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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 case.

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 this amount.

  For the reasons stated herein, Plaintiff's Motion for Summary Judgment is GRANTED.


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