Gonzalez et al v. Dominick et al

Filing 209

WRITTEN Opinion entered by the Honorable Harry D. Leinenweber on 6/28/2012: Defendants motion for summary judgment [Dkt. No. 187] is granted. Defendants' motion to strike Plaintiff's responses to Defendants' statement of facts is granted in part and denied in part. Defendants' motion for fees and costs as a sanction under Rule 11 is denied. Case Terminated Mailed notice(wp, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Harry D. Leinenweber

CASE NUMBER

06 C 3961

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

6/28/2012

Gonzalez et al. Vs. Dominick et al

DOCKET ENTRY TEXT

Defendants’ motion for summary judgment [Dkt. No. 187] is granted. Defendants’ motion to strike
Plaintiff’s responses to Defendants’ statement of facts is granted in part and denied in part. Defendants’
motion for fees and costs as a sanction under Rule 11 is denied.

O[ For further details see text below.]

Docketing to mail notices.
Mailed AO 450 form.

STATEMENT
Before the Court is Defendants’ motion for summary judgment, Defendants motion to strike
Plaintiffs’ denial of Defendants’ statements of fact, and Defendants’ motion for attorney’s fees and costs as a
Rule 11 sanction. For the following reasons, the motion for summary judgment is granted; the motion to
strike is granted in part and denied in part; the motion for attorney’s fees and costs is denied.
I. BACKGROUND
Plaintiff Ramiro Gonzalez (“Ramiro”) is the past president of the Town of Cicero. He lost his 2005
bid for re-election; Defendant Larry Dominick (“Dominick”) won. Prior to the election, Ramiro and his wife,
Plaintiff Anna Saucedo (“Saucedo”) received permits to build their home at 3624 South 61st Avenue in
Cicero (“The Ramiro Property”). Ramiro’s brother, Gustavo Gonzalez (“Gustavo”) also had received permits
prior to the election to build his home at 3603 South Central Avenue in Cicero (“The Gustavo Property”).
Ramiro’s other brother, Adalberto Gonzalez (“Adalberto”), purports to be the owner of a vacant lot at 3604
South Central Avenue (“The Adalberto Property”). All three claim under 42 U.S.C. § 1983 that shortly after
Ramiro lost the election and Dominick was sworn in, they were retaliated against for Ramiro’s First
Amendment speech opposing Dominick’s election and voicing concern for how Dominick used town funds.
The campaign against Plaintiffs allegedly consisted of inspections of The Ramiro and Gustavo Properties,
issuances of stop-work orders and denials of work and occupancy permits. Adalberto was issued citations for
failure to construct a fence around his property. Also named as a Plaintiff is Family Bank and Trust, as
Trustee (“The Trust”), of the Ramiro Property.
Plaintiffs also sued the village of Cicero as indemnifier of Dominick. Attorneys Michael Del Galdo
and Joseph Giglio, who acted as Cicero attorneys, are also accused of First Amendment retaliation. All
individual defendants are also accused of § 1983 conspiracy. Lastly, Ramiro alleged that the village withheld

