United States of America v. Derrick B. Tartt

Filing 22

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 5/16/2013:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES,
Plaintiff,
v.
DERRICK B. TARTT,
Defendant.

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Case No. 12 C 1416
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
Mr. Tartt has defaulted on two Department of Education student loans. The United States
has sued to recover what he owes, which is more than $775,000. Mr. Tartt’s response has been to
obfuscate his indebtedness with the following counterclaim:
. . . the defendant agrees there is indebtedness. The indebtedness is to the defendant
and demand [sic] judgment against the United States of America for the follows
[sic]:
a. For plaintiff’s conspiracy to deny benefits of employment, torture,
discrimination, violations of the constitution, fraudulent representation, bias
judiciary to cause loss of liberty, property and monetary gains, judgment in
the amount of not less than $50,000,000 but not greater than $100,000,000.
b. Any additional reliefs [sic] the court deem [sic] appropriate against
Defendant the United States of America, the conspirator against the
Plaintiff, its own citizen.
(Dkt. # 8). The government has moved for summary judgment on its claim and moved to dismiss
Mr. Tartt’s counterclaim for lack of subject matter jurisdiction.

I.
BACKGROUND
A.
Summary Judgment Under Local Rule 56.1
As always, the facts underlying this summary judgment proceeding are drawn from the
parties’ Local Rule 56.1 submissions. “For litigants appearing in the Northern District of Illinois,
the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for
summary judgment.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, –, (7th Cir. 2012). The party
opposing summary judgment must respond to the movant's statement of proposed material facts, and
that response must contain both “a response to each numbered paragraph in the moving party's
statement,” Local Rule 56.1(b)(3)(B), and a separate statement “consisting of short numbered
paragraphs, of any additional facts that require the denial of summary judgment,” Local Rule
56.1(b)(3)(C); Sojka, 686 F.3d at —; Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.
2008). Each response, and each asserted fact, must be supported with a reference to the record.
Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); F.T.C. v.
Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005).
The district court is entitled to expect strict compliance with the rule. Shaffer v. American
Medical Ass'n, 662 F.3d 439, 442 (7th Cir. 2011); Benuzzi v. Board of Educ. of City of Chicago, 647
F.3d 652, 654 (7th Cir. 2011). Responses and facts that are not set out and appropriately supported
in an opponent’s Rule 56.1 response will not be considered, see Shaffer, 662 F.3d at 442 (court need
not consider any fact not contained in the parties' Rule 56.1 statements); Bay Area Business
Council., 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission).
and the movant’s version of the facts – if compliant with the rule – will be deemed admitted.

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Local Rule 56.1(b)(3)(C); Rao v. BP Products North America, Inc., 589 F.3d 389, 393 (7th Cir.
2009); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008); Cracco, 559 F.3d at 632. Mr.
Tartt disputes a few of the government’s facts, but he has not cited a single piece of evidence to
support his contentions. As such, all the government’s facts are deemed admitted to the extent they
are supported by the record.
B.
Facts
The record includes copies of two promissory notes Mr. Tartt executed evincing the loans
at issue. One is dated July 23, 1997, and is in the amount of $325,125.56. (the “1997 Loan”).
(Plaintiff’s Local Rule 56.1 Statement (“Pl.St.”), ¶¶ 5-6 (Ex. A)). The other is dated April 30, 1995,
and is in the amount of $45, 863.61. (The “1995 Loan”). (Pl.St., ¶ 9 (Ex. C)). In his answer to the
United States’ complaint, Mr. Tartt agreed that he executed the two notes. (Dkt. # 8, Count I, ¶ 3;
Mr. Tartt’s Response (“Def.Rsp.”), ¶ 5). Mr. Tartt disagrees that the copies in the record are true
and correct copies of the notes, but offers no support for his position. (Def.Rsp., ¶¶ 6, 9).
The record also includes sworn Certificates of Indebtedness from the Department of
Education as to the amounts paid, interest accrued, and amount owed as a result. (Pl.St., ¶¶ 7, 10
(Exs. B, D)). As for the 1997 Loan, the total due as of April 15, 2011, was $678,503.22, and $57.75
in interest has accrued daily thereafter.

