United States District Court, N.D. Indiana
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE.
matter is before the Court on the: (1) Motion for Summary
Judgment, filed by Defendant Hoeppner Wagner & Evans,
LLP, on November 28, 2017 [ECF No. 211]; and (2) Motion for
Leave to File Surreply to Defendant Hoeppner Wagner &
Evans' Reply in Support of Summary Judgment, filed by pro
se Plaintiff Paul Fletcher on June 20, 2018 [ECF No. 239].
For the reasons set forth below, the Motion for Leave to File
Surreply [ECF No. 239] is DENIED AS MOOT. The Motion for
Summary Judgment [ECF No. 211] is GRANTED. The Clerk is
ORDERED to dismiss Count I of the First Amended WITH
PREJUDICE and to CLOSE this case.
Plaintiff who is currently pro se, brought one count of legal
malpractice against the Defendant in this action. [ECF No.
38]. The Plaintiff claims that the Defendant negligently
represented him in his state court lawsuit, Paul Fletcher
v. National Financial Services, LLC d/b/a Fidelity
Investments and Mark Zupan, Cause No. 45D02-1405-PL-14,
filed in Lake Superior Court on February 24, 2009. [ECF No.
underlying state suit, the Plaintiff alleged that his friend,
Scott Taylor, named Fletcher as the beneficiary of three of
Taylor's retirement accounts with National Financial
Services, LLC (“Fidelity”), but a “change
of beneficiary form was forged by [Mark] Zupan, ” to
fraudulently designate himself as the beneficiary of those
accounts. (Id. at ¶ 12.)
counts in the Amended Complaint (II-IV) were alleged against
co-Defendant Wayne Golomb, but these claims were previously
dismissed by Judge Rudy Lozano in his order granting summary
judgment in favor of Defendant Golomb on September 25, 2017.
[ECF No. 204]. Because the facts of this case are discussed
in detail in Judge Lozano's previous order, this Court
will not recite them again here. However, the Court will
discuss the facts relevant to this particular count and
Defendant filed the instant Motion for Summary Judgment on
November 28, 2017. [ECF No. 211]. On the same date, it also
filed a Notice [ECF No. 214] of summary judgment to the pro
se Plaintiff in accordance with Timms v. Frank, 953
F.2d 281, 285 (7th Cir. 1992). The Defendant's main
argument is that there can be no malpractice liability
because it has shown by uncontradicted expert evidence that
it met the established standard of care in representing the
Plaintiff. Following five motions for extension of time to
respond, the Plaintiff filed a Response [ECF No. 235] on May
23, 2018. The Plaintiff argues, among other things, that he
does not need to present expert testimony on the issue of
malpractice because the common knowledge exception applies.
The Defendant filed a Reply [ECF No. 238] on June 5, 2018.
The Plaintiff filed his Motion for Leave to File a Surreply
[ECF No. 239] on June 20, 2018; the Defendant filed an
Objection [ECF No. 240] on June 26, 2018; and the Plaintiff
filed a Reply [ECF No. 241] on July 9, 2018. The instant
Motions are fully briefed and ready for adjudication.
Motion for Leave to File Surreply
Plaintiff filed a motion for Leave to File a Surreply and
attached the proposed surreply memorandum. (See ECF
No. 239-1.) Local Rule 7-1 permits parties to file a
supporting brief, a response, and a reply, “but does
not contemplate the filing of a surreply or response to the
reply brief.” Lafayette Life Ins. Co. v. City of
Menasha, Wisconsin, No. 4:09 cv 64, 2010 WL 4553667, at
*1 (N.D. Ind. Nov. 3, 2010) (denying motion for leave to file
surreply where the “surreply is another attempt to
point to the weaknesses in the defendant's brief, and
ignores that it is the court's duty to weigh the
arguments, distinguish cases, and apply the law.”).
Courts generally do not permit litigants to file a surreply
brief. Id. However, “a surreply brief is
occasionally allowed when it raises or responds to some new
issue or development in the law.” Id.; see
also Hall v. Forest River, Inc., No. 3:04-cv-259, 2008
WL 1774216, at *1 n.1 (N.D. Ind. Apr. 15, 2008). The Court
has reviewed the Plaintiff's surreply, and it does not
raise or respond to new issues or legal developments; it only
reiterates arguments already made. In any event, the Court
would come to the same conclusion regarding the
Defendant's Motion for Summary Judgment regardless of
whether it accepted the Plaintiff's surreply. Thus, the
Plaintiff's Motion for Leave to File a Surreply is denied
Motion for Summary Judgment
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 (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 non-moving party and draw all
reasonable inferences in that party's favor. See
Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
However, “a court may not make credibility
determinations, weigh the evidence, or decide which
inferences to draw from the facts; these are jobs for a
factfinder.” Payne v. Pauley, 337 F.3d 767,
770 (7th Cir. 2003) (citations omitted).
opposing a properly supported summary judgment motion may not
rely on allegations in his own pleading but rather must
“marshal and present the court with the evidence [he]
contends will prove [his] 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 non-moving 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).
Summary judgment is the “put up or shut up moment in a
lawsuit, when a party must show what evidence it has that
would convince a trier of fact to accept its version of
events.” Johnson v. Cambridge Indus., Inc.,
325 F.3d 892, 901 (7th Cir. 2003).
pro se plaintiffs are generally entitled to lenient
standards, they are required to comply with local procedural
rules governing motions for summary judgment. See,
e.g., Cady v. Sheahan, 467 F.3d 1057, 1061 (7th
Cir. 2006). The Local Rules of the Northern District of
Indiana call for the party opposing summary judgment to
include a section labeled “Statement of Genuine
Disputes” that identifies the material facts the party
contends are genuinely disputed. The Court notes that
Plaintiff's response has a subheading
“Fletcher's Rebuttal of HWE's Statement of
Material Facts/Fletcher's Statement of Material
Facts” (see Pl. Resp. Br. 1, ECF No. 235) and
then numbered paragraphs, but there is not a second heading
for legal argument. While some facts have citations to the
record, much of the information in the fact section contains
improper legal argument, convoluted arguments, and
unsupported statements. The Seventh Circuit has reiterated the
need for an appropriate factual statement in opposition to a
motion for summary judgment: “[t]hese statements are
not merely superfluous abstracts of evidence . . . they are
intended to alert the court to precisely what factual
questions are in dispute and point the ...