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S.P. Richards Co. v. Business Supply Corp.

September 5, 2008


The opinion of the court was delivered by: Judge Joan H. Lefkow


Plaintiff, S.P. Richards Company ("S.P. Richards"), filed a three-count complaint against defendants, Business Supply Corporation ("Business Supply"), Michael Delvin, and Donna Delvin (collectively, "defendants").*fn1 Count I is a breach of contract claim against Business Supply. Count II is a claim for recovery on a promissory note against Business Supply, Michael Delvin, and Donna Delvin. Count III is a breach of guaranty claim against Michael Delvin and Donna Delvin. Before the court is S.P. Richards's motion pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on all three counts. For the following reasons, S.P. Richards's motion [#33] will be granted.


Under Local Rule 56.1, a party moving for summary judgment must file a statement of material facts. N.D. Ill. R. 56.1(a). The rule also requires a party opposing a motion for summary judgment to file, in addition to a responsive memorandum of law, a response to the movant's statement of material facts. N.D. Ill. R. 56.1(b)(3). Failing to file such a response has adverse consequences: "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Id. (emphasis added). S.P. Richards filed a statement of material facts as required by Local Rule 56.1. Defendants, however, have failed to file a response to S.P. Richards's statement of material facts. All material facts set forth in S.P. Richards's statement are therefore deemed admitted to the extent that they are adequately supported by citations to appropriate evidence. See id.; see also Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921--22 (7th Cir. 1994) ("We have . . . repeatedly upheld the strict enforcement of [Local Rule 56.1], sustaining the entry of summary judgment when the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's version of the facts.").


S.P. Richards is a Georgia corporation in the business of selling office supplies. Pl.'s Local Rule 56.1 Statement of Uncontested Facts (hereinafter "SoF") at ¶¶ 4, 6. Business Supply is an Illinois corporation whose president was Michael Delvin and whose secretary was Donna Delvin. SoF ¶¶ 2, 10. Business Supply also did business under the name of "" Id. ¶ 8.

On November 23, 2001, Business Supply applied for a credit account with S.P. Richards by means of a credit application executed by Michael Delvin. Id. ¶¶ 9, 11. This application provides that "should it become necessary to place the account with a collection agency or attorney, the Applicant agrees to pay all collection costs and attorney fees in addition to all other sums due." Pl.'s Mot., Ex. 1; SoF ¶ 12. At the request of Business Supply, S.P. Richards sold and delivered office supplies to Business Supply. Id. ¶ 7. There is an unpaid balance of $19,420.89 due for these goods. Id.

S.P. Richards is the holder of a certain promissory note executed by Business Supply, Michael Delvin, and Donna Delvin. Id. ¶ 13. There is a principal balance of $101,199.42 due on this note, which is in default. Id.

On November 13, 2006, Michael and Donna Delvin personally guaranteed the obligations of Business Supply to S.P. Richards. Id. ¶ 16.


Summary judgment obviates the need for a trial where 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). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in the pleadings, depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) & advisory committee's notes.

The party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact is one which might affect the outcome of the suit. Insolia, 216 F.3d at 598--99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 261, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).


Because the defendants have asserted the same affirmative defenses in response to all of S.P. Richards's claims, the court will first consider whether S.P. Richards has presented evidence sufficient to satisfy the elements of each claim. Then, after discussing the three claims, ...

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