United States District Court, S.D. Indiana, Indianapolis Division
LEIF HINTERBERGER, 49-50 LLC, CARREAU DESIGN CORPORATION, 49TH STREET SHOPS LLC, UPTOWN RETAIL LLC, UPTOWN BUSINESS CENTER LLC, Plaintiffs,
CITY OF INDIANAPOLIS, Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT AND OTHER
PENDING MOTIONS (DKTS. 132, 137, 149, 157)
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT
sued various Defendants, among them the City of Indianapolis
(“the City”), under 42 U.S.C. § 1983 and
state law for alleged harms arising from Plaintiffs'
failed real-estate development bid. Now before the Court is
the City's motion for summary judgment, Dkt. 132,
see Fed. R. Civ. P. 56, and collateral motions.
Dkts. 137 (sanctions), 149 (motion in limine), 157
(same). For the reasons given below, the motion for summary
judgment is granted. The motions in limine are
denied as moot without further discussion. The City's
motion for sanctions is denied without prejudice on the terms
described under “Conclusion and Order” below.
are Leif Hinterberger, an Indianapolis real estate developer,
and his companies, whom we refer to collectively as
“Hinterberger.” (The Clerk has previously entered
the default of Defendant Mansur Real Estate Services, and
Defendant Charles Cagann (“Cagann”) has been
dismissed by stipulation.) Much of what follows is taken
directly from the City's “Statement of Material
Facts Not in Dispute, ” for reasons explained below.
spring 2005, Hinterberger had modest plans for a small retail
development he called “The Uptown” to occupy five
plots of land at the northwest corner of the intersection of
49th Street and College Avenue in Indianapolis. Hinterberger
closed on the sale of the five plots in April of that year.
As initially conceived, Hinterberger had no plans to pursue
public financing, funding, or grant money for The Uptown.
time, Maury Plambeck (“Plambeck”) was serving as
the director of the City's Department of Metropolitan
Development (DMD). Plambeck expressed excitement about
Hinterberger's project and suggested that Hinterberger
add apartments. Adding a housing component to the project
required Hinterberger to acquire the remaining half of the
block. Initially, Hinterberger did not want to add a housing
component because in his opinion it did not make financial
sense. Plambeck then suggested to Hinterberger that the City
could put together a package of public funding taken from
various sources to help finance the development.
had never sought public financing before 2005 but he was
interested in seeking public financing for The Uptown.
Between 2007 and 2011, the City presented public financing
options to Hinterberger. The options came with different
contingencies outlined in four commitment letters. The City
made clear the options were subject to detailed terms and
execution of a final definitive project agreement.
Hinterberger never satisfied the contingencies and conditions
for receipt of public funds, and thus no final written
agreement was ever executed.
recommended that Hinterberger work with Cagann, a partner
with Mansur Real Estate Services (“Mansur”), who
was familiar with development projects that entailed a public
financing component. In 2000, the City's Metropolitan
Development Commission had contracted with Mansur to oversee
another development project in Indianapolis, which was
substantially completed by 2004. This was the only contract
Mansur ever entered into with the City.
2005, Hinterberger sought out Cagann to ask whether Mansur
was interested in partnering with him on The Uptown. At
Hinterberger's request, Cagann signed a nondisclosure
agreement on behalf of Mansur (“the NDA”). The
City was not a signatory to that agreement. The parties to
the NDA were only Mansur and one of Hinterberger's
point in 2005, Hinterberger began sharing economic modeling
information with Cagann and Plambeck related to the 49th
Street and College Avenue corridor. By 2007, he had completed
his economic modeling, acquired the other half-block of real
estate at 49th and College (four additional lots, now nine in
total), and rezoned the land to build an expanded project.
But by 2008, the real estate market was in serious decline
and nearly every developer was feeling those negative
2010, Hinterberger was experiencing financial difficulty. He
had defaulted on loans and lenders were looking to short-sell
his properties. Hinterberger knew that if he lost control of
the properties, there was a good chance the expanded project
would not come to fruition. By December 2010, Hinterberger
had sold the four additional lots he had acquired in 2007.
