United States District Court, N.D. Illinois, Eastern Division
BOARD OF TRUSTEES OF THE CHICAGO PAINTERS AND DECORATORS PENSION FUND, Plaintiff,
ROGER GOSSETT and CINDY K. GOSSETT, Defendants.
MEMORANDUM OPINION AND ORDER
J. THARP, JR. UNITED STATES DISTRICT JUDGE.
interpleader action, the Chicago Painters and Decorators
Pension Fund seeks a declaratory judgment as to whom to pay
pension benefits earned by defendant/cross-plaintiff Roger
Gossett. A divorce settlement gave a 50 percent interest in
Mr. Gossett’s pension benefits to his former wife,
defendant Cindy K. Gossett. In a cross-claim, Mr. Gossett
asserts that he bought out Ms. Gossett’s share of the
pension benefits in 2011 for $10, 000. Ms. Gossett maintains
that her former husband defrauded her in that deal by
misrepresenting the value of the pension benefits. Ms.
Gossett, who is proceeding pro se, has produced a
litany of complaints about her treatment by Mr. Gossett
during and after their 23-year marriage. She has not,
however, properly contested the facts on which Mr.
Gossett’s claim relies and that failure requires
judgment on the cross-claim in Mr. Gossett’s favor and
entry of a judgment declaring that Ms. Gossett has no claim
to any share of the pension benefits allocable to Mr. Gossett
from the Fund.
Ms. Gossett’s Failure to Comply with Local
facts material to this dispute are drawn exclusively from Mr.
Gossett’s motion for summary judgment on his
cross-claim because, notwithstanding the Court’s
efforts to accommodate her lack of familiarity with the
required procedures,  Ms. Gossett has failed to properly contest
those facts. While legal filings by pro se litigants
are to be liberally construed, Mallett v. Wis. Div. of
Vocational Rehab., 130 F.3d 1245, 1248 (7th Cir. 1997),
“the Supreme Court has made clear that even pro
se litigants must follow rules of civil procedure,
” Cady v. Sheahan, 467 F.3d 1057, 1061 (7th
Cir. 2006). The Local Rules for the Northern District of
Illinois require a party opposing a motion for summary
judgment to (1) file a response to each numbered paragraph in
the movant’s statement of material facts including, in
the case of disagreement, a specific reference to the
affidavits, parts of the record, or other supporting
materials relied upon and (2) file its own statement,
consisting of short, numbered paragraphs, of any additional
facts that would require denial of summary judgment. LR
56.1(b)(3). All material facts set forth in the moving
party’s statement are deemed admitted unless
controverted by the party opposing the motion for summary
judgment. Additional facts must be supported by admissible
evidence and where, as here, a party relies on her own
testimony, she is required to submit a declaration signed
under penalty of perjury.
Gossett concedes that she received notice of these rules from
Mr. Gossett’s attorney, ECF No. 62,  but she has not
complied with Local Rule 56.1 in form or in substance. Ms.
Gossett has not specifically admitted or denied each of the
facts alleged in Mr. Gossett’s statement of material
facts with reference to the numbered paragraph; facts not
specifically controverted are deemed admitted. See
Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868,
871 (7th Cir. 2000) (“An answer that does not deny the
allegations in the numbered paragraph with citations to
supporting evidence in the record constitutes an
admission.”). Importantly for this case, although Ms.
Gossett has generally asserted that she did not know the
value of the pension benefits and that Mr. Gossett led her to
believe that they might not be worth anything, she has not
specifically controverted in any way Mr. Gossett’s
assertion that she had been receiving statements of the value
of the Fund pension benefits since 2006, some five years
before she entered into the agreements to sell her share of
those benefits to Mr. Gossett for $10, 000. These facts are
therefore deemed admitted. Where she
has denied certain facts, Ms.
Gossett has not provided support based on record evidence,
and “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); see also DiPerna v. Chi. Sch.
of Prof’l Psychology, 222 F.Supp.3d 716, 718 (N.D.
Ill. Nov. 28, 2016) (“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 fact, and the fact is admitted.”).
facts alleged by Ms. Gossett are not supported by affidavit
or other relevant evidence, and therefore are disregarded.
See Fife v. mPhase Techs., Inc, No. 12-CV-9647, 2014
WL 7146212, at *2 (N.D. Ill.Dec. 15, 2014) (“The Court
may disregard statements and responses that do not properly
cite to the record.”); see also Hadley v. County of
DuPage, 715 F.2d 1238, 1243 (7th Cir. 1983) (“Rule
56 demands something more specific than the bald assertion of
the general truth of a particular matter, rather it requires
affidavits that cite specific concrete facts establishing the
existence of the truth of the matter asserted.”).
Specifically, in her assertion that Mr. Gossett
misrepresented the value of the Fund at the time she agreed
to waive her share, Ms. Gossett relies only on her own
unsworn statement, which is insufficient; “unsworn
allegations are not evidence, ” Reed v. Allied
Waste Transp., Inc., 621 Fed.Appx. 345, 347 (7th Cir.
2015) (citing Thomas v. Christ Hosp. & Med.
Ctr., 328 F.3d 890, 894 (7th Cir. 2003)), and do not
meet the requirements of Rule 56. DeBruyne v. Equitable
Life Assur. Soc’y, 920 F.2d 457, 471 (7th Cir.
1990). See also, e.g., Cady v. Village of
McCook, 57 Fed.Appx. 261, 263 (7th Cir. 2003) (because
plaintiff “did not file any timely, sworn materials in
response to the defendants’ summary judgment motion,
the judge was required to consider only facts included in the
defendants’ summary judgment materials”);
McConnell v. Ritz-Carlton Watertower, 39 Fed.Appx.
