The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff David Maley ("Maley"), a former regional manager for
defendant Design Benefits Plan, Inc. ("Design Benefits"), has
sued Design Benefits for breach of contract, fraud, and
conspiracy. Jurisdiction is proper under 28 U.S.C. § 1332. Venue
is proper under 28 U.S.C. § 1391(a)(1) and (c). Pending before
this court is Design Benefits' motion for summary judgment, filed
pursuant to Federal Rule of Civil Procedure 56.
As an initial matter, the court notes that Maley has not
responded to Design Benefits' statement of facts, as required by
Local Rule 56.1(b)(3). Accordingly, all material facts set forth
in Design Benefits' statement are deemed to be admitted. See
LR56.1(b)(3)(B); Michas v. Health Cost Controls of Ill., Inc.,
209 F.3d 687, 689 (7th Cir. 2000). In addition, paragraphs 6,
7, 10, and 12 of Maley's statement of additional facts do not
contain references to affidavits, parts of the record, or other supporting materials relied upon, as
required by Local Rule 56.1(b)(3)(B). The court will disregard
these paragraphs. See Brasic v. Heinemann's Inc.,
121 F.3d 281, 285 (7th Cir. 1997) (stating that it is not the task of
the district court "to scour the record in search of a genuine
issue of triable fact.").
Design Benefits markets insurance policies. (LR56.1(a) ¶ 2)
Maley became an agent-in-training with Design Benefits on April
4, 1991. (LR56.1(a) ¶ 5) Maley rose to the position of agent on
May 8, 1991, district manager on February 17, 1992, and regional
manager on June 7, 1992. (LR56.1(a) ¶¶ 6-8) As a district
manager, Maley earned override commissions on policies sold by
agents he recruited, as well as agents who worked under him.
(LR56.1(a) ¶ 7) As a regional manager, Maley earned override
commissions on policies sold by district managers working under
him and the agents working for the district managers, as well as
agents working directly for him. (LR56.1(a) ¶ 8) Maley's
relationship with Design Benefits ended on January 5, 1994.
(LR56.1(a) ¶ 9) During discovery, Maley identified 164 insurance
policies on which he claims he was not paid override commissions
to which he was entitled. (LR56.1(a) ¶ 17)
Summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with [any] affidavits, 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). The court must draw all reasonable inferences in favor of
the nonmoving party. Reeves v. Sanderson Plumbing Prod., Inc.,
530 U.S. 133, 150 (2000). The moving party bears the initial
burden of demonstrating that no material issue exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has properly supported its motion, the nonmoving
party must offer specific facts demonstrating that a material
dispute exists, and must present more than a scintilla of
evidence to support its position. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
Maley has offered no evidence that Design Benefits made a false
statement of material fact, or evidence of an agreement to act to
accomplish an unlawful purpose, as required to establish his
claims of fraud and conspiracy under Illinois law.*fn1 See
Davis v. G N Mortgage Corp., 244 F. Supp. 2d 950, 957 (N.D.
Ill. 2003) (elements of fraud); Bressner v. Ambroziak,
379 F.3d 478, 483 (7th Cir. 2004) (elements of conspiracy). The court
grants summary judgment in favor of Design Benefits and against
Maley, as to Maley's fraud and conspiracy claims.
The court next turns to Maley's breach of contract claim.
Maley's regional manager agreement provided that:
[Maley] hereby agrees that the ledger accounts of
[Design Benefits] shall be competent and sufficient
prima facie evidence of the state of accounts between
the parties hereto; and the failure of [Maley] to
object in writing to any statement of account or
accounts furnished by [Design Benefits] to [Maley]
within sixty (60) calendar days from the date such
statement of accounts are [sic] furnished shall
render such statement a correct account as between
[Design Benefits] and [Maley].
(LR56.1(a) ¶ 19) Design Benefits asserts that Maley received
commission statements from Design Benefits until September 1996.
(LR56.1(a) ¶ 15) In support of this assertion, Design Benefits
offers a letter dated September 22, 1999, in which Maley
requested from Design Benefits' manager of commission accounting "an explanation of why
you have not been sending me these statements for the last three
(3) years." (LR56.1(a) App. Ex. 11) In addition, Design Benefits
offers Maley's deposition testimony acknowledging his authorship
of this letter, and acknowledging that the letter indicated that
he was receiving commission statements at least through September
1996. (LR56.1(a) App. Ex. 16, at 69-70)
As noted above, Maley did not respond to Design Benefits'
statement of facts, and therefore Design Benefits' statement that
Maley received commission statements through September 1996 is
deemed admitted. Maley asserts in his statement of additional
facts that he did not receive any detailed accountings from
Design Benefits after June 29, 1995. (Maley's Add'l Facts ¶ 6)
Maley cites nothing in support of this statement, however, and so
the court disregards it. See LR 56.1(b)(3)(B).
Of the 164 policies that Maley alleges generated override
commissions which he was not paid, 140 had terminated by
September 1996. (LR56.1(a) ¶ 18) Maley did not object to the
commission statements he received on these policies through
September 1996 within sixty days. (LR56.1(a) ¶ 20) The court
concludes that, as a matter of law, Maley is not entitled to seek
commissions on the 140 policies that terminated by September
Under plaintiff's district manager and regional manager
agreements, plaintiff was not entitled to override commissions on
policies sold by agents-in-training working under him. (LR56.1(a)
¶¶ 7, 8) Sixty-six of the 164 policies identified by Maley were
written by agents-in-training.*fn2 (LR56.1(a) ¶ 21) The
court concludes that, as a matter of law, Maley is not entitled
to seek commissions on these policies. Sixteen of the 164 policies identified by Maley terminated
after September 1996 and were not written by agents-in-training.
(See LR56.1(a) ¶¶ 18, 21) Design Benefits concedes that one of
these sixteen policies, number DK4009616A, "was inadvertently
rewritten," and that Maley should have been paid $15.04 per month
on that policy between September 1996 and September 16, 1997,
when the policy lapsed. (LR56.1(a) ¶ 22) The court sua sponte
grants summary judgment in favor of Maley and against Design
Benefits, in the amount of $180.48, on the portion of Maley's
breach of contract claim relating to this policy.
In addition, Maley identifies another policy, number NG4003339A
(not included in the 164 previously identified), that Design
Benefits rewrote. (Maley's Add'l Facts ¶ 11) Design Benefits does
not provide a responsive answer to this statement of additional
fact, and accordingly it is deemed admitted. See LR 56.1(a).
The court sua sponte grants summary judgment in favor of Maley
and against Design ...