2011 or early 2012, Hinterberger was bankrupt. He lost the
original five lots at 49th Street and College Avenue at a
sheriff's sale in August 2012. By October 2012,
Hinterberger's bankruptcy attorney was threatening the
City with litigation. This lawsuit was filed on
three-and-a-half years later on May 31, 2016. Dkt. 1.
complaint charges the following causes of action: Count I, a
Section 1983 “Monell claim”; Count II,
state-law promissory estoppel; Count III, state-law equitable
estoppel (Count III has been withdrawn. Dkt. 131, at 8 n.1);
Count IV, a Section 1983 Equal Protection Clause claim; Count
V, a Section 1983 substantive due process claim; Count VI, a
Section 1983 procedural due process claim; Count VII,
state-law breach of contract; Count VIII, state-law
misappropriation of trade secrets; and Count IX, state-law
unjust enrichment. These claims are the subjects of the
pending summary judgment motion filed by the City.
judgment is appropriate where there are no genuine disputes
of material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). “A party that does
not bear the burden of persuasion may move for summary
judgment ‘by showing-that is, pointing out to the
district court-that there is an absence of evidence to
support the nonmoving party's case.'”
Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir.
2013) (nested quotation marks omitted) (quoting Celotex
Corp. v. Catrett, 477 U.S. 137, 325 (1986)). If
“‘the non-movant does not come forward with
evidence that would reasonably permit the finder of fact to
find in h[is] favor on a material question, then the court
must enter summary judgment against h[im].'”
Id. (emphasis omitted) (quoting Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)).
our local rules, a movant's brief “must include a
section labeled ‘Statement of Material Facts Not in
Dispute' containing the facts that are potentially
determinative of the motion[, ] and as to which the movant
contends there is no genuine issue.” S.D. Ind. L.R.
56-1(a) (internal subdivisions omitted). The nonmovant's
brief similarly “must include a section labeled
‘Statement of Material Facts in Dispute' that
identifies the potentially determinative facts and factual
disputes that the party contends demonstrate a dispute of
fact precluding summary judgment.” S.D. Ind. L.R.
56-1(b). Such statements should contain only material facts,
“not . . . mere background facts, ” and must
“state facts, not the party's argument . . .
.” S.D. Ind. L.R. 56-1(a) cmt.; S.D. Ind. L.R. 56-1(b)
cmt. “[E]ach fact” asserted in a brief must be
supported by a “specif[ic]” citation to the
record. S.D. Ind. L.R. 56-1(e). The court “has no duty
to search or consider any part of the record not specifically
cited” in this manner. Id. The movant's
facts “are admitted without controversy” unless
the nonmovant “specifically controverts” them in
his fact statement; shows them to be unsupported by
admissible evidence; or shows that reasonable inferences in
his favor can be drawn from them sufficient to preclude
summary judgment. S.D. Ind. L.R. 56(f)(1)(A)-(C).
outline form, this procedure has been well settled for more
than thirty years. And for more than thirty years, nonmovants
have frequently “‘misconceive[d] what is required
of them.'” Modrowski, 712 F.3d at 1167
(quoting Waldridge, 24 F.3d at 921). Against even
this backdrop, though, Hinterberger's opposition brief
stands out as remarkable. It has all the appearance of
diligence and competence without a crumb of their substance.
It is difficult to overstate how frustrating this is to the
Court; how breezily, almost cheerfully deficient; how
negligent of the applicable law, not to mention the truth;
how unrelentingly at war it is with a “just, speedy,
and inexpensive determination” of this action.
Fed.R.Civ.P. 1. A few observations and examples may help to
illustrate the severity of the problem we have faced in our
struggle to correctly and justly resolve the issues before
us; an exhaustive account is simply beyond us.
summary judgment record spans nearly 2, 000 pages; 1, 935, to
be precise. There are, thus, a great many
“facts.” The City's disciplined
“Statement of Material Facts Not in Dispute” is
six pages in length, divided into thirty numbered paragraphs.
