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Ello v. Brinton

United States District Court, N.D. Indiana, Hammond Division

March 28, 2018

ANTHONY E. ELLO and EVELYN ELLO, Plaintiffs,
v.
GARY R. BRINTON and SEVEN PEAKS MARKETING CHICAGO, LLC, Defendants.

          OPINION AND ORDER

          RUDY LOZANO, JUDGE

         This matter is before the Court on Defendant Gary Brinton's Motion for Summary Judgment and Subject Matter Jurisdiction Challenge, filed on August 14, 2017 (DE #126); Defendant Seven Peaks Marketing Chicago, LLC's Motion for Summary Judgment and Subject Matter Jurisdiction Challenge, filed on August 14, 2017 (DE #128); Defendant Gary Brinton's Motion for Summary Judgment and Subject Matter Jurisdiction Challenge, filed on August 17, 2017 (DE #131); Plaintiff's [sic] Motion for Leave to File Response to Defendants' Motions for Summary Judgment Instanter, filed on September 26, 2017 (DE #133). For the reasons set forth below, Defendant Gary Brinton's motions for summary judgment (DE #126 and DE #131) are GRANTED; Defendant Seven Peaks Marketing Chicago, LLC's motion for summary judgment (DE #128) is GRANTED IN PART AND DENIED IN PART; Plaintiffs' motion for leave to file a response to Defendants' motions for summary judgment instanter (DE #133) is DENIED. Counts II and III are DISMISSED. Count I remains pending against Seven Peaks Marketing Chicago, LLC.

         BACKGROUND

         In 2013, Anthony and Evelyn Ello (together, “Plaintiffs”) entered into a Lease Agreement with defendant Seven Peaks Marketing Chicago, LLC, (“SPMC”), pursuant to which Plaintiffs leased their bowling alley to SPMC for thirteen years. SPMC vacated the property after eleven months. Plaintiffs filed this lawsuit asserting that (1) SPMC breached the Lease Agreement, (2) defendant Gary Brinton (“Brinton”) is liable for SPMC's alleged misconduct under an alter ego theory of liability, and (3) Brinton and SPMC (together, “Defendants”) fraudulently induced Plaintiffs to enter into the Lease Agreement. During discovery, Defendants served Plaintiffs with requests for admission. Plaintiffs failed to answer the requests for admission in a timely manner.

         After the close of discovery, Brinton filed two motions for summary judgment and subject matter jurisdiction challenge (DE #126 and #131), which the Court will treat as one. SPMC also filed a motion for summary judgment and subject matter jurisdiction challenge (DE #128). The motions for summary judgment argue that (1) Plaintiffs' failure to answer the request for admission and failure to make damages disclosures in their initial disclosures preclude them from offering evidence of damages, (2) without a prospect of a redressable injury, this Court lacks subject matter jurisdiction, and (3) they are entitled to summary judgment on all claims.

         Plaintiffs failed to file a response to any of the motions for summary judgment in a timely manner. On September 26, 2017, Plaintiffs filed a motion for leave to file a response to the motions for summary judgment instanter. (DE #133.) On the same day, they filed a combined response to the motions for summary judgment that included a motion to withdraw admissions pursuant to Federal Rule of Civil Procedure 36(b). (DE #135.) Plaintiffs' motion for leave to file a response instanter and motion to withdraw admissions were fully briefed. Defendants reserved the right to file reply briefs if the Court granted Plaintiffs' motions.

         DISCUSSION

         Motion for Leave to File Response to Summary Judgment Motions Instanter

         Plaintiffs move for leave to file a late response to the defendants' motions for summary judgment instanter. Federal Rules of Civil Procedure Rule 6(b)(1) provides that a court “may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B); see Keeton v. Morningstar, Inc., 667 F.3d 877, 883 (7th Cir. 2012) (Rule 6(b) “gives courts discretion (with certain exceptions not applicable here) to grant extensions of time when deadlines are missed because of excusable neglect.”). The determination whether a party's neglect is excusable is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); see Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006) (“Pioneer applies whenever ‘excusable neglect' appears in the federal procedural rules.”). Relevant circumstances include “the danger of prejudice to the [non-movant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer, 507 U.S. at 395. “Most important is the reason for the delay. To establish excusable neglect, the moving party must demonstrate genuine ambiguity or confusion about the scope or application of the rules or some other good reason for missing the deadline, in addition to whatever lack of prejudice and absence of delay he can show.” Satkar Hospitality, Inc. v. Fox Television Holdings, 767 F.3d 701, 707 (7th Cir. 2014). “[A] lawyer's errors are imputed to the client for the purpose of [excusable neglect].” Moje v. Fed. Hockey League, LLC, 792 F.3d 756, 758 (7th Cir. 2015).

