Sweis v. Travelers Casualty Insurance Company of America

Filing 50

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 2/24/2014. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NICHOLAS SWEIS, as co-trustee of the
Sweis Living Trust,
Plaintiff,
v.
TRAVELERS CASUALTY INSURANCE
COMPANY OF AMERICA; OVERMAN
AGENCY, LLC; LARRY D. BROWN;
and TERRI L. BROWN,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 13 C 7175

MEMORANDUM OPINION AND ORDER
Defendants Overman Agency, LLC, Larry Brown and Terri Brown (collectively
"Overman Defendants") have filed a motion for summary judgment to which plaintiff Nicholas
Sweis ("Sweis") as co-trustee of the Sweis Living Trust has just filed his response.
Unfortunately neither side's counsel has exhibited an understanding of the requirements for
tendering or responding to such Fed. R. Civ. P. ("Rule") 56 motions, and the current motion is
denied.
As for the Overman Defendants, their "Statement of Material Facts About Which There
Is No Genuine Issue" (a critical component of any Rule 56 motion, as called for by this District
Court's LR 56.1) has not complied with the plain directives as to evidentiary submissions set out
in Rule 56(c)(1)(A) and (c)(4). In that respect, it is one thing to cite to the allegations in Sweis'
Complaint, for those are admissions on his part. But by contrast, the following key component

of Overman Defendants' motion set out in its Statement ¶ 10 (emphasis added) has nothing to
back it up other than Overman Defendants' counsel's ipse dixit:
In or around April 2011, At SWEIS' request, OVERMAN added liability
coverage to the Policy for commercial property located at 526 E. 47th street in
Chicago, Illinois (the "Chicago Property"), which SWEIS advised OVERMAN
serves both as a storage facility and an office space, with SWEIS maintaining an
operating officer there with several employees.
On the other side of the coin, Sweis' response to Oberman Defendants' statement,
required by LR 56.1(b)(3), reflects an equally misguided approach to Rule 56. Thus his
Response ¶¶ 6, 7 and 12 through 17 reflect a belief that it is somehow sufficient for him to parrot
the Rule 8(b)(5) disclaimer -- a disclaimer that is permitted for pleading purposes but is not at all
available to put into issue any assertion by a Rule 56 movant that does conform to Rules 56(c)(1)
and (c)(4). Because of those impermissible nonresponses, it would appear that all of Overman
Defendants' statements that have been met with such an attempted disclaimer -- and not with a
challenge to their substantive consideration -- could be treated as having also been admitted. But
that is not a certainty, and further input is needed from the parties' counsel.
As for the earlier-mentioned Statement ¶ 10, here is the Sweis response, and it is puzzling
indeed:
Plaintiff admits the allegations in this paragraph, except plaintiff states the
individuals who had access to the Chicago Property were subcontractors. Plaintiff
further denies that Exhibit B to the Overman Memorandum states the Chicago
Property was being used as an office space, or housing a working environment for
employees, as that Exhibit states only that the property was used for "storage."
If that is read literally, Sweis has admitted the earlier-emphasized portion of Statement ¶ 10.
And if that is the case, Overman Defendants' Mem. Ex. F (an e-mail exchange between Larry
Brown and Dana Forsberg, an Account Executive of co-defendant Travelers Casualty Insurance
Company of America) and Ex. G (an e-mail from Larry Brown to Sweis) would undercut Sweis'
-2-

lawsuit considerably. But once again the unsatisfactory nature of both sides' submissions
precludes a definitive ruling.
Because both sides' counsel have botched their Rule 56 and LR 56.1 submissions, the
only appropriate ruling at this point is the denial of Overman Defendants' motion without
prejudice, and this Court so orders. This ruling should not be misunderstood as an ultimate
determination on any aspect of this litigation.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: February 24, 2014

-3-