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STATEMENT
some of his final salary payments without cause. This survived a motion to dismiss as a contract claim, but
Plaintiffs withdrew that count in responding to the motion for summary judgment. Accordingly, all that
remains are Plaintiffs’ allegations of First Amendment retaliation and conspiracy.
Defendants have moved for summary judgment and to strike Plaintiffs’ response to Defendants;
statements of facts for failure to comply with Local Rule 56.1. They also move for attorney’s fees as a
sanction for filing a frivolous lawsuit.
II. LEGAL STANDARD
To prevail on their § 1983 retaliation claim, Plaintiffs need to prove (1) that they were engaged in
constitutionally protected speech; (2) that public officials took adverse actions against them; and (3) that the
adverse actions were motivated at least in part as a response to the Plaintiffs' protected speech. Springer v.
Durflinger, 518 F.3d 479, 483 (7th Cir. 2008).
Summary judgment is proper where there is no showing of a genuine issue of material fact in the
pleadings, depositions, answers to interrogatories, admissions to file, and affidavits, and where the moving
party is entitled to judgment as a matter of law. Id. Summary judgment is the “put up or shut up” moment
in a lawsuit. Id. If a movant alleges sufficient facts that would require summary judgment, the non-moving
party may not rest on his pleadings, but must put forth evidence showing a dispute as to a material fact exists.
Scaife v. Cook County, 446 F.3d 735, 740 (7th Cir. 2006).
In a motion for summary judgment, Local Rule 56.1(b)(3)(B) requires that a party opposing summary
judgment, if it disagrees with a movant’s statement of fact, deny those facts in a numbered response with
“specific references to the affidavits, parts of the record, and other supporting materials relied upon.” L.R.
56.1(b)(3)(B). The local rule also requires that any additional facts establishing denial of summary judgment
are required be put forth by the non-movant in “a statement, consisting of short numbered paragraphs” and
include “references to the affidavits, parts of the record, and other supporting materials relied upon.” L.R.
56.1(b)(3)(C).
“The obligation set forth in Local Rule 56.1 ‘is not a mere formality.’” Delanaz v. Richardson, 634
F.3d 895, 899 (7th Cir. 2011) (internal citations omitted). “The rule is designed, in part, to aid the district
court, ‘which does not have the advantage of the parties’ familiarity with the record to locate the relevant
information.’” Id.
III. ANALYSIS
A. Plaintiff’s Failure to Adhere to Local Rule 56.1
The Court first notes that many of the facts from the above-mentioned background section come from
Plaintiffs’ complaint, because Plaintiffs failed to enter many of them into evidence by citing them in their
statement of additional facts. Additionally, all of Plaintiffs’ denials of Defendants’ statements of fact (save
one) are without citation to the record. See ECF No. 194-3 (denying Defendants’ facts without citation, save
for denial D28, which quotes a deposition). The Court grants Plaintiff’s motion to strike those denials and
accepts as true Defendants’ statement of facts.
Additionally, nowhere in their statement of additional facts do plaintiffs identify what speech
engendered the alleged retaliation. See ECF 194-4. Without this, Plaintiffs have failed to show they were
engaged in Constitutionally protected activity, and their action fails.
B. Minimal Evidence of Speech
Even if the Court were to generously ignore the Plaintiff’s disregard for Local Rule 56.1, it would not
help. The only place Plaintiff makes any hint at what speech triggered the alleged retaliation is in one phrase,
consisting of four words: “running for Town President.” Pls.’s Mem., 5. That is the sum total of Plaintiff’s
evidence of what speech is at issue here. First, the Court notes that based on those four words alone,
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STATEMENT
Gustavo’s and Adalberto’s actions must fail, because they were not the candidate and thus did not engage in
the protected activity of “running for Town President.” As this Court noted in its ruling on the motion to
dismiss, the family members of Ramiro could conceivably be covered under a retaliation claim if they could
show they were retaliated for speech of their own, such as “standing by” Ramiro. Gonzalez et al. v. Town of
Cicero, et al., No. 06-3961, 2008 U.S. Dist. LEXIS 12800 at *10 (N.D. Ill. Feb. 21, 2008). That has not been
done.
The Court also noted in the ruling on the motion to dismiss that cases have found First Amendment
retaliation against a party solely based on the speech and activity of a spouse because it violated marital
association rights, so for the moment, the Court will assume, without finding, that Saucedo and possibly the
Trust (controlled jointly by Ramiro and Saucedo) make it past this evidentiary hurdle.
C. No Evidence of Causation, Conspiracy
Even if those three Plaintiffs remain, there is simply no evidence of causation in this case, the last
element needed for First Amendment retaliation. No depositions of any Defendants are offered. The only
thread upon which Plaintiffs can claim causation is that shortly after the election, bad things started
happening to them. “[T]iming alone is insufficient to establish a genuine issue of material fact to support a
retaliation claim.” Springer v. Durflinger, 518 F.3d 479, 485 (7th Cir. 2008). Plaintiffs claim that a town
official at first told Gustavo that a permit for his property would be issued, but then backtracked, saying that
the file was in the President’s office and the legal department and he could not help them. Plaintiffs offer no
timeframe for this conversation, so it is difficult to establish the turnaround was retaliation. Even assuming
the timing supports retaliation, there is just no evidence that Defendants’ motivation for issuing the stop-work
orders and permit denials was Plaintiff’s speech. “Speculation is not sufficient to overcome summary
judgment.” Trigillo v. Snyder, No. 03-3241, 2006 U.S. Dist LEXIS 28598, at *35 (C.D. Ill. May 10, 2006).
With no evidence that speech was the motivation for Defendants’ actions, there is also no evidence of a
conspiracy to deny Plaintiffs’ Constitutional rights. Both actions fail.
D. Defendants’ Motion for Attorney’s Fees and Costs
Defendants request reasonable attorney’s fees and costs, arguing that Plaintiffs’ lack of evidence
makes this lawsuit frivolous under Federal Rule of Civil Procedure 11. They cite two cases in support of
their argument: Cuna Mutual Insurance Society. v. Office and Professional Employees International Union,
Local 39, 443 F.3d 556, 560 (7th Cir. 2006) and National Wrecking Co. International Brotherhood of
Teamsters, Local 731, 990 F.2d 957, 963 (7th Cir. 1993). Defendants offer no further argument, and the
Court finds these cases inapposite. In one of those cases, sanctions were not imposed. In the other, the Court
ruled that the law on challenging arbitration decisions was so settled that Plaintiff’s arguments were frivolous.
Here, Plaintiffs survived a motion to dismiss and while their summary judgment efforts were hardly stellar,
Gustavo’s testimony that a Cicero employee did an about-face after the permit matter went to the president
and the legal department does at least make Plaintiffs’ claims colorable in this instance. The motion is
denied.
IV. CONCLUSION
The Defendants’ motion for summary judgment is granted. The Defendants’ motion to strike
Plaintiffs’ denial of their statements of fact is granted, save for the answer to denial D28. See ECF No. 194-3,
¶D28. The Defendants’ motion for attorney’s fees and costs are denied.

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