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Future Environmental, Inc. v. Forbes

United States District Court, N.D. Illinois, Eastern Division

July 3, 2014



AMY J. ST. EVE, District Judge.

Before the Court is Plaintiff's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). For the following reasons, the Court grants Plaintiff's summary judgment motion.


I. Northern District of Illinois Local Rule 56.1

Because Defendant is a pro se litigant, Plaintiff served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by Northern District of Illinois Local Rule 56.2. The notice explains the consequences of failing to properly respond to a motion for summary judgment and statement of material facts under Federal Rule of Civil Procedure and Local Rule 56.1.

Local Rule 56.1 "is designed, in part, to aid the district court, which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information, ' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). "The opposing party is required to file 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." Id. (citing N.D.Ill. R. 56.1(b)(3)(B)). Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that requires the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

In general, the purpose of Local Rule 56.1 statements and responses is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) ("statement of material facts did [] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture"). "When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion." Cracco, 559 F.3d at 632; see also Frey Corp. v. City of Peoria, Ill., 735 F.3d 505, 513 (7th Cir. 2013).

In sum, "[f]or litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for summary judgment. The purpose of the local rule is to make the summary judgment process less burdensome on district courts, by requiring the parties to nail down the relevant facts and the way they propose to support them." Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012).

Defendant has failed to respond to the motion for summary judgment more than one month after the deadline for his response. As such, the Court accepts all properly supported assertions in Plaintiff's statement of material facts at true to the extent that the facts are supported in the record. See L.R. 56.1(b)(3)(C); Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013); Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). In addition, the Court is not required to scour the record looking for factual disputes nor is the Court required to piece together Defendant's arguments for him. See Diadenko v. Folino, 741 F.3d 751, 757 (7th Cir. 2013); see also Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989) ("A district court need not scour the record to make the case of a party who does nothing."). Defendant's failure to comply with Local Rule 56.1, however, does not result in an automatic grant of summary judgment in favor of Plaintiff. Instead, the Court still must evaluate all facts in the light most favorable to him, the non-moving party. See Fed. R. Civ, P. 56(e)(2); Keeton, 667 F.3d at 884. With these standards in mind, the Court turns to the relevant facts of this case.

II. Relevant Facts

Plaintiff Future Environmental, Inc. ("Future") is an Illinois corporation with its principal place of business in Mokena, Illinois. Defendant Jonathan Forbes ("Forbes") is a citizen of the State of Indiana. The matter in controversy exceeds $75, 000, thus the Court has diversity jurisdiction.

Future employed Defendant Forbes as a truck driver from May 18, 2009 through December 7, 2012. (R. 42-2 ¶ 4.) Future contracts with Wright Express Corporation ("WEC") for fleet fuel cards for the drivers of its fleet of trucks. WEC is a fuel card company that issues fuel cards to companies with fleets in order to make fuel purchases easier for drivers and to consolidate fuel purchase expense reporting. ( Id. ¶ 5.) Future gave each of its drivers his own WEC card. ( Id. ¶ 6.) Each WEC card had a different account number and each driver was given his own personal identification number ("PIN") to use with his WEC card. ( Id. ) During the relevant time, Future assigned each driver a PIN that was the last 4 digits of the driver's social security number. ( Id. ¶ 7.) Future attempted to maintain secrecy of its assigned PINs from other drivers and gave its drivers specific instructions regarding the WEC card. Specifically, Future instructed its drivers that (1) each driver could only use the card for company fuel purchases; (2) each driver had his own PIN to use with the card; (3) the driver maintained the responsibility for his WEC card; and (4) the driver could not give the card to anyone else to use. ( Id. ¶ 9.) In order to purchase gas at a pump, the driver had to insert his PIN to identify his use of the card. ( Id. ¶ 10.)

In approximately early December 2012, a third party informed Future that Forbes was using his WEC card to sell fuel at very large discounts to people at gas stations. ( Id. ¶ 11.) After receiving this tip, Future's management did an internal review of the WEC fuel purchase reports, especially because it had not closely monitored the WEC monthly reports. These WEC reports revealed that Defendant Forbes was using his WEC card to purchase fuel far beyond the amount necessary for use of his company vehicles. ( Id. ¶ 14.) On December 1, 2012, for example, Forbes made 22 separate purchases of fuel, totaling 2, 116.011 gallons of fuel. ( Id. ¶ 15.) Twenty-one of these purchases were made within a period of only two hours. ( Id. ) In addition, 13 of the 22 purchases were less than five minutes apart from the prior purchase. ( Id. ) Thirteen of the purchases occurred at the same gas station. ( Id. ) The total cost to Future for the gas purchases on Forbes' WEC fuel card on December 1, 2012, was $8, 326.41. ( Id. ) Forbes also obtained other drivers' WEC PINs and used those PINs to make fuel purchases on his card. ( Id. ¶¶ 17, 18, 19.)

On December 7, 2012, Steve Lempera, Future's President, went to Forbes' job site to confront him regarding his improper use of the fuel card. Forbes handed his WEC fuel card to Lempera. Lempera terminated Forbes's employment that same day. Shortly after Lempera terminated Forbes' employment, Forbes came to Lempera's office at Future's headquarters in Mokena, Illinois. ( Id. ¶ 24.) Forbes admitted to Lempera that he was improperly using the WEC card to make fuel purchases for other people. ( Id. ¶ 25.) Forbes told Lempera that he would repay Lempera for the improper purchases, ...

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