Jorden
Filing
106
MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 10/11/2011.Mailed notice.(jlj)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEFFREY B. JORDEN,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
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09 C 6814
10 C 3144
Judge Feinerman
MEMORANDUM OPINION AND ORDER
Jeffrey Jorden, a driver employed by Eagle Express Lines, Inc., brought this lawsuit
against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 et seq.,
alleging that he suffered injuries while making a delivery to the Glenview Post Office in
Glenview, Illinois, due to negligence by the United States Postal Service. The United States has
moved for summary judgment, contending that it is immune from tort liability because Jorden is
a “borrowed employee” of the Postal Service under the Illinois Workers’ Compensation Act
(“IWCA”), 820 ILCS 305/1 et seq. The motion is denied for two separate reasons.
The first reason is that the United States has violated Local Rule 56.1. To support its
view of the facts, the United States’ initial brief cites to raw record materials rather than to its
Local Rule 56.1(a) statement. It has long been held that this violates Local Rule 56.1. See
Daoust v. Abbott Labs., 2006 WL 2711844, at *4 (N.D. Ill. Sept. 19, 2006) (“Citing directly to
the record in the memorandum statement of facts, as [the movant] does here, rather than citing to
its 56.1(a)(3) statement, negates the purpose of the summary judgment exercise.”); Alvi v. Metro.
Water Reclamation Dist. of Greater Chi., 2006 WL 1762032, at *2 (N.D. Ill. June 23, 2006)
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(“Mr. Alvi’s response memorandum is written without ever referencing the Rule 56.1 factual
filings, and instead improperly cites to raw discovery record material. This citation practice is
materially improper.”); Madaffari v. Metrocall Cos. Grp. Policy GL, 2005 WL 1458071, at *1
(N.D. Ill. June 15, 2005) (“when citing to the record in their legal memoranda, parties are
required to cite to the numbered paragraphs of their Local Rule 56.1 statements and not to the
underlying parts of the record”); Ciesielski v. Hooters of Am., Inc., 2004 WL 1699020, at *1
(N.D. Ill. July 28, 2004) (“In their summary judgment briefs, both parties cited directly to the
record rather than to their Rule 56.1 statements. This blatant violation of the Local Rules is
improper.”); Denari v. Genesis Ins. Co., 2003 WL 22964371, at *1 n.3 (N.D. Ill. Dec. 15, 2003)
(“The Court further notes that in his memorandum of law, Denari cites directly to the record
rather than to his Rule 56.1 statement. This is improper.”); Malec v. Sanford, 191 F.R.D. 581,
586 (N.D. Ill. 2000) (“[c]itations in the fact section should be to the 56.1(a) or (b) statement of
facts only, … [not] directly to pieces of the record”). This violation of Local Rule 56.1, standing
alone, warrants the denial of summary judgment. See Cichon v. Exelon Generating Co., 401
F.3d 803, 809 (7th Cir. 2005) (“[w]e have ... repeatedly held that a district court is entitled to
expect strict compliance with [Local] Rule 56.1”) (internal quotation marks omitted, brackets in
original); Sledge v. Bellwood Sch. Dist. 88, 2011 WL 2457920, at *2 (N.D. Ill. June 17, 2011)
(denying summary judgment motion due to movant’s violation of Local Rule 56.1); Eva’s Bridal
Ltd. v. Halanick Enters., Inc., 2010 WL 2035720, at *5 (N.D. Ill. May 19, 2010) (“Failure to
comply with Local Rule 56.1 is grounds for denial of a summary judgment motion.”).
Second, putting aside Local Rule 56.1, summary judgment is denied on the merits based
on the record materials tendered by the parties. The FTCA allows for damage suits against the
United States for personal injury or property damage “caused by the negligent or wrongful act or
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omission” of any federal government employee “while acting within the scope of his office or
employment, under circumstances where the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1). In an FTCA suit, “the United States shall be entitled to assert any defense
based upon judicial or legislative immunity which otherwise would have been available to the
employee of the United States whose act or omission gave rise to the claim.” 28 U.S.C. § 2674.
In Illinois, where the Postal Service’s alleged negligence occurred, the IWCA “provides the
exclusive recovery against employers and ‘borrowing employers’ for workers injured in the
course of their employment.” Luna v. United States, 454 F.3d 631, 632 (7th Cir. 2006). Because
the remedy provided by the IWCA is exclusive, an employee’s employer and borrowing
employer (if any) are immune from tort liability arising from such an injury. See id. at 634;
Belluomini v. United States, 64 F.3d 299, 302 (7th Cir. 1995).
