United States District Court, N.D. Indiana, Hammond Division
ANTHONY E. ELLO and EVELYN ELLO, Plaintiffs,
SEVEN PEAKS MARKETING CHICAGO, LLC, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
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].
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).
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.
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.
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.
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
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.
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.
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
Plaintiffs Anthony Ello (“Anthony”) and Evelyn
Ello (“Evelyn”) are married and reside in
Plaintiffs had an interest in a bowling alley and lounge
located in Chesterton, Indiana (“Bowling Alley”).
July 2013, Plaintiffs intended to close the Bowling Alley due
to lack of community support.
Defendant SPMC is a Utah limited liability company with its
principal place of business in Utah, and is registered to do
business in Indiana.
specialized in family entertainment.
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
a local realtor contacted SPMC about the Bowling Alley, SPMC
expressed an interest in leasing or buying the Bowling ...