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On-Site Screening, Inc. and Ronald L. Lealos v. United States of America

August 3, 2011


The opinion of the court was delivered by: Judge Joan B. Gottschall



Plaintiffs On-Site Screening, Inc. and Ronald L. Lealos (collectively, "On-Site") filed a complaint seeking to hold the United States liable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680, for the loss of property allegedly seized by the Food and Drug Administration ("FDA"). The court detailed the background in its prior memorandum opinion, see On-Site Screening, Inc. v. United States, No. 09 C 6084, 2010 WL 3025039 (N.D. Ill. July 30, 2010), and thus only briefly sketches the relevant facts here.

In 2004, On-Site was storing biological samples-some of which were HIV positive-in a facility in Bedford Park, Illinois. On-Site had obtained the samples as part of its attempt to develop a medical device capable of detecting HIV in saliva. When these samples were discovered by the Village of Bedford Park, their existence was reported to FDA. Shortly thereafter, the samples were removed from the premises. On-Site sent a request to FDA asking that the samples be stored in a freezer. The samples were in fact stored under appropriate conditions with the Illinois Department of Public Health. At some point, however, the freezer containing the samples failed. FDA did not discover the failure until well after the samples had been destroyed. Upon being informed of the loss, On-Site submitted an administrative claim to the Department of Health and Human Services in which it sought close to $2 million for the destruction of its property. That claim was rejected, and On-Site filed a complaint in this court seeking compensation for the loss of the samples.

The government moved to dismiss, arguing that the FTCA's waiver of sovereign immunity did not extend to tort actions arising from the detention of goods by a law enforcement officer, see 28 U.S.C. § 2680(c), and that the only relevant exception (forfeiture under § 2680(c)(1)) did not apply. This court found that the facts as pleaded established that FDA had "detained" the goods, but on the record before it, the court was unable to conclusively determine (1) whether that detention was effected "by a law enforcement officer," or (2) whether FDA had seized the property "for the purpose of forfeiture." See On-Site Screening, 2010 WL 3025039, at *3-4. Thus, the court denied the government's motion, and provided the parties with a limited discovery period in which to investigate these issues. Id. at *5. The court also informed the parties that the government would be permitted to move for summary judgment upon completion of discovery. (See Mem. Opinion, ECF No. 19.)

After discovery was completed, On-Site sought leave to file an amended complaint.*fn1 Upon being informed that the government wished to file a motion for summary judgment, the court entered a combined briefing schedule. Both issues are now fully briefed. For the reasons set forth below, the motion for summary judgment is granted, and the motion for leave to file an amended complaint is denied as futile.


Once a responsive pleading is filed, a plaintiff can amend its complaint "only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). That is not to say that leave is automatically granted; in fact, "[District] courts have broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile." Johnson v. Cypress Hill, 641 F.3d 867, 872 (7th Cir. 2011) (quoting Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009)) (alteration in original). "An amendment is a 'futile gesture' if the amended pleading could not survive a motion for summary judgment." Wilson v. Am. Trans Air, Inc., 874 F.2d 386, 392 (7th Cir. 1989).

Summary judgment is warranted where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). On summary judgment, all facts and any inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 752 (7th Cir. 2010). The court is not required to draw every conceivable inference in the non-movant's favor; instead, only reasonable inferences must be drawn. Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009).

Further, "[t]he nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts"; a mere "scintilla of evidence in support of the nonmoving party's position will be insufficient to survive a summary judgment motion." Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010). Thus, once the moving party has satisfied its initial burden of "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact," Creditor's Comm. of Jumer's Castle Lodge, Inc. v. Jumer, 472 F.3d 943, 946 (7th Cir. 2007) (internal quotations and citations omitted), the non-moving party must come forward with sufficient evidence to "allow a jury to render a verdict in [its] favor." McPhaul v. Bd. of Comm'rs, 226 F.3d 558, 563 (7th Cir. 2000).


A. The Government's Motion for Summary Judgment

As a preliminary matter, the court must address On-Site's Response to the government's Local Rule 56.1 statement. The parties are obliged to comply with this court's local rules. See Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630-31 (7th Cir. 2010) ("We have routinely held that a district court may strictly enforce compliance with its local rules regarding summary judgment motions."). Local Rule 56.1(b) requires that the party opposing summary judgment file a "concise response to the movant's statement"; that response mustcontain "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). The rule warns that "[a]ll 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."

Here, On-Site's responses often take the form of unsupported argument, as opposed to the concise response required. In addition, On-Site directs the court's attention to record citations that do not support On-Site's interpretation of the disputed fact. As one illustrative example, the government's third statement of fact ("GSOF") says that "[Special Agent] Ellis investigates possible criminal violations, a function distinct from the ...

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