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Barrios v. Fashion Gallery, Inc.

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

June 13, 2017

GLORIA BARRIOS, Plaintiff,
v.
FASHION GALLERY, INC. Defendant.

          MEMORANDUM OPINION AND ORDER

          Cole Magistrate Judge

         On May 6, 2014, the plaintiff was shopping for a skirt in the defendant's store and, when she reached up to take one down from a hook on the wall, an empty shelf lower on the wall fell and hit her foot. She sued for damages in the Circuit Court of Cook County, under theories of premises liability and negligence.[1] The defendant removed the case here based on diversity jurisdiction and has moved for summary judgment on plaintiff's Complaint.

         I.

         SUMMARY JUDGMENT

         A.

         Fed.R.Civ.P. 56

         Summary judgment is appropriate “if the movant 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). The court must construe the evidence and all inferences that reasonably can be drawn from it in the light most favorable to the nonmoving party. Allin v. City of Springfield, 845 F.3d 858, 861 (7th Cir. 2017); Chaib v. Geo Grp., Inc., 819 F.3d 337, 340 (7th Cir. 2016). A factual dispute is “genuine” only if a reasonable jury could find for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Alston v. City of Madison, 853 F.3d 901 (7th Cir. 2017) . If the opponent - here, the plaintiff - “‘fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, summary judgment must be granted.” Blow v. Bijora, Inc., 855 F.3d 793 (7th Cir. 2017). See generally, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         B. Local Rule 56.1

         As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. “For litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for summary judgment.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir.2012). Local Rule 56.1 requires a party seeking summary judgment to include with its motion “a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law.” Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). Each paragraph must refer to the “affidavits, parts of the record, and other supporting materials” that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir.2005).

         The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both “a response to each numbered paragraph in the moving party's statement, ” Local Rule 56.1(b)(3)(B), and a separate statement “consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, ” Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.2009); Bay Area Business Council, Inc., 423 F.3d at 633.

         The district court is entitled to enforce strict compliance with its local rules regarding summary judgment motions. See Gray v. Hardy, 826 F.3d 1000, 1004-05 (7th Cir. 2016); Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 711 (7th Cir. 2015);Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir.2011); Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir.2010). And that rule has been applied even in cases involving pro se litigants. Welcher-Butler v. Brennan, 619 F.App'x 550 (7th Cir. 2015). Thus, responses and facts that are not set out properly and appropriately supported in an opponent's Rule 56.1 response need not be considered. See Shaffer v. American Medical Association, 662 F.3d 439, 442 (7th Cir.2011); Bay Area Business Council, 423 F.3d at 633. Here, the defendant has filed a proper statement of facts. [Dkt. #25]. The plaintiff has not; indeed, she has neither filed a response to the defendant's statement of facts, nor her own statement of additional facts. [Dkt. #36]. As a result, defendant's properly supported facts are deemed admitted, Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir.2013), and the assertions plaintiff makes in her brief need not be considered. See Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015)(court need only consider “the facts (and inferences drawn from them) presented in accordance with Local Rule 56.1.”); Johal v. Little Lady Foods, Inc., 434 F.3d 943, 947 (7th Cir. 2006)(court entitled to ignore facts set out, not in proper Local Rule 56.1 submission, but in memorandum of law)

         II. FACTS

         The facts in this case are not complicated. As already mentioned, plaintiff went skirt-shopping at defendant's store in early May of 2014. [Dkt #25, ¶¶ 4-5]. In her deposition, plaintiff testified that she frequently shopped at that particular store. (Dep., at 17, 18). Upon entering the store, she walked over to a wall display that had skirts hanging from hooks that extended out of the wall, just above an empty shelf. [Dkt. # 25, ¶5; Dep., at 20, 22]. When she reached up with her right hand to touch a skirt, the empty shelf fell on top of her left foot. [Dkt. # 25, ¶ 5, Dep., at 18, 20, 22]. The plaintiff has no idea why the shelf fell. [Dkt. # 25, ¶6; Dep., at 22, 42]. She didn't notice anything wrong with the shelf. [Dkt. # 25, ¶6; Dep., at 22, 42]. In the five years prior to the incident, the store never received any reports about any problems with shelving. [Dkt # 25, ¶ 7; Ex. 6].

         III. ...


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