(Pl.St., ¶ 7 (Ex. B)). Mr. Tartt disagrees that this is

accurate but, again, offers no support for his stance. (Def.Rsp., ¶ 7). The other certificate refers to
a note dated April 30, 1999, rather that 1995 as the year on the note reads. (Pl.St., ¶ 7 (Ex. B)).
This certificate states that the total due under the April 30, 1999 Loan, as of April 15, 2011, was
$77,022.12 and that $5.01 in interest has accrued daily thereafter. (Pl.St., ¶ 7 (Ex. B)). Mr. Tartt,
not surprisingly, disagrees with the calculations given the different dates. He contends the note was
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signed in 1999 as opposed to 1995. He explains:
In 1995 Defendant was on active duty, both loans were secure after the Hardship
Discharge from active duty to the US Army Reserves in October 1996. The address
in 1995 was Radcliff KY. To my knowledge the William D. Ford Federal Loan
Program did not exist in 1995. The loans were to be paid in ten years and it has been
over eleven years since payment began after 6481 was dismissed. Could this be part
of the conspiracy to lose $775,000 and avoid defendant receiving $50,000,000 or
more? Conspiracy?
(Def.Rsp., ¶ 11). It should come as no surprise that Mr. Tartt provides no support for any of this;
not his time in the Reserves, not his discharge, not his address in 1995, and certainly not his
$50,000,000
conspiracy. Still, the United States concedes that Mr. Tartt is correct that the note was signed in
1999. The United States claims it erred in its statement of facts when it referred to the promissory
note as being dated 1995.1
II.
ANALYSIS
A.
Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact.” Fed.R.Civ.P. 56(a). Once “a properly supported motion for summary
judgment is made,” the nonmoving party bears the burden to “set forth specific facts showing that
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
(internal quotation marks and citation omitted); Seng-Tiong, 648 F.3d at 496-97. Notably, any party
asserting that a fact is or is not genuinely disputed must cite “to particular parts of materials in the
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Although the date on the note looks more like a 99 than a 95 – the two digits on the note do not look
similar (Ex. C) – it is clearly the United States’ error as the additional four years of interest would run to the
detriment of Mr. Tartt and to the advantage of the United States.

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record,” or show that “an adverse party cannot produce admissible evidence to support the fact.”
Fed.R.Civ.P. 56(c)(1). Thus, “a party opposing a properly supported motion for summary judgment
may not rest upon mere allegation or denials of his pleading.” Anderson, 477 U.S. at 256; SengTiong, 648 F.3d at 497. Additionally, a “court need consider only the cited materials.” Fed.R.Civ.P.
56(c)(3).
B.
The Government is Entitled to Summary Judgment on its Student Loan Claim
To recover on a promissory note the government must first make a prima facie showing that
(1) the defendant signed it, (2) the government is the present owner or holder and (3) the note is in
default. United States v. Petroff-Kline, 557 F.3d 285, 290 (6th Cir. 2009); United States v. Lawrence,
276 F.3d 193, 197 (5th Cir. 2001); United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). A
sworn certificate of indebtedness suffices to make out a prima facie case that the note is in default.
Petroff-Kline, 557 F.3d at 290. The government has done this here. Once such a prima facie case
is established, defendant has the burden of proving the nonexistence, extinguishment or variance in
payment of the obligation. Petroff-Kline, 557 F.3d at 290. Given the fact that Mr. Tartt has failed
to properly contest any of the government’s asserted facts and has not submitted any evidence to the
court that in any way casts doubt on his indebtedness and failure to pay, summary judgment on the
two notes is warranted.2

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Mr. Tartt misapprehends the motion for summary judgment as one to enter a default judgment. It’s
not, of course. Mr. Tartt may have defaulted on his loan, but he did not default in his efforts to defend
himself against the United States’ lawsuit. He has been an active participant.

