United States of America v. Estate of Elizabeth Cole et al

Filing 16

MOTION by Plaintiff United States of America for judgment on the Pleadings Pursuant to Fed R. Civ. P. 12 (Attachments: # 1 Affidavit)(Goodell, Kimberly)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
) Case No.13-cv-1737
)
WILLIAM P. BUTCHER AS SPECIAL
)
REPRESENTATIVE OF THE ESTATE OF
) Judge: Edmond E. Chang
ELIZABETH COLE; UNKNOWN HEIRS
)
AND LEGATEES ELIZABETH COLE;
)
STONEGATE CONDOMINIUM ASSOCIATION; )
RICHARD COLE; UNKNOWN OWNERS
) Designated Magistrate: Arlander
AND NON-RECORD CLAIMANTS,
)
Keys
)
Defendants.
)
UNITED STATES OF AMERICA’S
MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO FED R. CIV. P. 12
The United States, by its attorney Potestivo & Associates, P.C., requests that entry of
judgment on the pleadings be entered in favor of the United States pursuant to FED. R. CIV. P
12(C) and against William P. Butcher as Special Representative for the Estates of Elizabeth Cole
and in support submits the following:
1.

The United States moves for entry of judgment on the pleadings pursuant to Federal Rule

of Civil Procedure Rule 12(c) because the pleadings show that the United States is entitled to
judgment. Fed. R. Civ. P 12(c).
2.

Rule 12(c) of the Federal Rules of Civil Procedure allows for judgment on the pleadings

when, while viewing the facts in the light most favorable to the non-moving party, it is beyond
doubt that the non-moving party cannot plead facts in support of her cause of action. United
1

States v. Wood, 925 F.2d 1580 (7th Cir. 1991). In addition, “[a] party is entitled to judgment on
the pleadings only if that party ‘clearly establishes that no material issue of fact remains to be
resolved and that he or she is entitled to judgment as a matter of law.’” Grossman v. Minnesota
Mut. Life Ins. Co., 842 F. Supp. 308, 309 (N.D. Ill. 1993), citing National Fidelity Life Ins. Co.
v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1987).
3.

In the instant matter, William P. Butcher was appointed as Special Representative of the

Estate of Elizabeth Cole April 30, 2013. See Dkt. at 8.
4.

Mr. Butcher filed his Report of Special Representative on June 13, 2013. See Dkt. at 11.

Mr. Butcher’s Report of the Estate of Elizabeth Cole states that he does “not believe there are
any viable defenses for this action.” Id. at ¶ 3(e). The extent of the liability regarding the amount
of damages was set forth in the complaint’s allegation of the amounts due, and unpaid, based on
the Affidavit of Account attached as Exhibit F to the complaint. The sworn statement is a part of
the complaint. Schnell v. City of Chicago, 407 F.2d 1084, 1085 (7th Cir.1969) (“affidavits and
exhibits attached to the complaint are a part thereof for all purposes.”). Once the United States
makes out its prima facie case of a debt owing and unpaid, the burden shifts to defendant to
contest the case with something of substance. Cf. United States v. Petroff-Kline, 557 F.3d 285,
290 (6th Cir. 2009) (government’s certificate of indebtedness establishes a prima facie case of
indebtedness; then “defendant has the burden of proving the nonexistence, extinguishment or
variance in payment of the obligation”).

As stated in the Special Representative’s Report, no

viable defense to the instant action has been presented.

2

WHEREFORE, pursuant to Fed R. Civ. P. 12(c), the United States of America moves for
entry of judgment on the pleadings in favor of the United States and against defendant, William
P. Butcher as Special Representative for the Estate of Elizabeth Cole in the amount of
$114,975.43 as set forth in the attached affidavit to prove up damages.
Respectfully submitted,
GARY S. SHAPIRO
United States Attorney
By: s/Kimberly J. Goodell
KIMBERLY J. GOODELL
Attorney for Plaintiff
223 W Jackson Blvd., Suite 610
Chicago, Illinois 60606
[phone]
[e-mail]

3

CERTIFICATE OF SERVICE
I, Kimberly J. Goodell, certify that a true and correct copy of the foregoing Motion for
Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12 was served upon counsel of record,
if any, through operation of the Court’s Case Management/Electronic Case Files system on July
18, 2013, and on the following non-ECF filers by first class mailing:
See attached Service List

s/Kimberly J. Goodell
KIMBERLY J. GOODELL
Attorney for Plaintiff
223 W Jackson Blvd., Suite 610
Chicago, Illinois 60606
[phone]
[e-mail]

4

Service List

William P. Butcher as Special Representative
of the Estate of Elizabeth Cole
2044 Ridge Road
Homewood, IL 60430
Richard Cole
844 Tulip Avenue
Evansville, IN 47711
Unknown Heirs and Legatees of Elizabeth Cole
9540 South Mayfield #212,
Oak Lawn, IL 60453
Stonegate Condominium Association
c/o Erickson Management
13301 S. Ridgeland Ave., Suite B
Palos Heights, IL 60463
Unknown Owners and Non-Record Claimants
9540 South Mayfield #212,
Oak Lawn, IL 60453

s/Kimberly J. Goodell
KIMBERLY J. GOODELL
Attorney for Plaintiff
223 W Jackson Blvd., Suite 610
Chicago, Illinois 60606
[phone]
[e-mail]

5