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CHEN v. MAYFLOWER TRANSIT

March 11, 2004.

ANGIE CHEN, Plaintiff
v.
MAYFLOWER TRANSIT, INC., Defendant



The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Angie Chen ("Chen") filed a Second Amended Complaint against Defendant Mayflower Transit, Inc. ("Mayflower") alleging breach of contract, conversion, intentional infliction of emotional distress, negligent infliction of emotional distress, and violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 et seq. [Dkt 48.] This court previously granted summary judgment in favor of Mayflower on the conversion and negligent infliction of emotional distress counts, and denied summary judgment on the intentional infliction of emotional distress count. [Dkt 72, 87.] See Chen v. Mayflower Transit, Inc., No. 99 C 6261, 2002 WL 1632412 (N.D. Ill. July 22, 2002) (Brown, M.J.).

Before the court now is Mayflower's motion for summary judgment on the RICO count (Count V). [Dkt 102.] Also before the court is Mayflower's motion to strike Exhibit 50 to plaintiffs L.R. 56.1 statement [dkt 113], and Chen's second motion to strike portions of Mayflower's L.R. 56.1 statement and affidavits [dkt 108]. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt 11.] For the reasons set forth below, Mayflower's motion for summary judgment is denied, Mayflower's motion to strike is granted, and Page 2 Chen's second motion to strike is denied as moot.

  FACTUAL BACKGROUND*fn1

 I. Chen's Move with Mayflower

  In 1999, Chen decided to move her furniture and household goods from Atlanta, Georgia to Chicago, Illinois. (Def.'s LR Resp. ¶¶ 42, 45.) In late May 1999, Chen contacted AAA Admiral Moving and Storage ("Admiral"), a local moving company affiliated with Mayflower and located in Atlanta. (Id. ¶ 42.) See also Chen, 2002 WL 1632412 at * 1; Pl.'s Resp. Def's LR Stmt. ¶ 4 [dkt 78].*fn2

  A. The Estimate for Chen's Move

  On June 4, 1999, an estimator came to Chen's apartment to inspect her property and Page 3 determine the cost of her move. See Chen, 2002 WL 1632412 at *1; Pl.'s Resp. Def.'s LR Start. ¶ 5 [dkt 78]. On that same day, Admiral provided Chen with an estimate for the price of her move, which was handwritten on a pre-printed "Estimate/Order for Service" form (the "Handwritten Estimate"). (Pl.'s LR App. Ex. 6, Handwritten Estimate at 1-2.) The Handwritten Estimate contained the handwritten phrase "[g]uaranteed not to exceed $1,741.89." (Id. at 1.) According to the Handwritten Estimate, that amount included "total containers packing and unpacking," "total line haul charges" and certain "other charges," including charges for the fact that there were stairs at the origin and an elevator at the destination. (Id.) Chen testified that prior to her receipt of the Handwritten Estimate, she was asked whether there was an elevator at her destination and whether a moving truck could park near the entrance of her new apartment, hut was not asked about any other conditions at the destination. (Pl.'s LR App. Ex. 5, ChenDep. at 195-196.) Mayflower admits that Chen was orally informed by the Admiral representative that the price of her move "would not go above $1,741.89," and that it could be less. (Def.'s LR Resp. ¶ 43.) Chen testified that she was also told that if she signed the Handwritten Estimate, "Mayflower would get all of [her] stuff from [her] apartment in Atlanta into [her] apartment in Chicago for a price that would not go above $1,741.89." (Chen Dep. at 197-198.)

  The Handwritten Estimate stated: "If this shipment is a binding estimate, then this amount covers only the services and quantities shown in the estimate. If items are added to the shipment or additional services are performed, additional cost may result." (Handwritten Estimate at 1.) The Handwritten Estimate also provided: "A Binding Estimate represents the charges for only those services indicated on the Estimated Charges sheet. It does not include charges for services to be performed at destination, unless specifically set forth. Charges for all additional services will be Page 4 added to your final bill." (Id. at 2.) According to one of Mayflower's representatives, Mayflower's binding estimates typically do not include services required at the destination. (Pl.'s LR App. Ex.* 1, Webb Dep. at 84.) That representative also testified that Mayflower does not require its booking agents to inquire into conditions that might lead to additional charges. (Id. at 77-78.)

