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Genova v. Kellogg

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

June 25, 2015

JEROME P. GENOVA, Plaintiff,


CHARLES P. KOCORAS, District Judge.

This matter comes before the Court on the motion for summary judgment of Plaintiff Jerome Genova ("Plaintiff") pursuant to Federal Rule of Civil Procedure 56 ("Rule 56") against Defendants Eric Kellogg ("Kellogg"), Joseph Letke[1] ("Letke"), Letke & Associates, Inc. ("L&A") and the City of Harvey (collectively "Defendants"). For the following reasons, the Court denies Plaintiff's motion for summary judgment. Any remaining discovery proceedings are to continue proceeding in front of Magistrate Judge Schenkier.


I. Facts

The following facts are taken from the parties' respective statements, responses and exhibits filed pursuant to Northern District of Illinois Local Rule 56.1 ("Rule 56.1"). We review each Rule 56.1 statement and disregard any argument, conclusion or assertion unsupported by the evidence in the record. The Court is mindful of its duty to weigh the credibility of the evidence presented by all parties and only relies on relevant, admissible evidence when ruling on the motion for summary judgment.

A. Deficient Pleadings

Plaintiff argues that Defendants failed to: (i) properly dispute facts in accordance with Rule 56.1; and (ii) plead their statement of additional facts as required. For any disagreements with Plaintiff's facts, Defendants were to make specific references to affidavits, parts of the record, and other supporting materials relied upon. See N.D.Ill. L.R. 56.1(b)(3)(B). However, it is within the Court's discretion to deem an opposing party's properly supported factual assertions admitted following a violation of the Local Rules, but it may also exercise that discretion "in a more lenient direction." See L.R. 56.1(b)(3)(C); Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013). The Court acknowledges that some of Defendants' responses contain only a citation without any factual statement, or a statement of fact without a specific citation to an exhibit, but in their response to Plaintiff's 56.1 Statement of Facts, Defendants do note corresponding exhibits in the record before stating whether a dispute exists. The Court will utilize its discretion to show leniency and will not deem admitted the facts at issue that are plainly disputed in the record. See Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 397 (7th Cir. 2012) (reversing summary judgment where facts not in memorandum were in L.R. 56.1(b) statement, and it was thus "clear from the summary judgment filings in the district court that dispute of material fact remains").

As for the sufficiency of Defendants' statement of additional facts, eighteen of the nineteen paragraphs do not include a single citation to supporting materials in the record. Thus, for those additional facts Defendants failed to properly plead, the Court also uses its discretion and will not consider them as part of the record.

B. Undisputed Facts

After his term as mayor of the City of Calumet ended, Letke employed Plaintiff to work at L&A from June 1, 2009 to April 30, 2010, while Letke served as the comptroller for the City of Harvey. L&A was a certified public accounting firm based in Glenwood, Illinois. Plaintiff served as L&A's marketing director on a contractual basis. Plaintiff was not an employee of the City of Harvey. On April 29, 2010, Letke terminated Plaintiff's employment with L&A.

During Plaintiff's employment with L&A, Kellogg was the mayor of the City of Harvey. On several occasions, Kellogg allegedly threatened to end Letke's employment as the comptroller if he did not fire Plaintiff, due to Plaintiff's previous support of Kellogg's political rival, Nicholas Graves ("Graves"). As background, the reason why Graves was Kellogg's alleged political opponent is that in 1999, Kellogg ran for mayor of City of Harvey against Graves. Plaintiff and his ex-wife, Rosemaria, supported Graves, who eventually won the election. In 2003, Graves and Kellogg again ran against each other in the City of Harvey's mayoral election, and Plaintiff and Rosemaria again supported Graves. Rosemaria served as Graves's campaign manager during the 2003 election. Kellogg defeated Graves in the 2003 rematch. Plaintiff and Rosemaria allegedly maintained a personal and professional relationship with Graves since his 2003 defeat up until his death. Rosemaria gave the eulogy at Graves' funeral where Kellogg also spoke on behalf of Graves.

According to a memorandum written by Kellogg to Alderman Nesbit, on December 16, 2008 (the "Memorandum"), "Mr. Letke is not an employee, rather an agent and independent contractor of the City of Harvey..." The Memorandum cites language from Section 2-16-020 of the City of Harvey Municipal Code, which "sets out the boundaries and duties of the position of comptroller, " stating "[t]he comptroller shall be appointed by the mayor, by and with the advice and consent of the city council."

C. Procedural History

On April 26, 2012, Plaintiff filed a one-count complaint pursuant to 42 U.S.C. ยง 1983 ("Section 1983"), alleging wrongful termination in violation of the First Amendment. On February 28, 2013, this Court denied Defendants' motions to dismiss. On August 21, 2014, Plaintiff filed a motion to compel Letke to appear for his deposition, or in the alternative, for default judgment, which Magistrate Judge Schenkier entered and continued on August 26, 2015. Even with a court order, Letke still failed to appear for his deposition. On October 1, 2015, Plaintiff filed a motion for default judgment as to Letke and L&A. On October 30, 2014, the Court adopted Magistrate Judge Schenkier's report and recommendation, granting Plaintiff's motion for default judgment against Letke, personally, and denied as to L&A. The parties subsequently filed their prove-up affidavits and papers. However, on December 11, 2014, the Court deferred the entry of default judgment against any and all Defendants because the entry of default judgment against one defendant may be barred in some cases where a plaintiff alleges joint conduct of defendants. See Genova v. Kellogg, No. 12-CV-3105 (N.D. Ill., Order, Dkt. 128, entered Dec. 11, 2014). To prevent possible inconsistencies with the Court's future liability and damages determinations for the other Defendants, the Court decided to continue with the determination of liability before entering judgment against Letke for over $650, 000.00.

Magistrate Judge Schenkier stayed further deposition discovery pending our ruling on the instant motion for summary judgment, filed by Plaintiff on February 24, 2015. Defendants ...

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