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Board of Trustees of the Chicago Painters v. Gossett

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

September 24, 2019

BOARD OF TRUSTEES OF THE CHICAGO PAINTERS AND DECORATORS PENSION FUND, Plaintiff,
v.
ROGER GOSSETT and CINDY K. GOSSETT, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN J. THARP, JR. UNITED STATES DISTRICT JUDGE.

         In this 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.

         Background

         I. Ms. Gossett’s Failure to Comply with Local Rules

         The 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, [1] 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.

         Ms. Gossett concedes that she received notice of these rules from Mr. Gossett’s attorney, ECF No. 62, [2] 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.”).

         Additional 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).

         Given 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.

         II. Uncontested Facts

         Roger 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.[3] Id. ¶ 9.

         In 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.[4] RGSOF ¶¶ 24-25.

         Pursuant 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.

         On 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.

         Based 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.[5] Mr. Gossett cross-claimed against Ms. Gossett for breach of contract in failing ...


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