Out of a forty-four-page brief, Hinterberger's
“Material Facts Precluding Summary Judgment” is
twenty-one pages long, none of which is responsive to, or
shows more than a dim awareness of, the City's fact
statement. “There is no attempt to controvert the
factual averments set forth in [the City's] own
statement[.]” Waldridge, 24 F.3d at 922. It is
simply a narrative, one that is exceptionally difficult to
follow and woven principally from strands of insinuation and
innuendo. This “defeats the whole point” of the
fact statement required by Local Rule 56-1(b)-“to
identify just what facts are actually in dispute.”
Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d
524, 528 (7th Cir. 2000) (former N.D.Ill. L.R. 12(N)).
fact statement is divided into nine sections. The sections
bear headings such as: “There are disputed issues of
fact created by the uncontested facts of Hinterberger's
performance and detrimental reliance.” “There are
disputed issues of fact created by the City's acts and
statements destroying Hinterberger's ability to work as
an Indianapolis developer.” Br. Supp. i. But the
respective sections do not speak to any disputes at all. For
example, the latter section, two paragraphs long, simply
asserts: “The City and its agents were actively
involved in destroying not only the Uptown project and the
neighboring Uptown Business Center but also
Hinterberger's livelihood and reputation.” Br. Opp.
20. What is the dispute? “The statement is so full of
argument” and tedious rhetoric that again “the
whole point” of it is defeated. Bordelon, 233
F.3d at 528.
above-mentioned two paragraphs are supported by a total of
three citations. They refer nonspecifically to a four-page
e-mail exchange, a fifteen-page e-mail exchange, and a
thirteen-page e-mail exchange, respectively. Pls.' Exs.
107, 108, 109. But procedural rules require that assertions
of fact be supported by “specif[ic]” citations.
S.D. Ind. L.R. 56-1(e). Also Ammons v. Aramark Uniform
Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). The
e-mail exchanges occurred between City officials discussing
two e-mails from Hinterberger in which they raise concerns
about Hinterberger's mental health and stability. This is
the only evidentiary support for the charge, “The City
and its agents were actively involved in destroying . . .
Hinterberger's livelihood and reputation.” Br.
Supp. 20. It is beyond generous to say that no reasonable
jury could infer the latter from the former.
assertions dispense with even the appearance of support:
With this inflammatory slander expressed to the head of DMD,
Hinterberger's ability to get any project off the ground
in Indianapolis were significantly undermined, as seen by the
fact that Thies would not discuss the Uptown (even though he
recognized that the project was not dead). Indeed, it was
Vaughn (not Hinterberger) who [in order] to change directions
on the communications, inserted lawyers into the mix.
However, Hinterberger did not make such threats against the
Id. (no citations omitted) (footnote text moved to
body text). These are only two paragraphs from the brief but
they are fairly representative of Hinterberger's entire
a material fact is not disputed (or if there is no evidence
that controverts the fact), the district court is entitled to
know that up front, without first having to examine citations
to evidence having only marginal bearing on the
question.” Bordelon, 233 F.3d at 528.
“And a mere disagreement with the movant's asserted
facts is inadequate if made without reference to specific
supporting material.” Smith v. Lantz, 321 F.3d
680, 683 (7th Cir. 2003) (citing Edward E. Gillen Co. v.
City of Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993)).
“In short, ‘judges are not like pigs, hunting for
truffles buried in briefs.'” Id.
