United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE, District Court Judge.
March 24, 2015, Plaintiff Wisconsin Central Ltd.
(“Wisconsin Central”) filed a one-count Complaint
against Defendant TiEnergy, LLC (“TiEnergy”)
seeking demurrage charges in the amount of $104, 595.00
pursuant to the Interstate Commerce Commission Termination
Act (“ICCTA”), specifically, 49 U.S.C. §
10743. On October 13, 2015, Defendant/Third-Party
TiEnergy filed a First Amended Third-Party Complaint against
Third-Party Defendant Allied Track Services
(“Allied”) seeking indemnification, contribution,
and damages for breach of contract in relation to Plaintiff
Wisconsin Central's demurrage charges.
the Court are Plaintiff Wisconsin Central's Federal Rule
of Civil Procedure 56(a) motion for summary judgment against
Defendant TiEnergy and Defendant TiEnergy's Rule 56(a)
cross-motion for summary judgment against Plaintiff Wisconsin
Central in relation to Wisconsin Central's Complaint
against TiEnergy. Also before the Court is Third-Party
Defendant Allied's Rule 56(a) summary judgment motion
against Third-Party Plaintiff TiEnergy concerning the
TiEnergy's First Amended Third-Party Complaint.
following reasons, the Court grants Wisconsin Central's
and Allied's motions for summary judgment [51, 52] and
denies TiEnergy's motion for summary judgment . In
addition, the Court grants TiEnergy's motion to strike
Allied's Rule 56.1(b) response as stated in detail below.
. The Court further grants TiEnergy's motion to
strike Wisconsin Central's January 5, 2017
“certification, ” also discussed directly below.
. Last, the Court denies Plaintiff Wisconsin
Central's motion for oral argument in regard to its
summary judgment motion. . Wisconsin Central must file a
proposed order of judgment stating the demurrage charges and
calculating the appropriate pre-judgment interest with the
Court by no later than May 8, 2017.
Northern District of Illinois Local Rule 56.1
purpose of Rule 56.1 is to have the litigants present to the
district court a clear, concise list of material facts that
are central to the summary judgment determination. It is the
litigants' duty to clearly identify material facts in
dispute and provide the admissible evidence that tends to
prove or disprove the proffered fact.” Curtis v.
Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir.
2015). Local Rule 56.1(a) “requires the party moving
for summary judgment to file and serve a ‘statement of
material facts as to which the moving party contends there is
no genuine issue and that entitle the moving party to a
judgment as a matter of law.'” Id. at 218
(citation omitted). “The non-moving party must file a
response to the moving party's statement, and, in the
case of any disagreement, cite ‘specific references to
the affidavits, parts of the record, and other supporting
materials relied upon.'” Petty v. Chicago,
754 F.3d 415, 420 (7th Cir. 2014) (citation omitted); see
also L.R. 56.1(b)(3)(A). Local Rule 56.1(b)(3)(C)
requires the non-moving party to file a separate statement of
additional facts. See Thornton v. M7 Aerospace LP,
796 F.3d 757, 769 (7th Cir. 2015).
Rule 56.1 statements and responses should identify the
relevant admissible evidence supporting the material facts -
not make factual or legal arguments. See Zimmerman v.
Doran, 807 F.3d 178, 180 (7th Cir. 2015). “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.” Curtis, 807 F.3d at
218 (quoting Cracco v. Vitran Exp., Inc., 559 F.3d
625, 632 (7th Cir. 2009)). The Seventh Circuit “has
consistently upheld district judges' discretion to
require strict compliance with Local Rule 56.1.”
