The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant PS Illinois
Trust's ("PSI") motion for summary judgment. For the reasons
stated below, we grant in part and deny in part the motion for
Plaintiff Jonyse Johnson ("Johnson") alleges that in July of
2001 she entered into a contract with PSI for the storage of her
possessions in a storage locker. Johnson alleges that in 2001 she
made monthly payments to PSI until the end of the year when she
missed two payments. Johnson claims that on December 5, 2001, she
received a letter from PSI informing her that she had until
January 3, 2002, to make her payment in full and prevent PSI from auctioning off Johnson's
possessions in the storage locker. Johnson further alleges that
on January 2, 2002, she paid part of her past due payments in
cash and tried to pay the other portion by check, but the PSI
property manager refused to take the check. According to Johnson,
she was told to return on the morning of January 3, 2002, and pay
the remainder of the past due payments. Johnson claims that she
called PSI at approximately 9:45 a.m. on the morning of January
3, 2001, and told the PSI property manager that she was on her
way to the PSI storage facility with the remainder of her past
due payments. Johnson claims that she arrived at 11:10 a.m. and
was told that her possessions had already been auctioned off. In
Johnson's second amended complaint, she includes two claims for
declaratory and injunctive relief under the declaratory judgment
act, 28 U.S.C. § 2201, in which Johnson seeks a declaration that
the Illinois Self-Service Storage Facility Act ("Storage Act"),
770 ILCS 95/1, et seq. is unconstitutional (Counts I and II).
The second amended complaint also includes a negligence claim
(Count III), a breach of contract claim (Count IV), a claim
alleging a violation of the Illinois Consumer Fraud and Deceptive
Business Practices Act, Act, 815 ILCS 505/1 et seq. ("Fraud
Act") (Count V), and an Intentional Infliction of Emotional
Distress claim ("IIED") (Count VI). PSI now moves for summary
judgment on all claims.
LEGAL STANDARD Summary judgment is appropriate when the record, viewed in the
light most favorable to the non-moving party, reveals that there
is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). In seeking a grant of summary judgment the moving party
must identify "those portions of `the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). This initial burden may be satisfied by presenting
specific evidence on a particular issue or by pointing out "an
absence of evidence to support the non-moving party's case."
Id. at 325. Once the movant has met this burden, the non-moving
party cannot simply rest on the allegations in the pleadings,
but, "by affidavits or as otherwise provided for in [Rule 56],
must set forth specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). A "genuine" issue in the
context of a motion for summary judgment is not simply a
"metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rather, a genuine issue of material fact exists when "the
evidence is such that a reasonable jury could return a verdict
for the non-moving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc.,
216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a
whole, in a light most favorable to the non-moving party, and
draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
I. Statement of Material Facts Objections
Pursuant to Local Rule 56.1, Johnson was required to respond to
PSI's statement of material facts. However, instead of responding
to many of PSI's facts, Johnson moved to strike the facts. First
of all, to the extent that Johnson desired to move to strike such
facts, the proper manner to do so would be in a formal motion
rather than by incorporating the various objections into her
Local Rule 56.1 response. However, as we shall explain below,
regardless of the fact that Johnson did not file a proper motion
to strike, Johnson's objections lack any merit. We shall address
a few pertinent examples below.
A. Paragraph 6 of Statement of Material Facts
PSI asserts in Paragraph 6 of its statement of material facts
that the storage contract between PSI and Johnson contains
certain language indicating that PSI could reserve the right to
require that payment be made by cash, certified check, or money
order. (SF 6). PSI also contends that Johnson testified that she
read and initialed the paragraph. (SF 6). Johnson disputes
Paragraph number 6 claiming that the paragraph contains legal arguments and multiple facts. (R SF
6). Paragraph 6 does not contain legal arguments. Neither does
the paragraph contain an excessive amount of facts. Nothing
limits a party to providing only one fact per paragraph under
Local Rule 56.1. The key point is that Johnson does not offer a
legitimate dispute of the fact that the clause referred to by PSI
was included in the storage contract between PSI and Johnson. PSI
has also offered as an exhibit a copy of the loan document which
contains the clause that is now disputed by Johnson. (Hatch
Affdvt. PS 000003).
B. Paragraph 14 of Statement of Material Facts
PSI asserts, in its statement of material fact Paragraph number
14, that in October of 2001 Johnson presented two personal checks
to PSI for rent payments and that the checks were returned for
insufficient funds. (SF 14). Johnson disputes the facts arguing
that the facts are hearsay because PSI cites "only to its own
records, for which no foundation has been provided." (R SF 14).
However, Johnson fails to explain why such facts would be
hearsay. PSI cites in support of its facts the affidavit of
Timothy Hatch ("Hatch") who was employed as a District Manager
for PSI in 2002, and who claims to have personal knowledge of the
facts regarding Johnson's tenant file. (Hatch Affdvt. Par. 1).
Further, attached to the Hatch affidavit are business records
kept by PSI that show that Johnson paid her rent with two checks
on October 18, 2001, and that the checks were returned on November 17, 2001. (Hatch Affdvt. Ex. PS 000010). Johnson has
failed to show that the above evidence would be inadmissible at
trial and thus, in the absence of a proper citation by Johnson to
support her denial of Paragraph 14, the paragraph is admitted
pursuant to Local Rule 56.1. Local Rule 56.1; Dent v.
Bestfoods, 2003 WL 22025008, at *1 n. 1 (N.D. Ill. 2003).
C. Paragraph 43 of Statement of Material Facts
PSI asserts, in Paragraph 43 of its statement of material
facts, that Johnson's psychiatrist took notes during his sessions
with Johnson in 2002 and that the notes reflect that Johnson
talked about what was causing her stress, but she did not mention
the sale of her personal property by PSI. (SF 43). Johnson
responds to paragraph 43 by stating "Undisputed." (R SF 43).
However, Johnson proceeds to also point to other ...