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August 17, 2005.

Jonyse Johnson Plaintiff,
PS Illinois Trust, Defendant.

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 summary judgment.


  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 ...

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