Flint v. City of Belvidere, 791 F.3d 764, 767 (7th
The Parties' Local Rule 56.1 Filings
these well-settled local procedural rules that articulate how
litigants must present material facts at summary judgment in
the Northern District of Illinois, the parties have failed to
follow the letter or the spirit of the rules to assist the
Court in determining the relevant, admissible evidence. To
explain, although Defendant TiEnergy's motion for summary
judgment is against Plaintiff Wisconsin Central, Third-Party
Defendant Allied has filed a response to TiEnergy's Rule
56.1(a) Statement of Facts. Because TiEnergy's summary
judgment motion is directed at Wisconsin Central's claims
- as set forth in Wisconsin Central's Complaint - the
Court, in its discretion, will not consider Third-Party
Defendant Allied's Rule 56.1(b)(3)(A) Response to
TiEnergy's Rule 56.1(a) statement because Allied is not
an “opposing party” as contemplated by Rule
56.1(b). On the other hand, Allied filed a proper Rule 56.1
response to TiEnergy's Rule 56.1(b)(3)(C) Statement of
Additional Facts in relation to Allied's summary judgment
motion, which has considerable overlap with TiEnergy's
Rule 56.1 Statement. The Court will consider Allied's
response in this context.
instead of filing a Rule 56.1(b)(3)(A) Response to
TiEnergy's Rule 56.1(a) Statement of Facts, Plaintiff
Wisconsin Central included a three paragraph
“rebuttal” as part of its response brief in
opposition to Defendant TiEnergy's summary judgment
motion. Because these rebuttal paragraphs are in
contradiction of Local Rule 56.1, the Court will not consider
them. Similarly, Wisconsin Central attempted to respond to
TiEnergy's Rule 56.1(a) Statement of Fact ¶ 19 by
attaching a “certification” to its summary
judgment response brief. The Court will not consider this
“certification” because Wisconsin Central failed
to follow Local Rule 56.1(b). Nonetheless, the Court notes
that Wisconsin Central did file a proper Rule 56.1 response
to TiEnergy's Rule 56.1(b)(3)(C) Statement of Additional
Facts that the Court will consider. Also, in its legal
memoranda, Wisconsin Central cites directly to evidence in
the record instead of citing Rule 56.1 statements, which
defeats the purpose of Rule 56.1. See LaSalvia v. City of
Evanston, 806 F.Supp.2d 1043, 1046 (N.D. Ill. 2011)
(“The Court also disregards any citations to the record
in the parties' legal memoranda that do not reference
their Local Rule 56.1 Statements of Fact.”); see
also Malec v. Sanford, 191 F.R.D. 581, 586 (N.D. Ill.
2000). The Court will disregard these citations.
in support of its Rule 56.1 statements and responses,
TiEnergy relies upon TiEnergy President Steven Berglund's
affidavit in which he contradicts his June 21, 2016
deposition testimony, thereby violating the “sham
affidavit” rule. See Cook v. O'Neill, 803
F.3d 296, 298 (7th Cir. 2015) (“A ‘sham
affidavit' is an affidavit that is inadmissible because
it contradicts the affiant's previous testimony ...
unless the earlier testimony was ambiguous, confusing, or the
result of a memory lapse.”); see also McCann v.
Iroquois Mem'l Hosp., 622 F.3d 745, 751 (7th Cir.
2010) (sham affidavit rule “applies when the change is
incredible and unexplained”). The Court will not
consider Berglund's affidavit under this rule and, also,
because Berglund's affidavit is not notarized or signed
under penalty of perjury. See Sheikh v. Grant Reg'l
Health Ctr., 769 F.3d 549, 551 (7th Cir. 2014);
Fed.R.Civ.P. 56(c)(4). The Court further notes that
affidavits must be based on personal knowledge and that
parties cannot rely upon inadmissible hearsay at summary
judgment. See Jackson v. City of Peoria, Ill., 825
F.3d 328, 330 (7th Cir. 2016); Cairel v. Alderden,
821 F.3d 823, 830 (2016).
short, by failing to follow Local Rule 56.1, the parties have
pointed the Court to a “proverbial haystack” of
evidence asking the Court to find the needle. See Boss v.
Castro,816 F.3d 910, 914 (7th Cir. 2016). It is not the
role of the district court in our adversary system to scour
the record looking for material facts at summary judgment.
See Zoretic v. Darge,832 F.3d 639, ...