417, 420 (7th Cir. 2002) (district court acted within its
discretion in ignoring submissions that were not subscribed
under penalty of perjury).
Ms. Gossett’s failure to comply with Local Rule 56.1,
all facts set forth by Mr. Gossett are deemed admitted. That
said, the Court is not strictly limited to Mr.
Gossett’s statement of facts in assessing his motion
for summary judgment, as it may also consider the
“other materials in the record.” Fed.R.Civ.P.
56(c)(3). With that understanding, the Court turns to the
details of the case.
Gossett and Cindy K. Gossett were divorced on or about
November 30, 2006, in Harris County, Texas. Roger
Gossett’s Statement of Facts (“RGSOF”)
¶ 9. As part of the divorce settlement, the two executed
a Qualified Domestic Relations Order (“QDRO”) on
July 3, 2007, Mot. Summ. J. Ex. B, ECF No. 58, which gave
each of them a 50% interest in the vested accrued Fund
benefits allocable to Mr. Gossett by virtue of his
participation in the Chicago Painters and Decorators Pension
Plan. RGSOF ¶ 11. Ms. Gossett’s divorce attorney
sent a certified copy of the QDRO to the Fund in a letter
dated March 12, 2008. First Am. Compl. ¶ 8, ECF No. 23.
The Fund’s attorney sent a letter on March 28, 2008 to
the Gossetts’ respective attorneys stating that the
Plan accepted the QDRO, though certain provisions could not
be honored. Id. ¶ 9.
2011, Ms. Gossett approached Mr. Gossett with a request to
borrow money, which he declined. RGSOF ¶¶ 12-13.
She offered to sell her portion of the Fund benefits to Mr.
Gossett for $20, 000, but Mr. Gossett declined. Id.
¶¶ 14-15. After further negotiations, the parties
agreed that Roger Gossett would pay Cindy Gossett $10, 000 in
exchange for a waiver of Ms. Gossett’s right to half of
the pension benefits. Id. ¶ 16. Accordingly,
the two executed a notarized Agreement to Revise Property
Division Set Forth in Final Decree of Divorce, id.
¶¶ 18-19; see also Mot. Summ. J. Ex. F,
ECF No. 58. In the notarized agreement, Ms. Gossett agreed to
“waive and forever after disavow any right, title, or
interest in and to” the 50% of benefits conveyed to her
in the QDRO and acknowledged that “one hundred (100%)
percent of said benefits shall be the sole and separate
property of Roger Gossett.” RGSOF ¶ 20; Mot. Summ.
J. Ex. F at 2, ECF No. 58. Ms. Gossett “further
agree[d] that she [would] sign any and all documents when
submitted to her which will effectively terminate the
Qualified Domestic Relations Order presently on file with the
International Brotherhood of Painters and Allied Trades . . .
.” Mot. Summ. J. Ex. F at 2, ECF No. 58. In
addition, Ms. Gossett sent a letter dated August 17, 2011 to
Mr. Gossett’s then-attorney agreeing that “in
return for my percentage of the Chicago Painter’s Union
retirement fund in our divorce decree, I will receive ten
thousand dollars ($10, 000) less what is owed [Mr.
Gossett].” Id. Ex. D. At the time she executed
these agreements in 2011, Ms. Gossett had been receiving
financial statements from the Fund for approximately five
years. RGSOF ¶¶ 24-25.
to the Agreement, Mr. Gossett paid Ms. Gossett $10, 000.
RGSOF ¶ 17. The payment took the form of $3, 398.85 paid
to HSBC Auto Finance by Mr. Gossett on Ms. Gossett’s
behalf, $3, 701.15 to be paid directly to Ms. Gossett
“upon the completion of procedures which will be
necessary to terminate [the QDRO] including, but not limited
to any legal proceedings which may be required to effect said
termination, ” and an offset of $2, 900.00 in
satisfaction of a loan from Mr. Gossett to Ms. Gossett. Mot.
Summ. J. Ex. F at 2, ECF No. 58. In exchange, Ms. Gossett
agreed to “sign any and all documents when submitted to
her which will effectively terminate the Qualified Domestic
Relations Order presently on file with the International
Brotherhood of Painters and Allied Trades, including but not
limited to any documents which may be required as a part of
any legal proceedings to terminate the said Qualified
Domestic Relations Order.” Id.
January 30, 2012, the Fund’s attorney sent a letter to
Mr. Gossett’s then-attorney, stating that while Ms.
Gossett could waive her interest in the Fund, the Fund could
still be required to pay her share if (1) the QDRO was
considered a plan instrument and (2) the QDRO could not be
rescinded. First Am. Compl. ¶ 11, ECF No. 23; see
also id. Ex. 4. The pension plan was later amended to
permit waiver of rights under a QDRO. Id. ¶ 12.
In response to a request from Mr. Gossett’s attorney,
the Fund sent her a waiver form on March 7, 2017, which Ms.
Gossett could sign to terminate the QDRO and release her
interest in the Fund. Id. ¶ 13. Ms. Gossett
refused to sign the waiver and, in a letter to Mr.
Gossett’s attorney, stated “I will not sign the
document you sent for Roger Gossett to receive his benefits
from The Chicago Painters and Decorators Pension Fund; nor am
I waiving my right to receive my share from the pension
fund.” Mot. Summ. J. Ex. G, ECF No. 58. The Fund
received a copy of Ms. Gossett’s letter from Mr.
Gossett’s attorney on April 6, 2017. First Am. Compl.
¶ 14, ECF No. 23.
on this dispute, the Fund initiated this interpleader action,
seeking a declaration as to whom the disputed share of the
Fund benefits should be paid. Mr. Gossett cross-claimed against
Ms. Gossett for breach of contract in failing ...