United States District Court, N.D. Illinois, Eastern Division
September 19, 2005.
LYNDA C. LABUDA and MARK LABUDA, Plaintiffs,
JOSEF SCHMIDT and IN-PLACE MACHINING COMPANY, INC. Defendants.
The opinion of the court was delivered by: JEFFREY COLE, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Defendants, Josef Schmidt and In-Place Machining Company, Inc.,
have moved for a determination that the law of Ontario, Canada
applies in this case, and for summary judgment as to damages
based upon the application of Ontario law. For the reasons that
follow, the motion is denied.
Plaintiffs, Mark and Lynda Labuda, were involved in a motor
vehicle accident with the defendant, Josef Schmidt, on June 28,
2002. The accident occurred near the town of Sioux Narrows,
Ontario, Canada, about 60 miles north of the Ontario-Minnesota
border. At that time, Mr. Schmidt was driving a vehicle owned by
In-Place Machining Company, Inc. The Labudas filed suit against
both Mr. Schmidt and In-Place Machining. Now, defendants have
filed what they call a "Combined Motion for Determination of
Foreign Law and Motion for Summary Judgment as to Damages
This case, which arises under the court's diversity
jurisdiction, presents a choice-of-law question. According to the complaint, Lynda Labuda is a Canadian citizen,
but also a permanent resident of the United States. Mark Labuda
is a United States citizen, residing in Plymouth, Minnesota, a
suburb of Minneapolis. Mr. Schmidt is a citizen of Illinois
(Answer to Complaint, ¶ 2), residing in Woodstock, Illinois,
while In-Place Machining is a Wisconsin corporation, with its
principal place of business in Wisconsin. In their motion, the
defendants contend that the law of the Province of Ontario
applies to this case, and that it serves to preclude Mark
Labuda's recovery of damages and limit Lynda Labuda's
recovery.*fn1 Defendants seek entry of judgment in the
amount set forth in an Offer of Judgment they filed, even though
it was rejected by the plaintiffs, and despite the prohibition of
Rule 68, Federal Rules of Civil Procedure. Given the defendants'
submissions and the present state of the record, the defendants'
motion must be denied.
Defendants Have Ignored Local Rule 56.1
The defendants have failed to comply with Local Rule 56.1,
which requires the party moving for summary judgment to file,
among other items, a "statement of material facts as to which the
moving party contends there is no genuine issue and that entitle
the moving party to a judgment as a matter of law." Local Rule 56.1(a)(3). The required statement is to consist of short
numbered paragraphs, including within each paragraph specific
citations to the record which support the facts set forth.
"Failure to submit such a statement constitutes grounds for
denial of the motion." Id.
The judges in this district, with the approval of the Seventh
Circuit, have long required strict compliance with the
requirements of these rules. See FTC v. Bay Area Business
Council, Inc., ___ F.3d ___ 2005 WL 2036251 (7th Cir. Aug.
25, 2005); Markham v. White, 172 F.3d 486, 490 (7th Cir.
1999) (discussing Local General Rule 12, the predecessor to Rule
56.1). This means that a district court is entitled "to decide
the motion based on the factual record outlined in the [Local
Rule 56.1] statements." Koszola v. Board of Educ. of City of
Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004). Here,
defendants have failed to file any statement of material facts
whatsoever. That, alone, is grounds for denying their motion.
Murray v. Avon Products, Inc., No. 03 C 7594, 2004 WL 2921867,
*4 (N.D.Ill. Dec. 16, 2004) (Filip, J.) (pro se plaintiff's
motion for summary judgment denied where pro se plaintiff
failed to file statement of facts); Reynolds v. Claridge Hotel,
Inc., No. 02 C 1012, 2003 WL 22299026. *1 (N.D.Ill. Oct. 6,
2003) (St. Eve, J.) (summary judgment denied for failure to file
statement of facts); Iron Workers Tri-State Welfare Plan v.
Jaraczewski, No. 02 C 2596, 2002 WL 31854972, *1 (N.D.Ill. Dec.
19, 2002) (Kocoras, J.) (same).
In their reply memorandum, the defendants seek to excuse
themselves from the dictates of the local rules by explaining
that they have provided the necessary facts in their motion and
memorandum. (Defendants' Reply to Plaintiff's Response, at 8).