         Here, Plaintiffs admit that they missed the deadline for filing a response brief in opposition to the motions for summary judgment by fifteen days. The sole reason offered by Plaintiffs is that their counsel had commitments in other cases. (DE #133 at 1-2; DE #144 at 4 (noting that counsel's supporting affidavits list of two cases on which they were working “as exemplars, not the exclusive tasks that consumed counsel's time”). The Court prefers to resolve cases on their merits, but in this case Plaintiffs' counsel proffers nothing upon which to find excusable neglect. “[I]t is widely accepted that neglect due to a busy schedule is not excusable.” Keeton, 667 F.3d at 883 (citation omitted); see Raymond, 442 F.3d 600 (affirming district court's refusal to consider a late-filed response to a summary judgment motion despite the plaintiff's counsel's claimed busyness); Dean v. Chicago Transit Auth., 118 F.Appx. 993, 996 (7th Cir. 2005) (“An attorney's busy schedule . . . does not rise to the level of excusable neglect.”); Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004) (“[A]ttorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney's somnolent behavior may have on a litigant.”).

         Plaintiffs note that they have not requested many extensions in this matter, but fail to offer any reason why they could not have requested an extension before the deadline had expired. Plaintiffs' neglect is not excusable because they “could and should have moved for an extension” if they wished to preserve their right to file responses to Defendants' summary judgment motions. Adams v. City of Indianapolis, 742 F.3d 720, 734 (7th Cir. 2014); see Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015) (“Neglect is generally not excusable when a party should have acted before the deadline.”). Moreover, Plaintiffs' delay in filing their summary judgment response brief weighs against finding excusable neglect. Postle v. Bath & Body Works, LLC, No. 13 C 50374, 2015 WL 521365, at *4 (N.D. Ill. Feb. 9, 2015) (“The length of the delay weighs against granting the [m]otion” for leave to file instanter documents in opposition to summary judgment motion.). Plaintiffs inexplicably waited over two weeks to seek permission for the late filing, thus undermining any claim of good-faith mistake. See Peters v. Wal-Mart Stores E., LP, 512 Fed.Appx. 622, 628 (7th Cir. 2013) (holding that district court did not abuse discretion in striking summary judgment response brief where counsel waited nearly three weeks to seek permission for the late filing); Postle, 2015 WL 521365, at *4 (filing two weeks late was inexcusable); Dean, 118 Fed.Appx. 993 (affirming denial of plaintiff's motion to file a response to a summary judgment motion instanter filed nearly two weeks after the deadline). “District courts possess great authority to manage their caseload and have the right to expect that deadlines will be honored.” Dean, 118 F.Appx. at 996 (citation and internal quotation marks omitted); see Reales v. Consol. Rail Corp., 84 F.3d 993, 996 (7th Cir. 1996) (district courts “are entitled-indeed they must-enforce deadlines” for the filing of motions and other papers).

         Plaintiffs' counsel have failed to meet their burden of showing that excusable neglect prevented them from timely filing their response to the motions for summary judgment. Their alleged busyness fails to meet the Seventh Circuit's excusable neglect standard. Accordingly, the Court DENIES Plaintiffs' motion for leave to file a late response to the defendants' motions for summary judgment instanter.[1]

         Motions for Summary Judgment

         Summary judgment must be granted when “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). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine whether a genuine dispute of material fact exists, the Court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

         A party opposing a properly supported summary judgment motion may not rely on allegations in her own pleading but rather must “marshal and present the court with the evidence she contends will prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture will not suffice.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the nonmoving party fails to establish the existence of an essential element on which he bears the burden of proof at trial, summary judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

         Local Rule 56-1(a) requires a summary judgment movant to file a “‘Statement of Material Facts' that identifies the facts that the moving party contends are not genuinely disputed.” N.D. Ind. L.R. 56-1(a). The party opposing the motion must respond within twenty-eight days with a “Statement of Genuine Disputes” that sets forth the “material facts that the party contends are genuinely disputed so as to make a trial necessary.” N.D. Ind. L.R. 56-1(b)(2). “[A] failure to respond by the nonmovant as mandated by the local rules results in an admission.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). When an opposing party fails to respond to a summary judgment motion, Federal Rule of Civil Procedure 56(e) permits judgment for the moving party only if the movant is entitled to it. Fed.R.Civ.P. 56(e)(3). In other words, summary judgment may only be granted “if appropriate-that is, if the motion demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 392 (7th Cir. 1995) (citation omitted)).

         Defendants filed a Combined Statement of Material Facts in accordance with Local Rule 56-1(a). Plaintiffs failed to comply with Local Rule 56-1(b) by failing to file their response to Defendants' motions for summary judgment in a timely manner, and the Court has denied Plaintiffs' motion for leave to file their untimely response. Thus, the facts as claimed and properly supported by Defendants in their Combined Statement of Material Facts are deemed admitted without controversy. This Court has ...


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