  The Handwritten Estimate was signed by the "Carrier's Representative."*fn3 (Handwritten Estimate at 1.) Chen signed some of the signature blocks on the Handwritten Estimate, including one which stated that she "should sign below only if [she] wish[es] this carrier to perform all the services required." (Id.) Chen included the date June 4, 1999 next to her signature on the Handwritten Estimate.*fn4 She did not sign the signature block stating that she had received the pamphlet "Your Rights and Responsibilities When You Move." (Id.)

  The method of payment was not discussed on June 4. Chen, 2002 WL1632412 at *1 (citing Chen Dep. at 183-84, 187-92.) However, a section of the Handwritten Estimate reads: "Unless credit approval is completed in advance of shipment, all monies must be paid in U.S. funds by cash, cashier's check, certified check or money order at or before the time of delivery." (Handwritten Estimate at 1.) Chen subsequently received a form letter from Admiral confirming June 10 to June 14 for the loading of her goods and June 15 to June 21 for delivery. (Pl.'s LR App. Ex. 7, Admiral Letter to Chen.) That letter also stated: "Payment is due at the time of delivery and can be made in cash, certified check or money order, or a Major Credit Card, or direct billing to company with Page 5 approved letter of authorization and approved credit check. If you choose to change your payment plan, we ask that you notify our office within *fn5 working days of your actual move date." (Id.) (emphasis omitted). The letter did not mention any requirement that Chen seek pre-approval for her credit card. (Id.) Chen testified that she believed that the letter granted her the approval to pay for her move by credit card. (Chen Dep. at 206.)

  In addition, Chen subsequently signed all of the signature blocks on another estimate. That estimate was typewritten on a pre-printed "Estimate/Order for Service" form that was identical to the Handwritten Estimate form (the `Typed Estimate"). (Def.'s LR App. Ex. A(5), Typed Estimate at 1-2.) Chen included the date of June 15, 1999 next to two of her signatures on the Typed Estimate.5 The Typed Estimate omitted the phrase "guaranteed not to exceed," but stated that the total "bound services" amounted to $1,385.19 and the "total estimate" amounted to $1,741.89. (Id. at 1.) The Typed Estimate stated that it was a "binding estimate" as of June 7, 1999. (Id.)

  B. The Loading of Chen's Goods in Atlanta

  Chen's move took place on June 10, 1999. (Def.'s LR Resp. ¶ 45.) After Admiral loaded Chen's belongings onto the moving truck, the Admiral representative handed Chen a bill of lading. (Id.; Chen Dep. at 262.)*fn6 The bill of lading stated that Mayflower "publishes tariffs which set forth Page 6 the terms, conditions and prices for the transportation services it provides" and that "[t]he applicable tariff provisions are incorporated herein by reference." (Def.'s LR App. Ex. A(7), Bill of Lading at 2.) The bill of lading further stated that the tariff may be inspected at Mayflower's offices and that a copy of certain provisions would be provided upon request. (Id.) The bill of lading directed shippers to the "Your Rights and Responsibilities When You Move" pamphlet for more information about the tariff. (Id.) It also noted that "[i]n the event of any conflict between the terms of the Order for Service [presumably the Handwritten Estimate or the Typed Estimate] and Bill of Lading, the document last executed shall control." (Id.)

  C. The Delivery of Chen's Goods in Chicago

  Chen's property was scheduled to be delivered between June 15 and June 21. (Handwritten Estimate at 1; Typed Estimate at 1; Admiral Letter to Chen.) Her property was to be delivered by Century Moving and Storage ("Century"), another moving company associated with Mayflower which is located in Illinois. (Def.'s LR Resp. ¶ 48; Pl.'s LR App. Ex. 24, Fleming Dep. at 19, 21.) Chen's property did not arrive until June 30, and Chen incurred over $1, 100 in expenses for food and lodging while she waited for her shipment to arrive. (Def.'s LR Resp. ¶ 47.)

