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Wisconsin Central, Ltd. v. Tienergy, LLC

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

April 21, 2017

WISCONSIN CENTRAL, LTD., Plaintiff,
v.
TIENERGY, LLC, Defendant. TIENERGY, LLC, Third-Party Plaintiff,
v.
ALLIED TRACK SERVICES, INC., f/k/a SWIFT RAILROAD CONTRACTORS CORPORATION, Third-Party Defendant.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, District Court Judge.

         On 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.[1] 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.

         Before 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.

         For the 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 [56]. In addition, the Court grants TiEnergy's motion to strike Allied's Rule 56.1(b) response as stated in detail below. [74]. The Court further grants TiEnergy's motion to strike Wisconsin Central's January 5, 2017 “certification, ” also discussed directly below. [73]. Last, the Court denies Plaintiff Wisconsin Central's motion for oral argument in regard to its summary judgment motion. [82]. 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.

         BACKGROUND

         I. Northern District of Illinois Local Rule 56.1

         A. Standards

         “The 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).

         Local 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 Cir. 2015).

         B. The Parties' Local Rule 56.1 Filings

         Despite 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.

         Further, 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.

         Next, 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).

         In 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, ...


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