United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. DARRAH United States District Court Judge.
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
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.
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.”
following facts are taken from the parties' statements of
undisputed material facts submitted in accordance with Local
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.)
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:
12.1 [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