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Teresa Birk v. Gary Stark

May 2, 2013

TERESA BIRK, PLAINTIFF,
v.
GARY STARK, DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM AND ORDER

A. INTRODUCTION AND PROCEDURAL HISTORY

In August 2003, Theresa Birk and Robert Sinn were involved in a vehicular collision in Alexander County, Illinois. Birk hired attorney Gary Stark to file a personal injury suit against Sinn. In August 2005, Stark filed a complaint on Birk's behalf against Sinn. The lawsuit was filed in this District Court, invoked subject matter jurisdiction under the federal diversity statute, and was randomly assigned to the Honorable J. Phil Gilbert, District Judge (Birk v. Sinn, Case No. 05-cv-4144-JPG). On February 13, 2007, that case was dismissed without prejudice by Judge Gilbert, based on the fact that service was not timely effected under Federal Rule of Civil Procedure 4(m).

In November 2011, Teresa Birk filed the above-captioned suit in this Court alleging legal malpractice by attorney Stark in handling the personal injury suit against Sinn ("the underlying action"). The case was randomly assigned to the undersigned District Judge and is set for bench trial on July 29, 2013. A settlement conference is scheduled before the Honorable Donald G. Wilkerson on June 10, 2013.

Now pending before the Court is Plaintiff's February 27, 2013 motion for summary judgment, to which Defendant timely responded on April 10, 2013. Plaintiff was given the opportunity, but declined, to file a reply brief by April 17, 2013 (see briefing schedule at Doc. 41). For the reasons stated below, the Court denies the motion.

B. STANDARD GOVERNING SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment should be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012), citing FED.R.CIV.P. 56(a). A "genuine issue of material fact remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In assessing a summary judgment motion, the district court views all facts in the light most favorable to, and draws all reasonable inferences in favor of, the non-moving party. Anderson v. Donahoe, 699 F.3d at 994, citing Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). Accord Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). Before the non-movant can benefit from this favorable view of the evidence, however, he must first actually place some evidence before the court. Montgomery v. American Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010).

An additional word regarding the burden of proof is warranted here. Rule 56 imposes an initial burden of production on the movant for summary judgment -- he must demonstrate that a trial is not needed. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court of Appeals for the Seventh Circuit recently reiterated how this burden works in the typical case -- i.e., when the summary judgment motion is filed by the party that does not bear the ultimate burden of persuasion at trial:

Where the non-movant bears the ultimate burden of persuasion on a particular issue, . the requirements that Rule 56 imposes on the moving party are not onerous. It does not require the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original). Rather, the movant's initial burden "may be discharged by 'showing' -- that is point[ing] out to the district court -- that there is an absence of evidence to support the nonmoving party's case."

Upon such a showing, the non-movant must then "make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322. The non-movant need not depose her own witnesses or produce evidence in a form that would be admissible at trial, but she must "go beyond the pleadings" . to demonstrate that there is evidence "upon which a reasonable jury could properly proceed to find a verdict" in her favor."

Modrowski v. Pigatto, -- F.3d --, 2013 WL 1395696 (7th Cir. April 8, 2013). See also Marcatante v. City of Chicago, 657 F.3d 433, 439 (7th Cir. 2011); Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 648--49 (7th Cir. 2011), citingCelotex, 477 U.S. at 323.

In the case at bar, though, Plaintiff seeks summary judgment. Here the movant for summary judgment is the party who bears the burden of persuasion at trial. When the party moving for summary judgment also bears the burden of persuasion at trial, that party's initial summary judgment burden is higher.

When a summary judgment movant bears the burden of persuasion at trial (e.g., the movant is the plaintiff, or the movant is a defendant asserting an affirmative defense), she must establish all the essential elements of her claim (or defense). See Celotex, 477 U.S. at 322. See also Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012) (if summary judgment movant is plaintiff, she must show that the record contains evidence satisfying her burden of persuasion); Adler v. Wal-Mart Stores, Inc., 144 F.3d. 664, 670 (10th Cir. 1998)(at summary judgment stage, party that bears burden of persuasion at trial must come forward with sufficient evidence of each essential element of its prima facie case); Moore's Federal Practice § 56.13(1) (3d ed. 2000) .

To summarize, if the summary judgment movant does not bear the burden of proof at trial, he can prevail just by showing an absence of evidence to support any essential element of the non-movant's case. But if the summary judgment movant does bear the burden of proof at trial, he can prevail only by proving each element of his case with evidence sufficiently compelling that no reasonable jury could return a verdict for the non-movant.Celotex, 477 U.S. at 331 ("If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence . that would entitle it to a directed verdict if not ...


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