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C.
Mr. Tartt’s Counterclaim Must Be Dismissed
While Mr. Tartt did not cite any evidence in his Local Rule 56.1 response, he did attach some
to his response memorandum. It has nothing to do with his default on his student loan, however, and
is probably what he considers the basis for his “conspiracy” claim. It consists of a series of emails
and letters from the summer of 2012, in which Mr. Tartt sought to retain counsel to overturn a ruling
in a previous lawsuit, which proceeded as far as the Seventh Circuit, where he lost his appeal. A bit
of background would be helpful here. In 1978, while a freshman at Alcorn State University, Mr.
Tartt enrolled in the Army ROTC program. As a result, he committed to serving six years in the
Army, including three years of active duty. When he graduated from college, Mr. Tartt sought and
received a delay in his active duty obligation while he attended medical school at the University of
Wisconsin. Thereafter, he sought yearly deferments from 1987 through 1992 until 1993, when the
Army ordered him to active duty. He challenged that in federal court with a petition for habeas
corpus, but ultimately failed and had to report. See Tartt v. Secretary of the Army, 1994 WL 75121,
*1 (N.D.Ill. 1994); Tartt v. Northwest Community Hosp., 2004 WL 2254041, *1 (N.D.Ill. 2004).
Just prior to that, in July 1993, Mr. Tartt signed an employment contract with Northwest
Suburban Anesthesiologists (“NSA”). He worked for about a year until he took a leave of absence
to comply with his military service obligations in July 1994. While he was in the service, he
practiced anesthesiology at Northwest Community Hospital (“NCH”) in violation of his contract
with NSA. He later admitted as much in a revised contract with NSA, which he signed in 1997 –
he also agreed to repay the $18,000 he misappropriated. NSA eventually terminated him in 2000,
and Mr. Tartt sued them for discrimination in violation of the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), and Title VII. Northwest Community Hosp., 2004
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WL 2254041, *1. His case was eventually dismissed for failure to prosecute and he ultimately lost
on appeal. Tartt v. Northwest Community Hosp., 453 F.3d 817, 823 (7th Cir. 2006). As more than
one attorney explained to him in July and August of 2012, he cannot reopen that case now, six years
after the fact. And, in any event, it has nothing to do with his student loan.3
The “conspiracy” he discusses in his response memorandum is a far cry from the “torture”
or “loss of liberty” or denial of “benefit of employment” he raises his complaint. Seemingly, the
upshot is that Mr. Tartt couldn’t get an attorney to take up his quest to reopen his case against NSA
and NCH. It’s hard to fathom what that has to do with the government or Mr. Tartt’s student loan.
Moreover, it wasn’t a conspiracy that made it difficult for Mr. Tartt to find a willingly attorney – it
was res judicata.4
Clearly, Mr. Tartt’s claim that the United States conspired to torture him, deny him
employment, and take away his liberty, and, as he informs us in his response brief “use[]