The United States’ summary judgment motion turns on whether the Postal Service was
the borrowing employer of Jorden within the meaning of the IWCA. There are two alternative
tests for determining whether a particular relationship constitutes borrowed employment under
the IWCA: the “control test” and the “statutory test.” The United States concedes that it cannot
satisfy the control test. To satisfy the statutory test, the United States must demonstrate that:
“(1) a substantial portion of the alleged loaning employer’s business must consist of furnishing
employees to do the work of other employers; (2) the loaning employer must pay the employee’s
wages even though that employee is working for another employer; and (3) the borrowing
employer must be operating under the [IWCA].” Belluomini, 64 F.3d at 302; see also Luna, 454
F.3d at 637.
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Analysis here may be limited to the first element of the test. That element was satisfied
in Belluomini, where the United States claimed to be the borrowing employer of a court security
officer employed by a private contractor called General Security Services Corporation
(“GSSC”). 64 F.3d at 302. GSSC’s vice president testified at his deposition that “a substantial
portion of [GSSC]’s business involves supplying security personnel to the government.” Id. at
302-03 (emphasis added, brackets in original). This “unrebutted” evidence, the Seventh Circuit
held, “establishes that a substantial portion of GSSC’s business consists of furnishing employees
to other employers.” Id. at 303; see also id. at 302 (noting that “[t]he Marshals Service hired
GSSC to supply Court Security Officers (CSOs) to assist in the protection of the federal
judiciary”). The first element of the statutory test also was satisfied in Luna, where the United
States claimed to be the borrowing employer of an instructor employed by a private contractor
called Resource Consultants, Inc. (“RCI”). The evidence showed that RCI was “in the business
of supplying employees to governmental agencies,” with Luna having been “assigned to the
Great Lakes Naval Base as part of a team of employees RCI provided to the Navy.” 454 F.3d at
633 (emphasis added). Given this evidence, the Seventh Circuit found it “undisputed that a
substantial part of [RCI’s] business involved hiring, procuring, or furnishing employees to do
jobs for” other employers. Id. at 637.
Unlike the circumstances presented in Belluomini and Luna, the summary judgment
record here, viewed with all genuine factual disputes resolved in Jorden’s favor, indicates that
Eagle Express was in the business of furnishing inter-post-office transportation services, not
employees, to the Postal Service. Eagle Express’ relationship with the Postal Service is
governed by a contract under which Eagle Express agreed to haul mail shipments between post
offices. Doc. 81. The contract describes Eagle Express’ duties as “carrying and/or handling the
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United States Mail.” Id. at 2. The contract’s terms and conditions, set forth on a form drafted by
the Postal Service, state that “[t]his is a fixed price contract for highway transportation service.”
Id. at 49, ¶ 2.1 (emphasis added). The terms and conditions refer to the “supplier,” Eagle
Express, as the “corporation that will be providing the service advertised in this solicitation.” Id.
at 51, ¶ 2.2.1 (emphasis added). The contract further provides that Eagle Express drivers need
not wear driver uniforms and are to be issued a “Non Postal Service Contractor Employee”
identification badge. Id. at 34, 36.
These contract provisions defeat the United States’ submission (Doc. 99 at 6-8) that
Eagle Express, indisputably and as a matter of law, furnished the Postal Service with employees
rather than with inter-post-office mail transportation services. The point is confirmed by the
United States’ own Local Rule 56.1(a) statement, which asserts that “Eagle Express is one of the
contractors who has been awarded multiple HCR contracts with the Postal Service to deliver
mail between postal facilities,” that “Eagle Express’ primary business is transporting mail for
the Postal Service,” and that “Eagle Express employed driver Jeffrey Jorden who was assigned
to perform the mail delivery services required by [the] contract.” Doc. 73 at ¶¶ 6-7, 13
(emphasis added). The deposition testimony of two Postal Service contracting officers further
supports the proposition that Eagle Express furnished the Postal Service with transportation
services, not employees. One of the officers testified that “the amount of drivers can vary
throughout the term of the contact, so it’s the service we’re contracting for,” and that he
“do[es]n’t look at Eagle as an employer who provides employees or personnel; … [but rather] as
somebody that provides a service to the government for a price.” Doc. 102-1 at 19. The other
officer agreed that the Postal Service was not concerned with “how many … employees it took
… as long as the routes got serviced per the contract,” Doc. 102-4 at 8, which is inconsistent
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with the notion that Eagle Express provided employees rather than services. And while the
discussion could stop here, that notion is further undermined by the fact that Jorden was not
assigned exclusively to the Postal Service account, but hauled freight for other Eagle Express
customers as well. Doc. 79-3 at 7-8.
Because the record precludes the United States from indisputably satisfying the first
element of the statutory test—that “a substantial portion of” Eagle Express’ “business …
consist[s] of furnishing employees to do the work of other employers,” Belluomini, 64 F.3d at
302—and because the United States does not attempt to satisfy the control test, the United States
is not entitled to summary judgment on the ground that it was Jorden’s borrowing employer
under the IWCA and thus entitled to tort immunity under the ICWA. Accordingly, the United
States’ summary judgment motion is denied on the merits as well due to its violation of Local
Rule 56.1.
October 11, 2011
United States District Judge
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