The Rule 56.1 statement, however, is not a mere supplement to the
supporting memorandum; it is a required document, separate and
apart from the memorandum. FTC v. Bay Area Business Council,
supra.; Malec v. Sanford, 191 F.R.D. 581, 585 (N.D.Ill. 2000). The failure to submit a separate statement of
facts constitutes a violation of the local rules even where the
party has asserted facts within its motion or memorandum.
Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th
Cir. 1995); Fortenberry v. United Airlines, 28 F.Supp.2d 492,
495 (N.D.Ill. 1998). Substantial compliance is not strict
compliance. Ammons v. Aramark Uniform Services, Inc.,
368 F.3d 809, 817 (7th Cir. 2004). Here, defendants have simply
ignored the rule and, consequently, their motion is denied.
Second, even if their motion and memorandum were to be
considered, the defendants' manner of setting forth those facts
would still warrant denial of their motion. Local Rule 56.1(a)(3)
requires specific citations to the record. FTC v. Bay Area
Business Council, 2005 WL 2036251; Ammons, 368 F.3d 809, 817.
That means a reference to a specific page number, not a citation
to an entire exhibit. Id. at 817-18. Here, defendants fail to
refer the court to specific page numbers in the exhibits they
cite in their motion and memorandum. For example, defendants cite
the affidavit of John Burnes, Esq., Exhibit "H" in support of
several of their contentions. This is a 10-page, 36-paragraph
document, supported by ten additional exhibits. Defendants
include no page or paragraph references when they refer to this
document. (Combined Motion, at 8, 10). Mr. Burnes' affidavit
then compounds defendants' failure by failing to include page or
even exhibit numbers when it refers to certain evidence. (See,
e.g., Ex. H, ¶¶ 20, 21, 25, 26, 27, 28, 34). Clearly, the
materials defendants have submitted do not comply with the
unambiguous requirements of Local Rule 56.1 and, indeed, do not
even approach compliance with the Rule. Appellate judges are not
like pigs hunting for truffles buried in the briefs. United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Neither
are lower court judges. Consequently, the defendants' motion for
summary judgment must be denied. B
Defendants Violated Rule 68, Federal Rules of Civil Procedure
Third, Local Rule 56.1 is not the only rule defendants have
chosen to ignore in connection with their summary judgment
motion. For whatever reason, the defendants filed an offer of
judgment on March 3, 2005, almost concurrently with their summary
judgment motion. Defendants then relied upon the unaccepted offer
of judgment to support their summary judgment argument as to the
damages to which the plaintiffs are entitled. (Combined Motion,
at 11-13). Because plaintiffs never accepted the offer, however,
it should never have been filed. Fed.R.Civ.P. 68. As Judge Shadur
explained in Kason v. Amphenol Corp., 132 F.R.D. 197 (N.D.Ill.
Rule 68 is really unambiguous its first sentence
provides only for the service of offers of judgment
on the adverse party, while its second sentence calls
for filing of the offer only if the adverse party
accepts it within ten days after such service. By
strong negative inference, that latter reference to
filing if and when the offer is accepted confirms the
plain meaning of Rule 68's first sentence that no
filing is permitted at the time of tender.
132 F.R.D. at 197. Accordingly, the improperly filed offer of
judgment is stricken.
Rule 68 also states that "[a]n offer not accepted shall be
deemed withdrawn and evidence thereof is not admissible except in
a proceeding to determine costs." Thus, defendants' reliance upon
their offer of judgment in their summary judgment motion violates
the Federal Rules of Civil Procedure. Whitaker v. West Village
Ltd. Partnership, No. Civ.A.3:03-CV-0411-P, 2004 WL 2008502, *3
(N.D.Tex. Sept. 8, 2004); Citizens for a Better Environment v.
