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Professional Service Industries, Inc. v. Dynamic Development Company, LLC

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

December 6, 2017



          John J Tharp, Jr., United States District Judge

         Plaintiff Professional Service Industries, Inc. (“PSI”) filed this breach of contract action seeking payment for environmental and geotechnical services that it provided to Defendant Dynamic Development Company, LLC (“Dynamic”) at several locations throughout Southern California. PSI alleges that Dynamic breached the payment provisions of its contracts with PSI by refusing to pay more than $70, 000 in invoices for work PSI performed. In addition, PSI alleges that it is entitled to interest, attorney's fees, and costs related to Dynamic's failure to pay. PSI now moves for summary judgment in its favor. Because no question of material fact exists with regard to PSI's breach of contract claim and PSI has demonstrated that it is entitled to judgment as a matter of law, the Court grants PSI's motion and enters judgment in its favor.

         I. BACKGROUND

         A. Northern District of Illinois Rule 56.1 and Dynamic's Evidentiary Objections

         As an initial matter, the Court must address Dynamic's objections to consideration of some of the evidentiary materials on which PSI relies to support its summary judgment motion. Northern District of Illinois Rule 56.1 requires that the party moving for summary judgment file “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.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015) (citing N.D.Ill. R. 56.1(a)). The statement of material facts must include “specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth” in each paragraph. N.D.Ill. R. 56.1(a). The party opposing the motion for summary judgment must file a response addressing each paragraph in the movant's statement of material facts and asserting any disagreements with “specific references to the affidavits, parts of the record, and other supporting materials relied upon.” Curtis, 807 F.3d at 218 (citing N.D.Ill. R. 56.1(b)). The party opposing summary judgment must also file a statement of any additional facts that require the denial of summary judgment, with references to the supporting materials relied upon. N.D.Ill. R. 56.1(b).

         The district court has discretion to strictly enforce compliance with Rule 56.1. Curtis, 807 F.3d at 219 (citing Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)). The opposing party's failure to admit or deny facts as presented in the moving party's statement of facts, or to cite to any admissible evidence to support facts presented in the opposing party's response renders the facts presented by the moving party as undisputed. Curtis, 807 F.3d at 218-19 (citing Ammons v. Aramark Unif. Servs., 368 F.3d 809, 818 (7th Cir. 2004)).

         PSI submitted a Rule 56.1 statement of facts supported by three witness declarations with multiple exhibits and a deposition transcript of Dynamic's 30(b)(6) witness. Pl.'s Statement of Facts, ECF No. 73 (“PSOF”). Dynamic submitted objections to two of the PSI declarations. Def.'s Obj. to Decl. of Eric Fraske, ECF No. 89; Def.'s Obj. to Decl. of Maria E.G. Chase, ECF No. 88.

         1. Objections to Fraske Declaration

         Dynamic objects to the declaration of PSI employee Eric Fraske (the “Fraske Declaration”) because it lacks foundation. Dynamic claims that Fraske does not provide a basis for his knowledge of various facts in his declaration. However, in his declaration, Fraske explicitly states that it is based on personal knowledge, that he is a principal consultant and branch manager for PSI, that he worked with Dynamic on various projects for more than four years after Dynamic first retained PSI, and that he is knowledgeable regarding the services performed by PSI for Dynamic at the relevant locations. PSOF, Ex. A ¶¶ 1-2, 14. The Court finds that these statements establish that Fraske had direct involvement in PSI's work with Dynamic and are sufficient to establish his personal knowledge of the facts asserted in his declaration. See Cobra Capital LLC v. LaSalle Bank Corp., 455 F.Supp.2d 815, 817-18 (N.D. Ill. 2006) (denying motion to strike declaration because declaration was based on personal knowledge resulting from declarant's direct involvement in the events in question). Dynamic, of course, could have offered evidence to contradict Fraske's averment of personal knowledge, thereby creating a fact dispute, but it did not do so.