  On the morning of June 30, before her property arrived, Chen received a call from Ann Vinyard, a representative from Century, who informed her that her property would be delivered that day between 11:00 a.m. and 1:00 p.m. (Id. ¶ 49; Chen Dep. at 233-34.) A few minutes later, Vinyard called again and asked Chen whether she had cash or a cashier's check for $1,741.89. Page 7 (Chen Dep. at 235.) Chen responded that she would be paying by credit card, and that she had been told she had permission to pay by credit card. (Id.) Vinyard advised Chen that she would not be able to pay by credit card and that the driver could not unload her property unless she handed over cash, a cashier's check or a money order. (Id. at 235-36; Def.'s LR Resp. ¶ 49.) Chen told Vinyard that she would try to get a cash advance using her credit card. (Chen Dep. at 237.) Chen then attempted to get the cash together, but was unsuccessful in the short time period available. (Id. at 237-43; Def's LR Resp. ¶ 5 3.)*fn7

  After returning to her apartment, Chen called Vinyard and explained to her that she had been unable to raise the cash, but that she still intended to pay by credit card. (Chen Dep. at 246; Def.'s LR Resp. Ex. 6, Audiocassette Tr. at 2.)*fn8 Vinyard advised Chen that she needed to have obtained pre-approval from Admiral, the company that booked her move, to pay by credit card. (Audiocassette Tr. at 7, 13, 24-26.) Vinyard stated that Century would not allow its driver to unload Chen's property without receipt of certified funds for the full amount of the move, and that, in fact, Admiral had already authorized storage of the goods. (Id. at 2, 16.) Vinyard told Chen that if her goods were placed in storage, she would be charged for storage, delivery and warehouse handling costs. (Id. at 16.) In response to Chen's complaints, Vinyard said that Century's "hands [we]re tied Page 8 [because it was] just the hauling agent" and that it "didn't book [Chen's] order," and had very limited authority in that situation. (Id. at 2, 10, 16.)

  After that conversation, at around 11:00 a.m., the driver of the truck arrived. Chen, 2002 WL 1632412 at *3 (citing Chen Dep. at 272). He told Chen that the truck was too wide for the street and that if a shuttle truck was necessary, Chen's bill would be twice as much. (Id) The driver then called Vinyard from Chen's phone to explain the situation to her. (Chen Dep. at 300-03.) After their conversation, the driver handed the phone to Chen, and Vinyard informed Chen that, due to the additional services required, such as a "long carry" and the size of the elevator, the cost of the move had risen to around $2,500 — approximately $800 over Chen's "guaranteed not to exceed" estimate. (Id. at 303-04, 311; Def's LR Resp. ¶ 51; Audiocassette Tr. at 36.) Vinyard advised Chen, again, that unless she could raise that amount in cash, her goods would be put into storage and she would incur even more charges. (Chen Dep. at 304.) Chen was advised that those charges were for "warehouse delivery fees, the first month's rent, and a refundable deposit for the second month's rent." (Def.'s LR Resp. ¶ 51; Audiocassette Tr. at 37.)

  While the truck driver was waiting, Chen called Corrine Swenson, a Mayflower customer service representative at the "800" number. (Chen Dep. at 315-16; Audiocassette Tr. at 21-29.) Swenson told Chen that payment by credit card had to be approved by the booking agent at least 48 hours before the goods were loaded. (Audiocassette Tr. at 22-23.) Swenson called Admiral to see if Admiral would approve Chen's credit card and reported that Admiral refused. (Id. at 24-26.)

  A little bit later, Vinyard called Chen to check on the progress of the move. (Id. at 29.) After Chen advised her that she thought she could obtain the cash to pay for the move with just a little more time, Vinyard advised her that each additional hour that the truck driver had to wait would cost Page 9 Chen $84.50. (Id. at 29, 33-34, 36.) Vinyard also told Chen that the driver would not unload her goods unless she signed an addendum approving the additional charges including waiting time, stairs and long carries. (Audiocassette Tr. at 30, 36.) When Chen complained about the additional charges, Vinyard directed Chen to the portion of the Estimate/Order for Service form that stated: "If items are added . . . or additional services are performed, additional cost may result." (Id. at 35.) Vinyard then told Chen that the price had now risen to $2,556.69 plus an hour of waiting time at $84.50 — or a total of $2,641.19 — and stated that if Chen's goods went into storage, Chen would need to raise nearly twice as much, namely, an additional $ 1,555 for delivery to storage, $249.60 for warehouse handling, $667.04 for the first two months of storage, and undisclosed amounts for delivery out of storage. (Id. at 37-38, 47.) Chen was also told that if she did not pay that sum within 30 days, her goods would be sold at auction after 30 days. (Id. at 37-38.)

