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September 22, 2004.

ANGIE CHEN, Plaintiff,

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


Defendant Mayflower Transit, Inc. ("Mayflower") has moved to have the statements in its Local Rule 56.1 Statement to which plaintiff Angie Chen ("Chen") responded either "undisputed," or "disputed in part," be deemed as admissions by Chen to be read to the jury at the trial of this case. For the reasons set out below, Defendant's Motion to Deem Additional Matters Admitted [dkt 140] is denied. However, pursuant to Federal Rule of Civil Procedure 56(d), this order identifies a number of facts that appear to be both material and without substantial controversy. Chen shall file and serve an objection by September 27, 2004 if Chen objects to any of those facts being read to the jury as uncontested facts.


  In connection with its earlier motion for summary judgment on Chen's RICO claim, Mayflower served a Statement of Material Facts pursuant to Northern District of Illinois Local Rule 56.1. [Dkt 103.] As required by that Local Rule, Chen served a response to that statement which, in a number of instances, responded that facts stated by Mayflower were either "undisputed" or "disputed in part." (Pl.'s 56.1(B) Resp. & Stmt. Add'l Facts.) [Dkt 105.] Mayflower's motion for summary judgment was denied [dkt 119], and the case is now set for trial. Mayflower's present motion states that Mayflower sought to have those statements submitted as stipulations of fact in the draft pretrial order, but Chen refused to agree to do so. (Def.'s Mot. at 1.) Mayflower has asked that the court determine those facts to be deemed admitted by virtue of Chen's Local Rule 56.1 response, and permit them to be read to the jury. (Id.)


  I. Mayflower's motion is denied.

  Local Rule 56.1 sets out a procedure that parties must follow in connection with a motion for summary judgment. The moving party must file a statement of material facts as to which the moving party contends there is no genuine issue; the opposing party must file a response to the statement that includes, "in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, . . ." L.R. 56.1(a)(3) and (b)(3)(A). The Local Rule expressly states, "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." L.R. 56.1(b)(3)(B).

  The Seventh Circuit has emphasized the importance of compliance with Local Rule 56.1 for purposes of facilitating the decision on summary judgment. See, e.g., Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004) (citing cases). The Seventh Circuit has not determined whether Local Rule 56.1 responses may be used for any purpose if the motion for summary judgment does not terminate the case. Mayflower cites Zander v. Continental Casualty Co., No. 02-2696, 2003 WL 1545200 (7th Cir. Mar. 24, 2003), in support of its position. (Def.'s Mot. at 1.) However, that decision is an unpublished order that may not be cited as authority. 7th Cir. R. 53(b)(2)(iv).*fn1

  More appropriately, Mayflower cites a decision by another judge of this District holding that a Local Rule response could be used as an admission at trial. In Frymire v. Peat, Marwick, Mitchell & Co., No. 85 C 10460, 1991 WL 66381 at *1 (N.D.Ill.April 22, 1991) (Lindberg, J.), the court held that:
where an admission in a document required to be filed in proceedings on a motion for summary judgment has such potentially serious consequences as a Rule 12(N) [the predecessor to Local Rule 56.1] response does, the admission is of sufficient quality to permit it to be used at trial.
Other judges of this District have held otherwise. In TIG Ins. Co. v. Giffin, Winning, Cohen & Bodewes, P.C., No. 00 C 2737, 2002 WL 31870528 at *5 (N.D.Ill. Dec. 20, 2002) (Plunkett, J.), the court refused to hold a defendant bound to admissions it effectively made by failing to respond to the plaintiff's Local Rule statement. The defendant in that case had moved for summary judgment. Id. The plaintiff filed a Local Rule 56.1(b)(3)(B) statement of additional facts supporting the denial of summary judgment. Id. The defendant did not file a response to that statement. Id. Summary judgment was apparently denied. The plaintiff then filed a motion in limine seeking to exclude from trial evidence inconsistent with the plaintiff's Local Rule 56.1(b)(3)(B) statement. Id. at *1, 5. The court held that the defendant's failure to respond to the plaintiff's Local Rule 56.1(b)(3)(B) statement was not binding on the defendant because it was not an admission, "in a pleading." Id. at *5. The court further stated that, even if the failure to respond was an admission, the court had the discretion to decide whether or not to accept a judicial admission. Id. (quoting Singer v. State Farm Mut. Auto Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997)). The court also observed that the failure to respond would be an admission only as to the facts that were material to the motion for summary judgment, and the plaintiff had made no effort to cull the material facts from its Local Rule 56.1(b)(3)(B) statement, arguing instead that the entire statement should be deemed admitted. Id.

  The TIG decision illustrates one of the practical problems with using Local Rule statements for any purpose other than as intended.*fn2 A more fundamental issue is whether a local rule procedure designed to facilitate the court's ruling on summary judgment should, after its purpose has been served, be elevated to the same status as a procedure specifically established by the Federal Rules of Civil Procedure. This court believes that it should not.

  First, it is unnecessary. Each paragraph of a Local Rule statement must be supported by "affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." L.R. 56.1(a). Thus, by definition, the party filing the Local Rule statement already has the evidence necessary to prove the fact at trial.

  Second, it is redundant in light of the request to admit procedure expressly established in Rule 36 of the Federal Rules of Civil Procedure. That rule provides a process for simplifying proof at trial or on dispositive motion by identifying facts that cannot reasonably be disputed. The conclusive effect of an admission pursuant to that rule is expressly stated. See Fed.R. Civ. P. 36(b). In the present case, a specific deadline was set for the serving of requests to admit, well before the motions for summary judgment were filed. (Nov. 1, 2002 Order.) [Dkt 89.] The court has serious reservations about creating a local rule alternative to the request to admit process, especially where the local rule does not expressly state that it has any other use except on a motion for summary judgment.

  Third, deeming Local Rule 56.1 responses as admissions for purposes of trial may hinder the original purpose of the local rule. Undoubtedly, Local Rule 56.1 responses can have serious consequences, as observed by the court in the Frymire case and illustrated by the Ammons case. On the other hand, they may have no effect on the motion for summary judgment if, even with the admission, the movant has not presented the evidence necessary to obtain summary judgment. A party may decide that a factual matter is inconsequential to the decision on summary judgment, but may not want to be bound by that fact if the matter goes to trial. If failing to dispute a matter in a Local Rule 56.1 statement forecloses presenting any evidence on that point at trial, parties will be very reluctant to acknowledge that any fact, even the most trivial, is "undisputed."

  Fourth, Federal Rule of Civil Procedure 56(d) sets out a procedure by which the responses can be put to use in the trial, in the control and discretion of the judge. That section of Rule 56 provides that, if a motion for summary judgment is denied, the court:
by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy. . . . Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
Fed.R. ...

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