(alteration omitted) (quoting United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Had we
enough time and patience and fortitude, a detailed study
could be made of Hinterberger's citation practices. Their
effects range from the comical to bewildering to profoundly
example, Hinterberger's opposition brief adverts
repeatedly to the claim that DMD official Reginald Walton
(“Walton”), in accordance with City policy, used
his position to frustrate Hinterberger's designs through
the use of sham environmental remediation work. At one point
in his fact statement, Hinterberger states,
As [he] [was] arrang[ing] for his Uptown Business Center LLC
to file for bankruptcy so as to negotiate repurchase of the
property, Reggie Walton's DMD department [sic]
sent environmental remediation trucks to the site (Ex. 103),
and similar to what occurred at the Uptown, a sudden
appearance of environmental remediation trucks made it
virtually impossible to arrange for refinancing. (Ex. 104;
Ex. 105, ¶ 7)
Opp. 19. Though we focus below on the three record citations,
“Walton's DMD department” is also an
instructive example of Hinterberger's dubious tendency
toward insinuation. “Walton's official title was
Assistant Administrator for the Department of Metropolitan
Development” and he was later convicted of
honest-services fraud on the City and on the department for
which he worked. United States v. Johnson, 874 F.3d
990, 994, 998-99 (7th Cir. 2017) (proceedings on which
Hinterberger places considerable reliance).
Exhibit 103 comprises a series of three unidentified, undated
photographs: one of a white pickup truck bearing the
inscription “MIDWAY SERVICES, INC.”; one of a
group of nine black barrels or drums; and one of a white van
bearing the inscription “VAPOR PROTECTION
SERVICES.” There is no foundation established for these
photos or further explanation. There is not even a
“buried truffle” to be rooted out.
104 is a document comprising twenty-eight blacked-out pages.
There is nothing else. It is simply a series of twenty-eight,
eight-and-a-half by eleven, blacked-out rectangles. In the
CM/ECF system, it is marked “REDACTED.” Quite
apart from its inherent obfuscation, there is absolutely no
procedural warrant for such a submission. See Fed.
R. Civ. P. 5.2; S.D. Ind. L.R. 5-11(c)(2).
105 purports to be the affidavit of “Michael Mergell,
” a person nowhere identified, filed in connection with
the bankruptcy of Uptown Business Center, LLC.
7 reads in full:
In our view this Uptown Business Center is refinanceable,
with terms commensurate to the terms offered, once the issues
surrounding chain of title, warrantees, insured closing and
now environmental are resolved. The indubitable, actual value
of the existing note purchased has many clouds within the
title. In my opinion for the open market to purchase this
note, for this junk note to have the note valued at the
offering these issues would need to be cleared up.
Pls.' Ex. 105 ¶ 7.
in any of this “evidence” is there any mention of
(1) DMD, (2) Walton, (3) the sudden appearance of
environmental remediation trucks, or (4) refinancing being
made virtually impossible because of the sudden appearance of
environmental remediation trucks. Indeed, in stating that the
Uptown Business Center “is refinanceable, ”
Pls.' Ex. 105 ¶ 7, Mergell's affidavit (whoever
he may be) flatly contradicts point (4) above. We can only
conclude Hinterberger has wagered that no one will look into
the matter too closely.
second set of examples taken from the argument section of
Hinterberger's brief fleshes out the point. Hinterberger
[City officials] assail[ed] Hinterberger's good name,
reputation, honor, and integrity in a manner that
“seriously affected” his work as a real estate
developer. The DMD director-the head of the office that
handles developments and zoning-testified that he could not
work with Hinterberger due to Vaughn's statements. (Ex.
88, Thies 176:15-177:24) Hinterberger attempted to establish
relationships with other Indianapolis real estate development
firms as investors, and after the City spoke with them they
refused to work further with Hinterberger. (Ex. 131; Ex. 15,
Cagann 238-240) It was impossible for Hinterberger to act as
a developer in Indianapolis given the City's statements
Br. Opp. 32 (no citations omitted).