  At 2:30 p.m., Chen called Vinyard and told her that she had raised about $1, 100 in cash. (Id. at 39, 41.)*fn9 Vinyard advised Chen that she was on the other line with "headquarters" and that they decided to put Chen's shipment in storage. (Id. at 39.) Vinyard told Chen that her total charges now stood at $5, 122.83, not including the cost of delivery out of storage. (Id. at 48; Def.'s LR Resp. ¶ 52.) Vinyard told Chen that the "owner of the company" would give her "a really big discount" and deliver the goods on July 6th if Chen could come up with a cashier's check for $1,741.89 plus $2, 240 for storage and delivery out of storage — a total of $3,981.89. (Audiocassette Tr. at 51-52.)

  Chen's goods were put into storage where they remained for approximately three months, until after Chen filed a motion for preliminary injunction. (Def.'s LR Resp. ¶ 55.) It was Page 10 subsequently determined that the additional costs (including loading, transportation, storage for 97 days, and final unloading) amounted to $3,521.28, not $5, 122.83 or $3,981.89 as quoted previously. (Id. ¶ 56; Audiocassette Tr. at 51-52.)

 II. The Relationship between Mayflower and the Local Moving Companies

  Mayflower is federally licensed as an interstate motor carrier and has been for over 75 years. (Pl.'s LR Resp. ¶ 1.) Mayflower itself does not sell moves to individual shippers, physically move household goods, provide estimates, own trucks, or employ drivers or laborers to perform moving services.*fn10 (Id. ¶ 6; Def.'s LR Resp. ¶ 1.) Rather, it enters into agreements with independently owned and managed local moving companies to sell moving services. (Def.'s LR Resp. ¶ 2; Pl.'s LR Resp. ¶ 3.) Mayflower presently has agreements with approximately 400 local moving companies. (Pl.'s LR Resp. ¶ 3.) Those companies are permitted to use Mayflower's name and logo. (Def's LR App. Ex. A(2), Agency Agreement at 2; Def.'s LR Resp. ¶ 2; Pl.'s LR Resp. ¶ 9.) The moving work is performed by drivers who are employed by the affiliate companies using trucks that are owned or leased by the affiliates. (Pl.'s LR Resp. ¶¶ 6, 7.) Mayflower provides those companies with a centralized communications system to coordinate moves, billing and collection services, a customer service department, and the federal authority to operate interstate. (Def.'s LR Resp. ¶¶ 4, 11.) Mayflower occasionally placates complaining customers by providing them with checks, or refers the customer to the affiliate who provided the service for information. (Id. ¶ 12.)

  Mayflower distributes the revenue collected for a given shipment among the agent booking Page 11 the shipment, the origin agent, and the hauling agent, with Mayflower retaining on average 13% of the charges for the actual transportation of the shipment. (Pl.'s LR Resp. ¶ 13.) When cash is collected by an affiliate at delivery, the funds are retained by the affiliate but the affiliate enters the amount collected into Mayflower's system and that amount is posted as a debit against the affiliate's account. (Id. ¶ 12.) When Mayflower distributes the revenue from a shipment to the affiliate who provided the service, the revenue is posted to the affiliate's statement as a credit. (Id.) The accounts of the individual affiliates are cleared on a weekly basis and payment is made either to or from Mayflower. (Id.) Charges that are levied in addition to the estimate (i.e., charges that exceed the estimate) are also collected and distributed by Mayflower. (Def.'s LR Resp. ¶ 15.) Credit card payments are collected directly by Mayflower, although there are some exceptions. (Pl.'s LR Resp. ¶¶ 10-12.) Generally, shippers must obtain preapproval of their credit cards before they may use them to pay for services. (Webb Dep. at 114-17.) On an infrequent basis, shippers are permitted to pay at the point of destination without having obtained preapproval of their credit cards. (Pl.'s LR Resp. ¶ 17) (citing Webb Dep. at 185-86.) Under Mayflower's policy, shippers seeking preapproval of their credit cards must generally submit their cards to the booking affiliate companies, who in turn transmit the data to Mayflower's central credit department. (Pl.'s LR Resp. ¶ 17.)

