United States District Court, N.D. Illinois
November 16, 2004.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
Plaintiff alleges that Defendant embezzled approximately
$300,000 by forging checks while employed by Plaintiff as a
corporate officer and comptroller. On August 4, 2003, I entered
and continued Plaintiff's motion for summary judgment pending the
outcome of related criminal proceedings before Judge Conlon. On
June 18, Defendant was found guilty of bank fraud and was
eventually ordered to pay restitution in the amount of $298,711.
Since the criminal case has been resolved, I am now prepared to
move forward with Plaintiff's motion for summary judgment in this
Summary judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323
(1986). In determining whether any genuine issue of material fact
exists, I must construe all facts in the light most favorable to
the non-moving party and draw all reasonable and justifiable
inferences in its favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A genuine issue of fact exists only when,
based on the record as a whole, a reasonable jury could find for
the non-movant. Pipitone v. United States, 180 F.3d 859, 861
(7th Cir. 1999).
Plaintiff argues that summary judgment is appropriate because
there is no genuine issue of material fact as to whether
Defendant converted $307,297 by forging checks in that amount.
Most significantly, Defendant has never, in the pleadings or
otherwise, denied that she did so. Instead, Defendant has
asserted her privilege against self-incrimination pursuant to the
Fifth Amendment of the United States Constitution and has refused
to answer any of Plaintiff's allegations. The Fifth Amendment,
however, does not shield a defendant from adverse inferences in a
civil proceeding where the defendant fails to come forward with
evidence to rebut plaintiff's allegations. Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976). Even in responding to this
motion, Defendant fails to respond to Plaintiff's Statement of
Material Facts, which states that while employed by Plaintiff,
Defendant converted $307,297 by issuing over 370 checks from
Plaintiff's account in her name without authority and by
fraudulently signing those checks and depositing the money into
her account. Since the Plaintiff has not denied these or any
other facts contained in Plaintiff's Statement of Material Fact,
either formally in response to this motion or informally, I must
find that they are admitted pursuant to Local Rule 56.1(a).
Defendant spends most of her Response asserting that summary
judgment should not be awarded because she is unable to pay the
amount sought by Plaintiff. However, Plaintiff's ability to pay
or lack thereof is not relevant to a determination of liability
or damages. Since Defendant has failed to dispute the facts
presented by Plaintiff and has failed to raise any viable
defenses, I find that summary judgment is appropriate. I award
Plaintiff $307,297 in compensatory damages. Normally, I would
also award punitive damages, but, in this case, the purpose of
any punitive damages has already been adequately served by
Defendant's incarceration. Any and all restitution paid by
Defendant pursuant to her criminal case should be credited to
For the reasons stated herein, Plaintiff's Motion for Summary
Judgment is GRANTED.
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