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LABUDA v. SCHMIDT

September 19, 2005.

LYNDA C. LABUDA and MARK LABUDA, Plaintiffs,
v.
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.

I

  BACKGROUND

  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 ("Combined Motion")."

  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.

  II

  ANALYSIS

  A

  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, ...


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