  The terms "not to exceed" and "guaranteed not to exceed" are used on occasion by at least some of the local moving companies when booking shipments. (Def.'s LR Resp. ¶¶ 17, 18.) Mayflower is aware that its affiliates use phrases such as "not to exceed" and "guaranteed price" to describe estimates to prospective shippers, and it does not discourage them from doing so. (Id. ¶ 20.) Mayflower and the affiliates know that some shippers are not clear that Mayflower does not intend for the shipper's estimate to be an absolute cap on cost when the words "not to exceed" or Page 12 "guaranteed price" are used with an estimate. (Pl.'s LR App. Ex. 4, Witherington Dep. at 215; Fleming Dep. at 265-66.)

  Shippers with binding estimates can be asked to pay additional amounts at the point of origin or destination. (Webb Dep. at 65-69, 80-82.) At the point of origin, shippers with binding estimates can be required to pay extra amounts to cover necessary services omitted by the booking affiliate company. (Id. at 71.) The need for those services can be made known to the shipper as late as the day of the move. (Id. at 67; Pl.'s LR App. Ex. 17, Reece Dep. at 21-23.) If a shipper refuses to pay additional amounts imposed at the point of origin, the affiliate may refuse to move the goods. (Webb Dep. at 67-68.) If additional services and payments are required at the destination, the shipper theoretically has three choices: (1) pay for the additional services; (2) pay to have the goods placed in storage; or (3) have the goods unloaded right where they are. (Id. at 80-81.) Mayflower does not specifically instruct affiliates to offer shippers the last option, i.e., unloading the goods right where they are. (Id. at 82-83.) At the destination, Mayflower's typical procedure is that a shipper's goods will not be unloaded until all additional services required have been paid for. (Id. at 121-122.) Drivers understand that they are not supposed to open the door of their van until they collect any and all additional amounts allegedly owed. (Id. at 122; Def.'s LR Resp. ¶ 24.)

  The local moving companies continue to conduct local (i.e., in-state) moves under their own authority, and keep that business completely separate from their relationship with Mayflower. (Webb Dep. at 174-75.) When conducting local moves, local moving companies may identify themselves as Mayflower affiliates and use trucks with the Mayflower logo, but must explain that, for local moves, they are not "Mayflower." (Id, at 175-76.) Storage of property also falls outside the affiliates' relationships with Mayflower. (Fleming Dep. at 23-24.) Admiral and Century engage Page 13 in significant business outside of their relationship with Mayflower. (Id. at 25-26; Pl.'s LR App. Ex. 26, Sibila Dep. at 26-27.) Mayflower does not have any control over the conduct of that business. (Fleming Dep. at 26; Sibila Dep. at 26-27.)

 III. Documents Cited by Mayflower

  Besides the Handwritten and Typewritten Estimates discussed above, two other documents pertaining to Chen's move warrant discussion: (1) the tariff; and (2) the pamphlet entitled "Your Rights and Responsibilities When You Move."

  A. The Tariff

  The Handwritten Estimate states that the "rules, rates and form of Bill of Lading in Carrier's Tariff on file with the Surface Transportation Board" are incorporated by reference. (Handwritten Estimate at 2) (emphasis added.) It also provides that "[t]he rules, regulations and carrier's Provisions regarding estimates set out in the Tariff currently in effect on the date applicable as filed with the Surface Transportation Board of the Department of Transportation shall govern this shipment." (Id.) (emphasis added.)

  Mayflower asserts that it is governed by Tariff 400-M (which applies to the industry as a whole) and Tariff 104-F, the "Exceptions" tariff (which is specific to Mayflower). (Def.'s Mem. at 19-20.) Mayflower's tariff is published by a branch of the American Moving and Storage Association. (Def.'s LR Resp. ¶ 158.) A Mayflower representative testified that the tariff is not drafted or approved by any public administrative agency or passed by Congress. (Pl.'s LR App. Ex. 3, Pullaro Dep. at 174.) Mayflower can publish exceptions to the tariff on its own initiative, and Page 14 neither the tariff nor the exceptions are filed with any public agency. (Pullaro Dep. at 163-64, 168, 173.) Mayflower is not aware of any public distribution of the tariff. (Id. at 173.) In recent times, tariffs are "published" on compact disc due to the bulk of the tariffs. (Def.'s LR App. Ex. C, Pullaro Aff. ¶ 5.) At oral argument on Mayflower's motion, Mayflower's counsel appeared surprised by the suggestion that anyone would actually request a copy of the tariff. Mayflower's counsel noted that the tariff is complex and must be studied thoroughly to be understood. The tariff does not define the phrase "not to exceed." (Webb Dep. at 48.)