         Dynamic also objects to the exhibits attached to the Fraske Declaration, which Fraske attests are “true and accurate” copies of PSI's contracts with Dynamic, because Fraske “did not declare that he is the custodian of records for PSI” and did not “declare that his signature appears anywhere” on the contracts. Def.'s Obj. to Decl. of Eric Fraske ¶¶ 4-9, ECF No. 89. In its response to PSI's statement of facts, Dynamic also argues that the contracts “have not been properly authenticated and are therefore inadmissible.” Def.'s Resp. to PSOF ¶ 5, ECF No. 87. Fraske, however, is not required to declare that he is the custodian of records or the signatory of the contracts attached to his declaration to authenticate them. And to the extent that Dynamic's argument betrays a belief that PSI is required to show that the contracts satisfy the hearsay business records exception, it is off-base. A contract is a verbal act, is not hearsay, and is admissible evidence on summary judgment. Super 8 Motels, Inc. v. Rahmatullah, No. 1:07-cv- 01358-DFH-DML, 2009 WL 2905463, at *2 (S.D. Ind. Sept. 9, 2009). Therefore, Fraske need not establish the elements required to admit hearsay under the business records exception. PSI need only establish that the contracts are authentic, and “[w]hen a witness with personal knowledge swears that the document is what she says it is, the authenticity requirement is met.” Zielinski v. Pabst Brewing Co., Inc., 360 F.Supp.2d 908, 912 (E.D. Wisc. 2005) (holding that exhibits were properly authenticated and could be considered evidence at summary judgment where witness with personal knowledge swore as to what the documents were). Fraske's declaration adequately establishes his personal knowledge of the business relationship between PSI and Dynamic and based on that personal knowledge, he swears that the exhibits attached to his declaration are true and accurate copies of the relevant contracts between PSI and Dynamic.

         Dynamic also objects to Fraske's statements that PSI's “General Conditions” were always included in PSI's contracts with Dynamic because other evidence submitted by PSI contradicts this fact. Dynamic points to two exhibits submitted by PSI as the contracts for work at two locations, which do not include the “General Conditions.” But Dynamic's assertion that the statement is contradicted by other documents is not an evidentiary objection that affects the admissibility of the Fraske's declaration or the attached exhibits. Dynamic further objects that the assertions regarding PSI's general conditions are vague because they do not specify whether the conditions changed over time. The Court is not persuaded by this argument and finds the statements are sufficiently specific.

         Having considered all of Dynamic's objections to the Fraske Declaration, the Court overrules the objections and finds that the Fraske Declaration and the exhibits attached to it may be considered in support of PSI's statement of facts and motion for summary judgment.

         2. Objections to Chase Declaration

         Dynamic also asserts foundation objections to the declaration of PSI employee Maria Chase (the “Chase Declaration”). Dynamic argues that the Chase Declaration provides no explanation regarding the source or derivation of the figures included in an exhibit attached to the declaration that summarizes the amounts owed by Dynamic for multiple unpaid PSI invoices. However, the Chase Declaration and the attached exhibit make clear that it is based upon PSI's invoices to Dynamic and a calculation of 18% interest per year on the unpaid invoices. The declaration establishes that Chase has personal knowledge of the invoices and the interest calculations because she is the vice president of finance for PSI and, in that role, she oversees and is responsible for all of the company's billing and collection of invoices to PSI clients. PSOF, Ex. D ¶¶ 2-3. Dynamic also argues that Chase lacks foundation to state in her declaration that the amounts PSI charged are reasonable and customary in the industry. However, Chase's statement that she has served as PSI's vice president of finance since 2002 is sufficient to establish her personal knowledge of industry rates. The Court overrules Dynamic's objections to the Chase Declaration and finds that it may be considered in support of PSI's statement of facts and motion for summary judgment.

         B. Factual Background

         Dynamic asserts that nearly all of the facts contained in PSI's statement of facts are in dispute, but provides no controverting facts or evidence in support of its position. Def.'s Resp. to PSOF, ECF No. 87. Instead, Dynamic cites to its objections to PSI's declarations, which, as stated above, the Court overrules, and makes the general claim that PSI lacks admissible evidence to support certain facts. Id. ¶¶ 12, 13, 17-18, 20-21, 23-24, 26-27, 29-30, 32-33, 35-36. But PSI's statement of facts cites to the deposition testimony of Dynamic's 30(b)(6) witness to support each of these facts and Dynamic does not raise a specific evidentiary objection to the cited testimony. Id. Under Federal Rule of Civil Procedure 56(c)(1), PSI may support its statement of facts with deposition testimony. Fed.R.Civ.P. 56(c)(1). Without a specific argument by Dynamic as to why the deposition testimony is inadmissible, the Court finds that PSI's facts are adequately supported. See Moore v. Shepard, No. 13-cv-150-JPG, 2015 WL 5062514, at *3 (S.D. Ill. Aug. 26, 2015) (rejecting vague and undeveloped objections regarding deposition testimony); see also Ace Hardware Corp. v. Marn, Inc., No. 06-CV-5335, 2008 WL 4286975, at *1 (N.D. Ill. Sept. 16, 2008) (“The requirements for a response under Local Rule 56.1 are ‘not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted.'”) (quoting Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000)).

         Because Dynamic fails to controvert or establish valid evidentiary objections to PSI's statement of facts, the Court accepts as true the following facts submitted by PSI, which are supported by the record. N.D.Ill. R. 56.1(b)(3)(C); see, e.g., Apex ...

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