Village of Elm Grove, 485 F.Supp. 363, 365 (E.D.Wis. 1980). The
defendants' reliance on inadmissible evidence to support their
motion for summary judgment is one more reason to deny their
motion, for Rule 56(e) requires that the motion be supported by
admissible evidence. C
Applicable Choice-of-Law Analysis
Although denial of the defendants' motion based on Local Rule
56.1, and the absence of admissible evidence once the offer of
judgment is stricken, it is useful to discuss the parties'
treatment of the substantive issues in the case as they
undoubtedly will recur. First is the choice-of-law question. The
parties agree that federal courts sitting in diversity apply the
choice-of-law rules of the forum state Illinois to determine
the applicable substantive law. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941); Hinc v. Lime-O-Sol Co.,
382 F.3d 716, 719 (7th Cir. 2004). After that, however, the
analysis is a bit more involved than the parties would lead one
Illinois courts employ the "most significant contacts" analysis
to resolve choice-of-law questions. Ingersoll v. Klein,
46 Ill.2d 42, 45, 262 N.E.2d 593, 595 (1970): When two or more
jurisdictions have an interest in applying their law to a matter
in controversy, the following factors, drawn from the Restatement
of the Law of Conflicts, are relevant in choosing which rule of
law to apply:
(a) the needs of the interstate and international
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states
and the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular
field of law,
(f) certainty, predictability and uniformity of
(g) ease in the determination and application of the
law to be applied. Jones v. State Farm Mut. Auto. Insurance. Co.,
289 Ill.App.3d 903, 917, 682 N.E.2d 238, 248 (1st
Dist. 1997) (citing Estate of Barnes,
133 Ill.App.3d 361, 366, 478 N.E.2d 1046, 1050 (1st
Dist. 1985)); Restatement (Second) of Conflict of
Laws § 6 (1971).
Where a conflict arises in the area of tort law, as here, the
Restatement requires that the law of the state that has "the most
significant relationship to the occurrence and the parties under
the principles stated" in § 6 of the Restatement should be
applied. Jones, 289 Ill.App.3d at 917, 682 N.E.2d at 248;
Barnes, 133 Ill.App.3d at 366, 478 N.E.2d at 1050; Restatement
§ 145. Important contacts that the forum will consider in
determining the state with the most significant relationship are:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury
(c) the domicil, residence, nationality, place of
incorporation and place of business of the parties,
(d) the place where the relationship, if any, between
the parties is centered.
Jones, 289 Ill.App.3d at 917, 682 N.E.2d at 248; Barnes,
133 Ill.App.3d at 367, 478 N.E.2d at 1050; Restatement § 145.
Conflicts analysis is often subtle and not simple, see, e.g.,
Ruiz v. Blentech Co., 89 F.3d 320 (7th Cir. 1996), and
requires a more sophisticated "interest analysis" than merely
tallying the number of contacts in each state. Jones,
289 Ill.App.3d at 917, 682 N.E.2d at 249; Barnes,
133 Ill.App.3d at 367, 478 N.E.2d at 1050. This approach is based on the conclusion
that contacts obtain significance only to the extent that they
relate to the policies and purposes sought to be vindicated by
the conflicting laws. Jones, 289 Ill.App.3d at 917,
682 N.E.2d at 249; Barnes, 133 Ill.App.3d at 367, 478 N.E.2d at 1050-51. Accordingly, Illinois courts construe sections 6 and 145 of the
Restatement together as requiring (1) an examination of the
relevant policies of the forum; and (2) the relevant policies of
other interested states and the basic policies underlying the
particular field of law in order to determine whether a contact
has any significance for choice of law purposes. Jones,
289 Ill.App.3d at 918, 682 N.E.2d at 249; Barnes,
133 Ill.App.3d at 367, 478 N.E.2d at 1051. Here, neither party suggested such an
analysis nor, given the extremely limited record the parties have
accumulated, could one be intelligently undertaken.
For example, in arguing that the law of the Province of
Ontario, as the site of the accident, must apply, defendants rely
to a great extent on language selectively excised from Spinozzi
v. ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999): "the
highest scorer on the `most significant relationships' test is
the place where the injury occurred." (Combined Motion, at 4-5;
Defendants' Reply to Plaintiff's Response, at 6). "Judges
expect their pronunciamentos to be read in context," Wisehart v.
Davis, 408 F.3d 321, 326 (7th Cir. 2005) (Posner, J.), and
the Supreme Court has warned time and again against hyper-literal
parsing of and preoccupation with words surgically excised from
the broader context of an opinion. See e.g., United States v.
