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Dvore v. Casmay

September 29, 2008


The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge


Currently pending before the Court are cross-motions for summary judgment by Defendant North Community Bank ("NCB") and Plaintiff Irene Dvore ("Plaintiff"). For the reasons set forth below, NCB's motion for summary judgment [47] is granted and Plaintiff's cross-motion for summary judgment [71] is denied.

I. Background

Plaintiff filed a three-count complaint initiating this action against all Defendants on June 5, 2006. See [1]. In her Complaint, Plaintiff alleges that: (1) Defendants James E. Casmay ("Casmay"), Sheldon G. Aldridge, and Tracy H. Aldridge violated certain provisions of the Racketeer Influenced and Corrupt Organizations Acts ("RICO") (Count I); (2) Defendants NCB and Syed Humayun ("Humayun") made negligent misrepresentations to her (Count II); and (3) Defendants NCB and Humayun breached a fiduciary duty allegedly owed to Plaintiff (Count III). Id. The Court previously entered defaults against Defendant Casmay on September 12, 2006, and against Defendant Humayun on September 25, 2006. See [19, 23]. NCB filed a motion for summary judgment on Counts II and III. See [47]. Plaintiff subsequently filed a cross-motion for summary judgment on those same counts against NCB on December 6, 2007. See [71]. Both motions are fully briefed and ready for decision.

II. Facts

A. Local Standards On Summary Judgment

The Court takes the relevant facts from the parties' respective Local Rule ("L.R.") 56.1 statements.*fn1 The Court takes no position on whose version of disputed factual matters is true. Local Rule ("L.R.") 56.1 requires that statements of facts contain allegations of material fact, and that the factual allegations be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). The Seventh Circuit teaches that a district court has broad discretion to require strict compliance with L.R. 56.1. See, e.g., Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v. Kwon, 153 F.3d 481, 486 (7th Cir. 1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (collecting cases)).

Where a party has offered a legal conclusion or a statement of fact without offering proper evidentiary support, the Court will not consider that statement. See, e.g., Malec, 191 F.R.D. at 583. Additionally, where a party improperly denies a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems admitted that statement of fact. See L.R. 56.1(a), (b)(3)(B); see also Malec, 191 F.R.D. at 584. The requirements for a response under Local Rule 56.1 are "not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000). In addition, the Court disregards any additional statements of fact contained in a party's response rather than in its statement of additional facts. See, e.g., Malec, 191 F.R.D. at 584 (citing Midwest Imports, 71 F.3d at l317).

B. Pertinent Facts For Purposes of Cross-Motions For Summary Judgment*fn2

Plaintiff resides in Chicago, Illinois and has lived in the same house for almost thirty years. Def. SOF ¶ 1. NCB is an Illinois banking corporation located in Chicago, IL. Id. ¶ 11. Plaintiff, as co-trustee of several family trusts, has experience handling investments, including investments in deposit accounts. Id. ¶¶ 4-8. For example, Plaintiff has opened and closed Certificate of Deposit accounts with various banking institutions, including Builders Bank, Delaware Bank, Parkway Bank and Trust Company, LaSalle Bank, Harris Bank, CIB, North Community Bank and Charter One Bank. Id. ¶ 9. NCB offers certain products to customers, including deposit products such as checking accounts, savings accounts, money market accounts, and certificates of deposit. Id. ¶ 12.

An NCB personal banker is responsible for serving a customer in a variety of ways, including the following: (i) responding to inquiries; (ii) assisting with the opening of accounts, including Certificate of Deposit accounts; and (iii) resolving problems with existing accounts. Pl. SOAF ¶ 1. These duties specifically include telling customers about the current rates for Certificates of Deposit ("CD"s) and asking the customer whether they want to open a CD account or place it with a financial institution. Id.

In October 2002, Syed Humayun, also a defendant in this case, was employed by NCB as a personal banker at the Bank's branch located at 724 W. Diversey, Chicago, IL. Def. SOF ¶ 13. NCB considered Humayun to be a successful salesman in that he often took on many clients and concentrated on cross-selling the Bank's products to customers. Pl. SOAF ¶ 33, McHale Dep. (Ex A.) at 35:4-19; Pl. SOAF ¶ 41. Personal bankers, such as Humayun, were evaluated on their ability to cross-sell the Bank's products as well as their ability to refer business, when the opportunity arose, both within NCB departments and to outside vendors. Pl. SOAF ¶ 33, McHale Dep. (Ex. A) at 52:12-53:9; Pl. SOAF ¶ 35. Those tasks were included in the job descriptions for personal bankers. Pl. SOAF ¶ 37.

On October 7, 2002, Humayun met with Plaintiff at the Diversey branch. Def. SOF¶ 14. On that date, at Plaintiff's request, Humayun opened a $100,000.00 CD in the name of Plaintiff, Trustee for Minnie Dvore, No. 1919-1 10669, with an annual 3% yield on a twelve month term. Id. During that meeting, Plaintiff asked Humayun why interest rates were so bad on CDs. Pl. SOAF ¶ 84. In response to the question, Humayun gave Plaintiff the business card of James Casmay (another defendant in this case). Id. ¶ 86. Humayun also told Plaintiff that the Bank "really isn't in the CD business. We do it as a convenience for our customers." Id. ¶ 87, Dvore Dep. (Ex. H) at 73:21-23. The twenty-five minute meeting between Humayun and Plaintiff was the only interaction between the parties. Def. SOF ¶ 15.

By providing Casmay's business card to Plaintiff, Humayun "steered [Plaintiff] to make an investment with another financial institution, namely Century Financial." Pl. SOAF ¶ 81.*fn3

Plaintiff relied on NCB because "they are a viable financial institution, she assumed that they trained their people properly and she did not expect to get bad financial advice from NCB." Id. ¶ 88.*fn4 Plaintiff "was more likely to go to Century Financial because Humayun was a North Community Bank personal banker and she assumed that he knew about finances as a personal banker." Id. ¶ 89.*fn5 Plaintiff had no information to indicate that Century Financial was a fraudulent operation from its inception until the time she invested with Century Financial through Casmay. Id. ¶ 90.

In December, 2002, Plaintiff called Casmay and told him that she was referred to him by a personal banker at the NCB concerning CDs. Id. ¶ 80. Before contacting Casmay, Plaintiff conducted an inquiry on her own regarding CDs by looking through the newspaper and making some phone calls. Def. SOAF ¶ 94, Dvore Dep. (Ex. H) at 74: 17-21. On December 3, 2002, Plaintiff met with Casmay at Uptown Bank in order to purchase from Century Financial Services a $50,000.00 CD, No. 02-1224006247, with a 6% annual yield on three-year term in the name of the Rueben Dvore Family Trust. Def. SOF¶ 17, 20. Plaintiff learned from Casmay that the CD in question would be held at Ocean Bank of Miami, FL and was FDIC-insured. Id. ¶¶ 18, 19. Plaintiff had no contact with Ocean Bank before making her initial investment with Century Financial. Id. ¶ 23. The Truth-in-Savings information sheet received by Plaintiff from Casmay stated that "Century Financial is not a depository. Deposits are insured by the Federal Deposit Insurance Corporation (FDIC) under ...

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