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Mr. Tartt also apparently has a beef with Judge Norgle, who ruled against him in his suit against
NSA and NCH (Defendant’s Memorandum in Support of Denial of Plaintiff’s Motion, at 2-3) and indicates
he filed a judicial misconduct complaint against him that was handled by Judge Easterbrook. Not
surprisingly, Judge Easterbrook found no misconduct but, according to Mr. Tartt – he does not attach Judge
Easterbrook’s findings – called into question the competence of Mr. Tartt’s attorney.
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The only other evidence Mr. Tartt submits has to do with a Home Affordable Modification Program
Loan he applied for with Harris Bank. He was denied because he was not using his property as his primary
residence and his monthly housing expenses were less than 31% of his gross monthly income. (Dkt. # 20;
Defendant’s Request to Submit Additional Evidence). Mr. Tartt claims that the denial was wrong based on
the Supreme Court of Illinois’s ruling that Rahm Emmanuel was a resident of Chicago for the purposes of
running for the office of Mayor of the City of Chicago. But, of course, the residency requirements for a
candidacy have nothing to do with the loan program’s requirement that an applicant live at the property as
his primary residence. One might ask what any of this has to do with this case, but it is apparently part of
Mr. Tartt’s conspiracy claim – he alleges that the Office of the Comptroller of the Currency was in cahoots
with Harris Bank. It’s merely a claim, however, and because this is a summary judgment proceeding, that’s
not enough. Moreover, the defendant himself has stated in open court that he has been living and working
in Florida – not at his property here in Chicago – and he was served in Florida in this case. In other words,
there is nothing to suggest the denial was wrong, even in the implausible event the Office of the Comptroller
of the Currency had a hand in it.

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enhancement techniques on its own citizens.” (Defendant’s Memorandum in Support of Denial of
Plaintiff’s Motion, at 14 fn.) is implausible on its face. A complaint – or counterclaim – must be
plausible on its face, meaning that the plaintiff or counterclaimant must have pled “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007); Bell Atlantic Corp. V. Twombly, 550 U.S. 544,
556 (2007). A complaint need not contain detailed factual allegations to meet that standard, but
must go beyond mere labels and conclusions, and must “be enough to raise a right to relief above
the speculative level.” G & S Holdings LLC v. Continental Cas. Co., 697 F.3d 534, 537-38 (7th Cir.
2012)(quoting Twombly, 550 U.S. at 555). Mr. Tartt’s counterclaim does nothing of the kind, and
his response brief only makes things worse.
But, no matter. In his “conspiracy” counterclaim, Mr. Tartt seeks damages in the amount
of $50 to $100 million. The government argues that this court has no jurisdiction over the claim
because it far exceeds $10,000. Claims against the United States exceeding $10,000 must be
brought in the United States Court of Federal Claims. On-Site Screening, Inc. v. United States, 687
F.3d 896, 900 (7th Cir. 2012); Pershing Div. of Donaldson, Lufkin & Jenrette Securities Corp. v.
United States, 22 F.3d 741, 743 (7th Cir. 1994); Western Securities Co., a subsidiary of Universal
Mortg. Corp. v. Derwinski, 937 F.2d 1276, 1279 (7th Cir. 1991); United States v. Lindberg Corp.,
882 F.2d 1158, 1164 (7th Cir. 1989)(counterclaim). Accordingly, the counterclaim must be
dismissed for lack of subject matter jurisdiction.
Finally, Mr. Tartt also seems to suggest he was denied his right to counsel in this case. But
there is no constitutional or statutory right to counsel in federal civil cases. Jones v. Skalski, – F.3d
–, –, 2012 WL 5278611, *3 (7th Cir. 2012); Guajardo-Palma v. Martinson, 622 F.3d 801, 803 (7th

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Cir. 2010); Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). If he were indigent, the court
would have discretion to appoint counsel under 28 U.S.C. § 1915(e)(1), Romanelli, 615 F.3d at 851,
but Mr. Tartt states that he is not indigent. (Defendant’s Memorandum in Support of Denial of
Plaintiff’s Motion, at 4). Moreover, this is an exceedingly simple debt collection case. See Jones,
2012 WL 5278611, *3 (court did not abuse discretion in failing to appoint counsel for indigent party
given suits’s lack of factual or legal complexity). His right to counsel claim fails.
CONCLUSION
The plaintiff’s motion for summary judgment [# 13] is GRANTED. The defendant’s
counterclaim is dismissed for lack of subject matter jurisdiction. The plaintiff shall provide a final
calculation of the amount due on the two loans as soon as possible so that final judgment may be
entered.

ENTERED:____________________________________
UNITED STATES MAGISTRATE JUDGE
DATE: 5/16/13

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