  B. The "Your Rights and Responsibilities When You Move" Pamphlet

  It is Admiral's policy to provide shippers with a copy of the pamphlet "Your Rights and Responsibilities When You Move" at the time an estimate is provided. (Sibila Dep. at 110-Ill.) The text of that document can be changed only with the permission of the Federal Motor Carrier Safety Administration. 49C.F.R. § 375.213(b)(1). The document must be distributed to potential shippers prior to the execution of an order for service of a shipment of household goods. Id. at § 375.213(a)(1). The document explains the binding estimate provision. (Def.'s LR App. Ex. D(2), "Your Rights and Responsibilities When You Move," Form OCE-100 at 2.)*fn11 It also informs Page 15 shippers that they can inspect the tariff at the carrier's facility. (Id. at 1.) Chen testified that she did not receive a copy of the "Your Rights and Responsibilities When You Move" pamphlet (Chen Dep. at 215.) The document does not discuss the phrase "not to exceed."

 IV. Other Individuals with Similar Experiences

  Chen has identified eighteen other individuals whom she claims had experiences similar to hers with Mayflower and its affiliates. (Pl.'s LR Stmt. ¶¶ 58-157; Pl.'s LR App. Exs. 8-23, 25, 31-48.)*fn12 Richard Stevens, for example, was told that the price of his estimate was fixed and "couldn't be increased by anything that happened." (Pl.'s LR App. Ex. 8, Stevens Dep. at 26.) However, the affiliate conducting Stevens' move sought additional payment after it determined that the quantity of goods to be moved had been underestimated and there were costs that had not been included in the estimate. (Id. at 29, 33.) Stevens' price was increased after most of his property had been loaded. (Id.) Marc Reece was given a "not to exceed estimate" and told "[t]hat's what `not-to-exceed' means; there are no other charges." (Reece Dep. at 13, 15.) Although an estimator had been to his house, he was told on the day of the move that a shuttle would be required and he would be Page 16 charged an additional amount. (Id. at 21-22.) He was told that he must pay the increased price or his property would not be moved. (Id. at 22.) Mitchell McCloskey was also given a "not to exceed proposal." (Pl.'s LR App. Ex. 35, McCloskey Aff. at 1.) His written proposal stated that "[t]he shipment will be weighed and the charges for service will be based on the actual weight and services performed or $1,555.37, whichever is less." (Id.) When the movers arrived at his new residence, he was told that his property would not be unloaded unless he paid an increased price to cover "the excessive distance from [his] residence to the moving truck." (Id.) Peter and Christine Lucke were told that the final cost of their move would "under no circumstances" exceed the guaranteed price estimate. (Pl.'s LR App. Ex. 33, Lucke Aff. at 1.) When their goods were half-loaded, they were told they must pay an increased price since the amount they were moving had been underestimated. (Id.) Those acts took place between 1998 and 2001. (Pl.'s LR Stmt. ¶¶ 58-67, 77-85, 111-118; Pl.'s LR App. Exs. 8, 12, 17-19, 33-36.)

  LEGAL STANDARD

  The court may properly grant summary judgment "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). 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). In determining whether a genuine issue of material fact exists, the court must construe all facts and draw all reasonable and justifiable inferences In favor of the non-moving party. Id. at 255. The moving party bears the initial burden to demonstrate the absence of a genuine Page 17 issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex Corp. v. Catrett, 477 U.S.317, 323(1986). Once the moving party has met the initial burden, the non-moving party must designate specific facts showing that there is a genuine issue for trial. Id. at 324. The non-moving party must support its contentions with admissible evidence and may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. Id. See also Winskunas v. Birnbaum, 23 F.3d 1264 (7th Cir. 1994) (non-moving party is required to present evidence of "evidentiary quality" (i.e. admissible documents or attested testimony, such as that found in depositions or in affidavits) demonstrating the existence of a genuine issue of material fact). "[N]either `the mere existence of some alleged factual dispute between the parties' . . . nor the existence of `some metaphysical doubt as to the material facts,' is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir. 1997) (quoting Anderson, 477 U.S. at 247 and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Thus, "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

  DISCUSSION

 I. Mayflower's Motion for Summary Judgment

  Section 1962(c) of RICO provides:

  It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. Page 18

 18 U.S.C. § 1962(c). Section 1962(d) of RICO provides:
It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), ...

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