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Ello v. Seven Peaks Marketing Chicago, LLC

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

August 21, 2019

ANTHONY E. ELLO and EVELYN ELLO, Plaintiffs,
v.
SEVEN PEAKS MARKETING CHICAGO, LLC, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         This matter is before the Court on the Defendant's Motion for an Order Establishing Facts at Trial [ECF No. 178] filed on May 31, 2019. The Plaintiffs filed their response [ECF No. ECF No. 184] on June 14, 2019. On July 5, 2019, the Defendant filed a reply [ECF No. 201] in further support of their Motion. For the reasons stated below, the Court GRANTS the Defendant's Motion for an Order Establishing Facts at Trial [ECF No. 178].

         BACKGROUND

         In 2013, the Plaintiffs entered into a lease agreement with Defendant Seven Peaks Marketing Chicago, LLC (“SPMC”), pursuant to which the Plaintiffs leased their bowling alley to SPMC for thirteen years. SMPC vacated the property after eleven months. Plaintiffs filed this lawsuit asserting that (1) SPMC breached the lease agreement (Count 1); (2) Defendant Gary Brinton is liable for SPMC's alleged misconduct under an alter ego theory of liability (Count 2); and (3) Gary Brinton and SPMC fraudulently induced the Plaintiffs to enter into the lease agreement (Count 3).

         During the discovery phase of this case, the Defendants, served the Plaintiffs with requests for admission. The Plaintiffs failed to timely answers the requests for admission. After the close of discovery, Defendant Gary Brinton filed a Motion for Summary Judgment and Subject Matter Jurisdiction Challenge [ECF No. 126] on August 14, 2017. On that same day, Defendant SPMC filed a Motion for Summary Judgment and Subject Matter Jurisdiction [ECF No. 128]. Subsequently, on August 17, 2017, Defendants Gary Brinton and SPMC filed an Amended Motion for Summary Judgment and Subject Matter Jurisdiction Challenge [ECF No. 131] with a Combined Statement of Material Facts [ECF No. 131-1] in accordance with Local Rule 56-1(a). The Plaintiffs eventually filed a motion for leave to file a late response to the Defendants' motions for summary judgment instanter [ECF No. 133] on September 26, 2017. On that same day, the Plaintiffs filed their response [ECF No. 135] to the motions for summary judgment.

         In an Order and Opinion [ECF No. 147] dated March 28, 2018, the late Honorable Rudy Lozano ruled on the parties' various motions. First, Judge Lozano denied the Plaintiffs' motion [ECF No. 133] for leave to file a late response to the Defendants' motions for summary judgment. Next, Judge Lozano granted Defendant Gary Brinton's motions for summary judgment [ECF Nos. 126 and 131], thereby terminating Defendant Gary Brinton as a party to the case. Judge Lozano specifically held: “[T]he facts as claimed and properly supported by Defendants in their Combined Statement of Material Facts are deemed admitted without controversy. This Court has reviewed the following facts and finds that they are adequately supported with appropriate citations to admissible evidence in the record.” See Op. & Order, at 9-10.

         With respect to SPMC's motion for summary judgment [ECF No. 128], Judge Lozano granted summary judgment on Counts 2 and 3 but denied summary judgment as to Count 1. Id. at 27. Finally, Judge Lozano denied the Plaintiffs' motion for summary judgment instanter. Id. Therefore, the only pending count remaining in the case is Count 1 for breach of contract. See id.

         The case was reassigned to this Court on August 20, 2018 [ECF No. 153]. On February 12, 2019, the Court scheduled the case for trial to commence on September 17, 2019, and set a final telephonic pretrial conference (“FTPC”) date of August 19, 2019 [ECF No. 165]. Prior to the FTPC, Defendant SPMC, the only remaining defendant in the case, filed the instant Motion. The Motion was fully briefed prior to the FTPC.

         ANALYSIS

         During the FTPC, the Court, on the record, granted the Defendant's Motion that the findings Judge Lozano deemed admitted in his summary judgment order were “established in the case” pursuant to Federal Rule of Civil Procedure 56(g). The Court informed the parties that the Court would issue a written order granting the Defendant's Motion. For the reasons stated below, the Court grants the Defendant's motion.

         Federal Rule of Civil Procedure 56(g) provides: “If the court does not grant all the relief requested by the [summary judgment] motion, it may enter an order stating any material fact- including an item of damages or other relief-that is not genuinely in dispute and treating the fact as established in the case.” The Committee Notes to Rule 56 adds that a court should “take care” to ensure that the use of Rule 56(g) “does not interfere” with a nonmovant's ability to accept a fact for “purposes of the [summary judgment] motion only.” Fed.R.Civ.P. 56(g) advisory committee's note.

         Defendant SPMC filed a Rule 56(g) order requesting that the Court establish for trial the unrefuted facts set out in its Combined Statement of Material Facts. The Defendant asserts that Judge Lozano “held each fact on which [he] relied in [his] Opinion and Order ruling on summary judgment was supported by determinative, competent evidence.” Def.'s Mem. in Supp. of Rule 56(g) Motion at 1, ECF No. 179. Accordingly, the Defendant requests that the following facts, verbatim from summary judgment opinion, should be “deemed admitted without controversy” pursuant to Rule 56(g):

         1. Plaintiffs Anthony Ello (“Anthony”) and Evelyn Ello (“Evelyn”) are married and reside in Chesterton, Indiana.

         2. Plaintiffs had an interest in a bowling alley and lounge located in Chesterton, Indiana (“Bowling Alley”).

         3. In July 2013, Plaintiffs intended to close the Bowling Alley due to lack of community support.

         4. Defendant SPMC is a Utah limited liability company with its principal place of business in Utah, and is registered to do business in Indiana.

         5. SPMC specialized in family entertainment.

         6. SPMC has articles of incorporation and an operating agreement. It is registered to do business in Utah, Delaware and Indiana, files its own annual tax return, and maintains a separate bank account.

         7. When a local realtor contacted SPMC about the Bowling Alley, SPMC expressed an interest in leasing or buying the Bowling ...


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