cited excerpts of Thies's deposition, Pls.' Ex. 88,
neither mention Vaughn, nor reference his comments, nor
contain any statement by Thiel that he could no longer work
with Hinterberger. “Ex. 131” is a nonspecific
citation to a thirteen-minute audio recording apparently of a
telephone conversation between Hinterberger and “Austin
Carmony, ” who (like Mergell) is nowhere identified. It
is in addition obviously inadmissible hearsay. More notably,
throughout their conversation, “Austin Carmony”
does nothing but express a willingness to work with
Hinterberger. Finally, the cited excerpts of Cagann's
deposition, Pls.' Ex. 15, like the citations to
Thies's, have nothing to do with the statement it
allegedly supports. Cagann Dep. 238:1-240:25 (explaining real
estate developers “that do the affordable housing
thing” require municipal backing of prospective
development partners). As above, we conclude that
Hinterberger can only have operated on the assumption that no
one would be checking his factual assertions against his
and other problems are compounded by Hinterberger's
persistent equivocations on matters nominally at the heart of
his case and by his seemingly studied refusal to understand
materiality. For example, the second section of his fact
statement bears the heading, “There are disputed issues
precluding summary judgment based on evidence that the City
required Hinterberger to work under a gag order and through
and with not for profit groups and Cagann.” Br. Opp. i.
Hinterberger elaborates: “[A]s a quid pro
quo for continuing the City's commitment” to
Hinterberger, the City “made Hinterberger agree to not
publicly complain about delays or conditions imposed on upon
him by the City, and not take actions” against the
City's mayoral administration. Br. Supp. 6. But which was
it-a “gag order” (a phrase that appears seven
times in Hinterberger's opposition and a notion that
appears several times more) or a “quid pro
quo” and an “agree[ment]”? Later in
his fact statement, Hinterberger settles on “‘gag
order' agreement.” Br. Supp. 14.
event, the only record support for an “agreement”
in the above cited passage relates to Hinterberger's
promise, contained in an e-mail between City officials and
“not adhere[d] to” by him, to communicate with
the City “not as a one-off project” but as part
of a “team” with other project partners.
Pls.' Ex. 49, at 1. Hinterberger designates this e-mail
twice, Pls.' Exs. 49, 126, and cites it twice within the
same citation under two different exhibit numbers, fairly
eliminating the possibility of mistake on his part and
creating the false appearance of greater support than his
factual assertion is entitled to receive. Again we are forced
to conclude that Hinterberger has assumed no one would be
appears to have struck Hinterberger belatedly that he must
make a distinction between voluntariness and coercion in
order to convert a businessman's poor business decisions
into a campaign of constitutional and state-law torts. In his
fact statement, Hinterberger states, “Plambeck stated
that [if Hinterberger pursued an expanded Uptown project, ]
the City would make the zoning approval for such development
smooth, but would on the other hand make zoning difficult
were Hinterberger not to accede to the City's
demands.” Br. Opp. 3. This apparently is the City's
original sin, the primary coercive act that laid the chains
of necessity upon Hinterberger in all his future dealings
with the City. For this proposition Hinterberger cites only
his own deposition and his own affidavit. Hinterberger Dep.
(Pls.' Ex. 1) 67:4-69:19, 70:22-71:14; Hinterberger Aff.
(Pls.' Ex. 4) ¶ 2.
deposition, there is nary a whiff nor a whisper of coercion.
“And I crunched the numbers . . . [a]nd I said, you
know, ‘Maury, I'll try and add apartments to do a
second story.'” Hinterberger Dep. 67:9-15.
“So we looked at crunching numbers to do that. We said,
‘Okay, Maury. We'll entertain looking at that . . .
.'” Id. 68:4-6. He described his
conversations with Plambeck as “[leading] into the
excitement and then wanting to do more than just my base
ideas.” Id. 65:9-1. He characterized his
working relationship with the City from 2005 to 2007 as
“everything-everybody's working together. We were
all-it all seemed very, very ordinary. What was going on
seemed great.” Id. 163:2-4. And Hinterberger
identified “assistance with the zoning” as one of
the City's promises to him. Id. 77:1. See
also Dkt. 131, at 7 (Pls.' Statement of Claims)