Apfelbaum, 445 U.S. 115, 120 n. 6 (1980); Reiter v. Sonotone,
442 U.S. 330, 341 (1979).
The defendants have ignored, in their quotation, the
introductory phrase, "in the absence of unusual circumstances
. . ." 174 F.3d at 844.*fn2 Indeed, the Seventh Circuit
has noted on other occasions that while "the place of the accident retains presumptive weight in a tort
case, ? the presumption is easily overcome." Rice v. Nova
Biomedical Corp., 38 F.3d 909, 915 (7th Cir. 1994) (quoting
Kaczmarek v. Allied Chemical Corp, 836 F.2d 1055, 1058 (7th
For example, courts have looked past the place of the accident
in situations where it was the result of mere happenstance. In
Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 (1963)
considered a bellwether for the move away from the lex loci
delicti rule the court applied New York law where plaintiff
and defendant resided in New York, but the accident fortuitously
occurred in Ontario during a weekend automobile trip. Similarly,
in Illinois' seminal "significant contacts" case, the Illinois
Supreme Court held that the law of Illinois, rather than Iowa,
applied where an Illinois resident drowned in an automobile
accident when his car happened to break through ice on the Iowa
side of the Mississippi River. Ingersoll, 46 Ill.2d at 45,
262 N.E.2d at 594. In so holding, the court rejected the application
of lex loci delicti as arbitrary in such circumstances.
46 Ill.2d at 48, 262 N.E.2d at 596.
Indeed, when faced with motor vehicle accidents occurring in
foreign jurisdictions, courts often endeavor to determine whether
the site of the accident was merely adventitious. In O'Connor v.
O'Connor, 201 Conn. 632, 636, 519 A.2d 13, 15 (1986), although Quebec was
the place of injury, it had no significant interest in applying
its statutory compensation scheme to the controversy because
location of automobile accident in Quebec was purely fortuitous.
Other cases have come to the same result. See, e.g., Moore v.
United Services Auto. Ass'n, 808 F.2d 1147, 1151 (5th Cir. 1987)
(occupants of vehicle at the time of the accident were Florida
residents; only contact with Mississippi was fortuitous
circumstance that automobile crash occurred there); Johnson v.
Ford Motor Co., Inc., No. 01 C 8882, 2003 WL 22317425, *3
(N.D.Ill. 2003) (applying Illinois damages law where Illinois
residents were injured in auto accident in Kentucky during trip
to Florida) Kramer v. Acton Toyota, Inc., No. 993733, 2004 WL
2697284, *3 (Mass.Super. Nov. 2, 2004) (Massachusetts law applied
where accident occurred when plaintiffs were merely passing
through Connecticut on way to New York on trip that began, and
was intended to end, in Massachusetts).
In Schulze v. Illinois Highway Transportation Co.,
97 Ill.App.3d 508, 423 N.E.2d 278 (3rd Dist. 1981), the Third
District analyzed a choice-of-law issue in a motor vehicle
accident case which, like the instant case, involved a right of
recovery question. The passengers of a bus were injured in an
accident in Michigan during round trip from Illinois to Michigan.
The court reasoned that the place of injury did not control
because the accident could have just as easily occurred on an
Illinois or Indiana highway, and the dissimilarity between the
applicable Michigan and Illinois law addressed the right of
recovery and the amount of recovery allowable.
97 Ill.App.3d at 511, 423 N.E.2d at 280. Going beyond a mere tallying of contacts
and focusing on the states' interests, the court emphasized that,
under such "circumstances, the place of the parties' domicile is
of primary importance, for that is the state which presumably
will feel the social and economic impact of recovery and
non-recovery." Id. In sum, this case is not an exception to the principle that conflicts analysis is not a mechanistic
enterprise, and the present record as compiled by the parties is
not adequate for the kind of comprehensive analysis the law
requires. Accordingly, to adequately develop this case, the
parties must come forward with more analysis than a mere tallying
of significant contacts, and more than a fact or two regarding
the site of the accident and the domiciles of the parties.
Expert Testimony on Foreign Law
Under Rule 44.1, Federal Rules of Civil Procedure:
[a] party who intends to raise an issue concerning
the law of a foreign country shall give notice by
pleadings or other reasonable written notice. The
court, in determining foreign law, may consider any
relevant material or source, including testimony,
whether or not submitted by a party or admissible
under the Federal Rules of Evidence. The court's
determination shall be treated as a ruling on a
question of law.
Under this rule, expert testimony accompanied by extracts from
foreign legal material is the preferred method by which foreign
law is determined. See Access Telecom, Inc. v. MCI
Telecommunications Corp., 197 F.3d 694
, 713 (5th Cir. 1999);
Universe Sales Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036
1039 (9th Cir. 1999). See generally, Carolyn B. Lamb and K.
