United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. ROWLAND, United States Magistrate Judge
Bay Group Health Care, LLC, Norman Bangalan, and Marilyn
Banga-lan (Plaintiffs) filed a single-count complaint for
legal malpractice against Defendants. On September 2, 2015,
this Court dismissed defendants Thomas Lombardo and Tracy
Steindel without prejudice. Two defendants remain in the
lawsuit: Gabriel Mathless and the law firm of Ginsberg Jacobs
(hereafter, “Defendants”). The Defendants have
moved for summary judgment. The parties have consented to the
jurisdiction of the United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c).
reasons set forth below, Defendants' Motion for Summary
Judgment is GRANTED.
In March 2011, Open Arms Health Care, Inc. took out a loan
from Bridgeview Bank (Bank). (Dkt. 67, ¶ 13). Open Arms
issued a promissory note to the Bank evidencing its
obligations pursuant to the loan agreement (Note), and each
Plaintiff signed a commercial guarantee promising payment on
the Note (hereafter, “Guarantees”). (Id.
¶¶ 13-15). Under the terms of the Guarantees,
Plaintiffs “irrevocably authorize[d] and empowere[d]
any attorney-at-law to appear in any court of record and to
confess judgment against [Plaintiffs] for the unpaid amount
of this Guaranty…” (Id. ¶ 16). The
same provision stated that Plaintiffs “waive[d] and
release[d] any and all claims or causes of action which
Guarantor might have against any attorney acting under the
terms of authority which Guarantor has granted herein arising
out of or connected with the confession of judgment
Arms failed to make the payments required under the Note.
(Id. ¶ 18). Pursuant to the Guarantees, the
Bank represented by the law firm Ginsberg Jacobs, filed an
action for confession of judgment against each Plaintiff.
(Id. ¶ 20). Mathless, an attorney at Ginsberg
Jacobs, signed documents confessing judgment on behalf of
Plaintiffs. (Id. ¶¶ 21-22). Based on these
confessions, on February 28, 2013, the Circuit Court of Cook
County entered a judgment in favor of the Bank and against
Plaintiffs in the amount of $823, 018.18. (Id.
¶ 23). Plaintiffs were later suc- cessful in moving to
disqualify Ginsberg Jacobs as counsel for the Bank and also
in vacating the judgment against them in the state court.
(Id. ¶ 24; Dkts. 33-3, 33-4).Plaintiffs
eventually settled the Bank's claims. (Dkt. 67, ¶
never sought an agreement for legal services from either
Ginsberg Jacobs or Mathless. (Id. ¶ 26).
Plaintiffs never paid Ginsberg Jacobs or Mathless for legal
services. (Id. ¶ 30). Plaintiffs never sought
or received legal advice from Ginsberg Jacobs or Mathless,
and never divulged or received confidential information.
(Id. ¶¶ 27-29). Plaintiffs never had any
direct communication with Ginsberg Jacobs or Mathless.
(Id. ¶ 31). Plaintiffs never relied on any
representation by Defendants that they were Plaintiffs'
legal counsel. (Id. ¶ 32).
SUMMARY JUDGMENT STANDARD
judgment is proper only if the “materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
“shows that 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), (c)(1)(A); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
Court views the evidence in the light most favorable to
Plaintiffs, the nonmov-ing party, and draws all reasonable
inferences in their favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Popovits v. Circuit
City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999).
Once the moving party shows there is no genuine issue of fact
for trial, the nonmoving party must come forward with
“specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 250
(citation omitted). To avoid summary judgment, Plaintiffs
must produce affirmative evidence and cannot rely on
pleadings alone. Id. at 257; see also
Celotex, 477 U.S. at 324 (Rule 56 “requires the
nonmoving party to go beyond the pleadings and by her own
affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for
trial.”) (citation omitted).
the relevant facts are undisputed, questions of law may be
decided on summary judgment. Bourke v. Conger, 639
F.3d 344, 347 (7th Cir. 2011); Hamilton v. Commonwealth
Edison Co., No. 11 CV 1752, 2011 U.S. Dist. LEXIS 71733,
at *4 (N.D. Ill. July 5, 2011). A district court sitting in
diversity attempts to predict how the Illinois Supreme Court
would decide issues of state law. Woidtke v. St. Clair
Cty., 335 F.3d 558, 562 (7th Cir. 2003).
move for summary judgment on two grounds: (1) Defendants owed
Plaintiffs no duty of care upon which a legal malpractice
claim could be premised because there was no attorney-client
relationship between Plaintiffs and Defendants; and (2)
Plaintiffs waived and released any claim against Defendants
under the terms of the Guarantees Plaintiffs signed. (Dkt. 63
respond that they “authorized and empowered” the
Bank to retain counsel for them “in the event of a
claimed default on the note.” (Dkt. 66 at 5). They
contend that when Mathless signed the confessions of judgment
on their behalf while representing the Bank, he and his law
firm violated Rule 1.7 of Illinois Rules of Professional
Conduct of 2010 prohibiting conflicts of interest (hereafter,
“Rule 1.7”). (Id. at 3, 6-7). Plaintiffs
also argue, based on the state court litigation, that
Defendants are equitably estopped from denying the existence
of the attorney-client relationship. (Id. at 5).
Finally Plaintiffs deny that they waived their claim against
Defendants. (Id. at 12-13). This Court finds summary
judgment in favor of Defendants is proper.
There are no disputed ...