion to Dismiss, which the Court will address in a separate order. For the reasons set forth below, the Court grants Plaintiff's Motion for Summary Judgment against defendant Olympia Fields Internal Medicine Associates, S.C. d/b/a horizon Healthcare Associates, S.C. ("OFIMA"), under the theory of account stated.


Oncology is a Delaware limited partnership, based in California, that manufactures and sells pharmaceuticals used in the treatment of cancer. (Plaintiff's Memo at 1.) OFIMA is a general medical practice with its principal place of business in Illinois, at 2605 West Lincoln Highway in Olympia Fields. (OFIMA's Resp. at 2.) Eyecare is an ophthalmology medical practice with its principal place of business in Illinois, located at 2555 West Lincoln Highway in Olympia Fields. (Oncology's Statement of Facts at 2.)

Oncology claims that OFIMA and Eyecare failed to pay for pharmaceuticals ordered by and delivered to OFIMA. Oncology presents twenty-three invoices for merchandise that it has shipped, but for which it has not received payment in full, as well as seven invoices for finance charges related to the unpaid invoices.*fn1 (Mot. Sum. J. Ex. 2.) Each of these invoices states that the customer is "Olympia Fields Internal Med.," and lists the customer's address as "2605 W. Lincoln Hwy. #130" in Olympia Fields, Illinois. (Id.) The invoices for merchandise total $135,401.95, and the invoices for finance charges total $9,765.85.*fn2 (Id.)

OFIMA acknowledges that it ordered merchandise from Oncology, that it accepted merchandise from Oncology, and that it received invoices from Oncology for the merchandise and the finance charges. (OFIMA Answer at 5, 6.) Further, OFIMA has paid $15,842.54 towards the merchandise balance. Also, OFIMA has introduced rebate vouchers for $6,829.64, which OFIMA states were issued by Oncology toward the outstanding merchandise balance. The evidence also indicates that Oncology and OFIMA attempted to resolve this dispute by agreeing to a payment plan, which, apparently, was unsuccessful.

Nevertheless, the evidence clearly demonstrates that OFIMA has never entered into a written contract with Oncology. (Reply to Statement of Add'l Uncontested Facts at 2; Jennetten Aff. at ¶ 4.) Oncology admits as much, but bases its contract claim upon the contract it has with Eyecare. Eyecare entered into a written credit contract with Oncology in March 1995. (Am. Compl. Ex. 1.) This contract stipulated that Eyecare would incur a finance charge on invoices that were more than seventy-five days past due at a rate of twelve percent per annum, and that, in the event of default by Eyecare, Oncology would be entitled to reasonable attorney's fees and collection costs. (Id.) This agreement listed Eyecare's address as "2555 W. Lincoln Hwy.," and was signed by Eyecare's president, Sharon Burke. (Id.)

Eyecare concedes that it entered into a contract with Oncology, but denies ordering any goods from Oncology and denies that it and OFIMA are related business entities. OFIMA and Eyecare have each introduced affidavits that state that they have no common ownership, no common business, no common employees, and no common shareholders, directors, or officers (Jennetten Aff. at ¶ 3; Burke Aff. at ¶ 4.) Further, Sharon Burke, M.D., president of Eyecare and signatory to the contract, is not an owner, employee, or agent of OFIMA. (Id. at ¶ 6.)


The Court will grant summary judgment only if the pleadings and supporting documents 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) (2003). A genuine issue of material fact exists if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party initially bears the burden of showing that the record contains no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court will "construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Shank v. William B. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999).

To survive summary judgment, the non-moving party must present evidence that creates more than a "metaphysical doubt as to the material facts." Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Additionally, "mere conclusory" allegations are inadequate. Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th Cir. 1998). The non-moving party will not survive summary judgment if it cannot present sufficient evidence to support each element of its case on which it will bear the burden of proof at trial. Celotex, 477 U.S. at 322.

Under Local Rule 56.1, the party moving for summary judgment must submit a statement of material facts, written in short numbered paragraphs with citations to admissible evidence. Smith v. Lamz, 321 F.3d 680, 682 (7th Cir. 2003). The opposing party must respond to each paragraph by either admitting or denying the allegations and specifically citing to supporting materials showing that there is a genuine factual dispute. Loc. R. 56.1(b)(3)(A). The opposing party may file a statement of additional facts that would defeat summary judgment, using the same form of numbered paragraphs with supporting citations. Loc. R. 56.1(b)(3)(B). Finally, the moving party may file a reply to any additional facts submitted by the opposing party. LOC. R. 56.1(a).

In a summary judgment proceeding, the Court will disregard all facts not properly supported by the record. Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997). Once properly supported, "all material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party." Loc. R. 56.1(b)(3)(B). Similarly, all material facts properly supported in the opposing party's Rule 56.1(b)(3)(B) statement "will be deemed admitted unless controverted by the (reply) statement of the moving party." Loc. R. 56.1(a). Failing to support one's statement with a citation to the record is equivalent to an admission of the other party's factual assertions. Garrison v. Burke, 165 F.3d 565, 567 (7th Cir. 1999).

Finally, to succeed on a motion for summary judgment, the plaintiff must present admissible evidence to support the claim. Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 533 (7th Cir. 2003). "[H]earsay evidence is inadmissible in summary judgment proceedings to the same extent that it is ...

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