Elizabeth Tang, Rule 44.1 and Proof of Foreign Law in Federal
Court, 30 LITIGATION 31 (Fall 2003). And, in general, summary
judgment is appropriate to determine the content of foreign law.
Access Telecom, 197 F.3d at 713 (citing 9 Wright & Miller,
Federal Practice and Procedure Civ.2d § 2444); Proof of Foreign
Law in Federal Court at 31. In this regard, emphasis must be
placed on the determination of the content of foreign law. A
brief review of the expert's affidavit upon which the defendants
rely suggests that defendants expect to employ expert testimony
beyond what is contemplated by Rule 44.1. Defendants' expert, Mr. Burnes, appears to be qualified to
testify as to the content of Ontario law.*fn3
He is a
Barrister and Solicitor in Toronto, Ontario, and has been
practicing exclusively in the area of personal injury and
property damage claims since 1983. But he is not a medical
expert. Yet, he seemingly resorts to medical expertise at various
points in his affidavit. For example, Mr. Burnes states that he:
understand[s] from a review of medical documentation
that the claimant, Mark Labuda, returned to work less
than 30 days after the accident. The photographs
appear to make reference to possible skin abrasions
or scarring. Based upon a review of the medical
documents and the photographs, it is my opinion that
the Plaintiff, Mark Labuda, will not be capable of
meeting the necessary "threshold" level to prove both
permanent and also serious impairment of a physical,
mental or psychological function. Under these
circumstances, Mark Labuda will not be able to
advance a claim for general damages.
(Ex. H, Burnes Aff., ¶ 20). While Mr. Burnes adverts to a review
of "medical documents and the photographs," he does not describe
in any detail what they consist of, what they show, or the basis
upon which made his conclusory determination. An expert, who
supplies nothing but a bottom line supplies nothing of value to
the judicial process. Minasian v. Standard Chartered Bank, PLC,
109 F.3d 1212, 1216 (7th Cir. 1997). More importantly, Mr.
Burnes' appropriate role indeed his only role is to provide
his expertise as to how an Ontario court would determine whether
Mr. Labuda meets the statutory threshold of permanent and serious
impairment. His affidavit does not do that. It simply gives his
opinion that the plaintiff cannot pass the test. Without a far
greater degree of proof than has been adduced thus far, I cannot
conclude that Ontario law requires the result defendants seek. Put another way, the affidavit that has been provided seeks to
do far more than assist me in determining what the foreign law
is. It seeks to resolve factual questions. That is not the
function of a foreign law expert. Nieves-Villanueva v.
Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997). In Lithuanian
Commerce Corp., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 245 (D.N.J.
1997), for example, the plaintiff sought to introduce an expert
report on foreign law pursuant to Rule 44.1. In the report,
however, the expert also sought to assist the fact finder as to
which facts to find in the case. The court explained "that use of
an expert report to assist the court in its determination of
foreign law is entirely different from use of an expert report,
pursuant to Rule 702, Fed.R.Evid., to aid the jury in determining
facts." 177 F.R.D. at 264.
Similarly, in ID Sec. Systems Canada, Inc. v. Checkpoint
Systems, Inc., 198 F.Supp.2d 598 (E.D.Pa. 2002), the court
considered an expert report dealing with contract law in the
Province of Ontario. To the extent that the expert opined on the
substantive provisions of Ontario contract law, the court found
that the expert's report may assist the court in making a
determination as to the substance of Ontario law.
198 F.Supp.2d at 623. To the extent the report extended beyond providing an
analysis of Ontario law, and offered to assist the fact finder as
to which facts to find, the court found the testimony improper
under Rule 44.1. Accord Hexamedics v. Guidant Corp., No. CIV
00-2532(PAM/JGL), 2002 WL 246678, *7 (D.Minn. Feb. 8, 2002).
The expert's affidavit goes beyond the permissible ambits of
Rule 44.1. It does more than discuss the substance of Ontario law
and the manner in which it is applied. It seeks to resolve
questions of fact regarding the extent of the Labuda's injuries.
Like the reports in Lithuanian Commerce Corp., ID Sec. Systems,
and Hexamedics, it is improper. CONCLUSION
For the foregoing reasons the defendants' combined motion
regarding the application of Ontario law in this case and for
summary judgment  is DENIED.
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