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Calvert v. Office Depot, Inc.

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

February 28, 2017

ANTOINETTE CALVERT, Plaintiff,
v.
OFFICE DEPOT, INC.; THYSSENKRUPP ELEVATOR CORPORATION; THE SCHINDLER GROUP, LTD.; and SCHINDLER ELEVATOR CORPORATION, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN W. DARRAH United States District Court Judge.

         Plaintiff Antoinette Calvert filed a personal-injury action in the Circuit Court of Cook County, Illinois, on June 2, 2014, under theories of negligence, premises liability, and res ipsa loquitur, against Defendant Office Depot, Inc. (Dkt. No. 1, Ex. A.) In an underlying Complaint, Plaintiff alleges that she fell on the escalator at an Office Depot store located at or near 6 South State Street in Chicago. Plaintiff alleges that the escalator was in disrepair, not maintained in a proper or safe condition, and failed to comply with safety and maintenance requirements. Defendant Thyssenkrupp Elevator Corporation (“TKE”) is an escalator maintenance company hired by Office Depot to service and maintain escalators in stores, including the subject elevator.

         Office Depot removed the action to the Northern District of Illinois on August 11, 2014, pursuant to 28 U.S.C. § 1332(a), on the basis of complete diversity between the parties. (Dkt. No. 1.) Plaintiff subsequently filed her Second Amended Complaint on January 14, 2015, asserting additional claims against TKE, the Schindler Group, and Schindler Elevator Corporation. (Dkt. No. 30.) On May 18, 2016, Office Depot filed cross-claims against TKE and the other Defendants. (Dkt. 125.) Office Depot and TKE have now filed Cross-Motions for Summary Judgment [151, 162] on Office Depot's Cross-Claim Count IV, which alleges breach of contract.

         LOCAL RULE 56.1

         Local Rule 56.1(a)(3) requires the moving party to provide “a statement of material facts as to which the party contends there is no genuine issue for trial.” Ammons v. Aramark Uniform Servs., 368 F.3d 809, 817 (7th Cir. 2004). Local Rule 56.1(b)(3) requires the nonmoving party to admit or deny every factual statement proffered by the moving party and to concisely designate any material facts that establish a genuine dispute for trial. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005). A nonmovant's “mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). In the case of any disagreement, the nonmoving party must reference affidavits, parts of the record, and other materials that support his stance. Local Rule 56.1(b)(3)(B). To the extent that a response to a statement of material fact provides only extraneous or argumentative information, this response will not constitute a proper denial of the fact, and the fact is admitted. See Graziano v. Vill. of Oak Park, 401 F.Supp.2d 918, 936 (N.D. Ill. 2005). Similarly, to the extent that a statement of fact contains a legal conclusion or otherwise unsupported statement, including a fact that relies upon inadmissible hearsay, such a fact is disregarded. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant may submit additional statements of material facts that “require the denial of summary judgment.”

         BACKGROUND

         The following facts are taken from the parties' statements of undisputed material facts submitted in accordance with Local Rule 56.1.

         Defendant Office Depot is a Delaware corporation with its principal place of business in Boca Raton, Florida. (Office Depot Statement of Facts (“OSOF”), ¶ 2.) Defendant TKE is a Delaware corporation with its principal place of business in Georgia. (Id. ¶ 5.) Prior to the incident involving Plaintiff, Office Depot was a lessee of a portion of the premises located at 6 South State Street. (Id. ¶ 7.) Office Depot entered into a contract with TKE, entitled “Service Agreement.” (Id.) The Service Agreement contains a provision relating to a “statement of work, ” under which TKE: “[A]grees to provide all services and equipment necessary to perform the work (‘Services') as described in the statement of work substantially in the form of Exhibit A attached hereto (‘SOW') as may be entered into between the parties from time to time for the compensation set forth therein. Each SOW shall incorporate the terms and conditions of this Agreement by reference.” (Id. ¶ 8.)

         Prior to Plaintiff's injury, Office Depot and TKE executed “Statement of Work #1” (“SOW #1”). (Id. ¶ 9.) SOW #1 provides that it “shall become part of the referenced [Service] Agreement between the parties.” (Id. ¶ 10.) SOW #1 details TKE's responsibilities in providing maintenance coverage, including maintaining escalators, ensuring that the escalators are operating in a safe manner and within codes, and ensuring the escalators are fully operational at all times. (Id. ¶ 11.) The Service Agreement provided that TKE must maintain insurance as follows:

12. INSURANCE
12.1 [TKE] shall maintain the following policies of insurance covering all Services furnished by [TKE] to Office Depot during the Term of this Agreement:
a. Commercial General Liability (Bodily Injury and Property Damage) Insurance, in an amount not less than Two Million Dollars (2, 000, 000) per occurrence[.]
*****
[TKE] shall provide Office Depot with certificates of insurance for the coverages specified above which shall name Office Depot, Inc. as an additional insured, and shall be primary with respect to the coverage hereunder. The Additional Insured is defended and indemnified for actions arising from [TKE's] acts, actions, omissions or neglects; ...

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