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Hare v. Custable

August 31, 2009


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

Judge Robert M. Dow, Jr.


Currently pending before the Court is Plaintiff Brad L. Hare's("Hare") motion for partial summary judgment against Defendant Frank J. Custable ("Custable") [105], which was originally filed and fully briefed by the parties in state court.*fn1 For the reasons set forth below, Plaintiff's motion [105] is respectfully denied.

I. Procedural Background

This case arises out of a number of business ventures between Plaintiff Hare and Defendant Custable. On March 15, 2002, Hare filed his initial three count complaint in Illinois state court. Hare has since amended his complaint, which now contains more than thirty counts, eight times.*fn2 Most recently, on June 22, 2007, Hare sought and was granted leave to amend his complaint to seek relief pursuant to the federal Racketeering and Criminal Organizations Act, 28 U.S.C. § 1983 (commonly referred to as RICO). At the time that the eighth amended complaint was filed, this matter had been pending in state court for more than five years. Shortly after the RICO claim was added, on July 3, 2007, Custable and other individual defendants removed this case to federal court.

Hare filed the motion for partial summary judgment [105] that is currently before the Court while the case still was pending in the Circuit Court of DuPage County. Shortly thereafter, Hare filed an affidavit [106] and a memorandum [107] in support of the motion for partial summary judgment. Custable filed a response [109] and supporting affidavit [110], and Hare filed a reply brief [108]. Because the motion at issue was fully briefed in the state court pursuant to the Illinois rules, the parties have not filed statements of material facts pursuant to Local Rule ("L.R.") 56.1.

The Court has substantial discretion in the enforcement of L.R. 56.1. See Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) ("whether to apply [L.R. 56.1] strictly or to overlook any transgression is one left to the district court' s discretion"); Weyneth v. Micromatic Spring & Stamping, Inc., 2004 WL 1093483, at *1 n.1 (N.D. Ill. May 17, 2004) (exercising discretion to overlook parties' violations of L.R. 56.1). The Court may exercise that discretion to waive the requirement that the parties file L.R. 56.1 statements. See Riemma v. Bekins Van Lines Co., 1996 WL 99899, at *1 n.2 (N.D. Ill. Feb. 29, 1996) (converting defendant' s motion to dismiss into a motion for summary judgment, waiving local rule requiring the filing of statements of undisputed material facts and drawing facts from allegations of amended complaint); Banos v. City of Chicago, 2004 WL 626154 (N.D. Ill. Mar. 25, 2004) (granting plaintiffs' Motion to Waive L.R. 56.1(b)(3)). Here, in light of the fact that this case was initiated approximately seven years ago, and the instant motion for partial summary judgment was fully briefed in state court, the Court will exercise its discretion to excuse the parties from their obligation to file L.R. 56.1 statements.

The waiver of L.R. 56.1 statements will not prejudice the parties. Under Illinois law, "[a]ny time after the opposite party has appeared or after the time within which he or she is required to appear has expired, a plaintiff may move with or without supporting affidavits for a summary judgment in his or her favor for all or any part of the relief sought." 735 ILCS 5/2-1005(a). The movant "bears the initial burden of introducing competent evidence that, if uncontradicted, entitles him or her to judgment as a matter of law." Willett v. Cessna Aircraft Co., 851 N.E.2d 626, 634 (Ill. App. Ct. 2006). If the moving party satisfies this initial burden of production, the burden shifts to the nonmoving party. Id. "In order to withstand a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact." Salinas v. Chicago Park Dist., 545 N.E.2d 184, 186 (Ill. App. Ct. 1989).

Similarly, under the Federal Rules of Civil Procedure, a party "may move for summary judgment at any time." American Nurses' Ass'n v. State of Ill., 783 F.2d 716, 729 (7th Cir. 1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ' the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." CeloteX Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has submitted a properly supported motion, to avoid summary judgment, the federal rules -- like the Illinois rules --require the opposing party to go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial," and to present "evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 252 (1986) (internal quotation marks and citation omitted). Because the Illinois procedural rules governing motions for summary judgment are substantially similar to the federal rules, the parties were on notice of their respective burdens. Therefore, the parties will not be prejudiced by the application of the federal standard, despite that fact that the motion was briefed under the (substantially similar) Illinois standard.

Moreover, waiver of L.R. 56.1 statements is appropriate here because the summary judgment papers provide the Court with the requisite information. Hare' s motion is supported by an affidavit and sets forth the material facts as to which Hare contends there is no genuine issue and that he claims entitle him to a judgment as a matter of law. Likewise, Custable' s response sets forth additional facts he contends require the denial of summary judgment, and is supported by an affidavit.

II. Factual Background

In the ordinary case, the Court takes the relevant facts from the parties'respective L.R. 56.1 statements. Because the Court has waived the requirements of L.R. 56.1 in this case, the Court takes the relevant facts primarily from Plaintiff's Fifth Amended Complaint ("FAC"), Defendant' s Answer to Fifth Amended Complaint ("Answer"), the Affidavit of Brad Hare in Support of Motion for Partial Summary Judgment ("Hare Aff.") [106], Defendant' s Response ("Resp.") [109], and the Affidavit of Frank J. Custable, Jr. ("Custable Aff.") [110].

Hare and Custable were engaged in a number of business ventures together, including Power Direct, Inc. ("PDI") (FAC at ¶ 5; Answer at ¶ 5), a direct mail advertising business (Custable Aff. at ¶ 4). PDI was a Nevada corporation, which has since dissolved. FAC at ¶ 5; Answer at ¶ 5. Hare and Custable were PDI' s sole shareholders. Id. Hare owned 35% of PDI stock and was a director for a time; Custable owned the remaining 65% of PDI stock and was the President and a director of the company for a time. FAC at ...

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