Chessie Logistics Company LLC v. Krinos Foods Inc et al
Filing
181
MEMORANDUM Opinion and Order. The motion of Chessie Logistics Company LLC for summary judgment 161 is denied. The motion of Chessie Logistics Company LLC to supplement exhibits 172 is denied as moot. The motion of Krinos Holdings, Inc.; Krinos Fo ods LLC; Krinos Realty LLC; and 4545 James Place Realty, LLC for summary judgment 158 is granted. On plaintiff's claims, judgment will be entered in defendants' favor and against plaintiff. Given 4545 James Place's statement of its intentions regarding the counterclaim, it is directed to file an appropriate motion by December 9, 2016. Signed by the Honorable Jorge L. Alonso on 12/2/2016. Notice mailed by judge's staff (ntf, ) Modified on 12/2/2016 (ntf, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHESSIE LOGISTICS COMPANY LLC,
)
)
Plaintiff,
)
)
v.
)
)
KRINOS HOLDINGS, INC.,
)
KRINOS FOODS LLC,
)
KRINOS REALTY LLC, and
)
4545 JAMES PLACE REALTY, LLC,
)
)
Defendants.
)
_______________________________________
)
4545 JAMES PLACE REALTY, LLC,
)
)
Counterplaintiff,
)
)
v.
)
)
CHESSIE LOGISTICS COMPANY LLC,
)
)
Counterdefendant.
)
No. 13 C 8864
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Before the Court are the parties’ cross-motions for summary judgment on plaintiff’s
claims and plaintiff/counterdefendant’s motion to supplement its exhibits. For the following
reasons,
defendants’/counterplaintiffs’
motion
for
summary
judgment
is
granted;
plaintiff/counterdefendant’s motion for summary judgment is denied; and plaintiff/
counterdefendant’s motion to supplement its exhibits is denied as moot.
BACKGROUND
Plaintiff/counterdefendant, Chessie Logistics Company LLC (“Chessie” or “plaintiff”),
brings this action for trespass, negligence, and violation of 49 U.S.C. § 10903 against
defendants, 4545 James Place Realty, LLC (“4545 James Place”); Krinos Holdings, Inc.; Krinos
Foods LLC; and Krinos Realty LLC (the “Krinos Entities” or “defendants”). Chessie is a
common carrier by railroad that claims to own in fee simple lead railroad tracks (the “Lead
Tracks”) in an industrial park in Melrose Park, Illinois that are adjacent to, as well as easements
for the use of switches and spur tracks (the “Spur Tracks”)1 that cross over, property owned by
4545 James Place where one or more of the Krinos Entities operate an industrial facility (the
“4545 Property”). Chessie alleges that defendants trespassed on, and negligently damaged, the
Spur Tracks “by performing construction work to install sewer tiles onto the Spur Track
drainage ditch and placing landfill on top of” the Spur Tracks. (ECF No. 162, Pl.’s Resp. Defs.’
LR 56.1 Stmt. ¶¶ 69-70.) Chessie further alleges that defendants’ activities “created a slope on
top of” the Spur Tracks, “which caused the landfill to encroach onto” the Lead Tracks, and that
defendants later did more damage to the Lead Tracks by using heavy equipment to remove
landfill. (Id.; ECF No. 165, Pl.’s Mem. at 10.) Chessie seeks $618,442 in damages for what it
says would be the cost of removing the landfill and repairing the damage to the tracks and
roadbed. (ECF No. 165-2, Pl.’s Ex. 16, Expert Report of Thomas E. Scott Jr. at 6, 29.)
4545 James Place filed a counterclaim for declaratory judgment and ejectment and to
quiet title, asserting that Chessie was never granted the easements over its land or, in the
alternative, Chessie abandoned them.2
1
Chessie refers to these tracks at times as the “Spur Track and Side Track’” and at other
times as the “Spur Tracks.” For simplicity, the Court will refer to the tracks as the “Spur Tracks.”
2
4545 James Place indicates that it will withdraw its counterclaim in the event that
defendants’ motion for summary judgment is granted. (ECF No. 159, Defs.’ Mem. at 2 n.1.)
2
The Court previously dismissed with prejudice Chessie’s claim for violation of 49 U.S.C.
§ 10903, leaving the trespass and negligence claims. Defendants move for summary judgment
on both claims, and Chessie cross-moves for summary judgment.3
DISCUSSION
A.
Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The Court must construe the evidence and all inferences that reasonably can be
drawn therefrom in the light most favorable to the nonmoving party. Kvapil v. Chippewa Cty.,
752 F.3d 708, 712 (7th Cir. 2014); McKinney v. Cadleway Props., Inc., 548 F.3d 496, 499-500
(7th Cir. 2008). “A factual dispute is ‘genuine’ only if a reasonable jury could find for either
party.” Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 599 (7th Cir. 2014) (citation
and internal quotation marks omitted). “‘[T]he mere existence of some alleged factual dispute’
will not defeat summary judgment.” Bordelon v. Bd. of Educ., 811 F.3d 984, 989 (7th Cir. 2016)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
On cross-motions for summary judgment, the court considers “the burden of proof that
each party would bear on an issue of trial” and then “require[s] that party to go beyond the
pleadings and affirmatively to establish a genuine issue of material fact.” Santaella v. Metro.
Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997). For each motion, factual inferences are viewed
in the nonmovant’s favor. Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 603 (7th
Cir. 2015). Cross-motions for summary judgment “must be evaluated together, and the court
3
The operative complaint is the Amended Complaint. After the Amended Complaint was
filed, the Court granted Chessie’s motion to add Krinos Realty LLC as a defendant.
3
may not grant summary judgment for either side unless the admissible evidence as a
whole—from both motions—establishes that no material facts are in dispute.” Bloodworth v.
Vill. of Greendale, 475 F. App’x 92, 95 (7th Cir. 2012).
1.
Trespass (Count I)
“To prevail on a trespass claim under Illinois law, a plaintiff must plead and prove
negligent or intentional conduct by the defendant which resulted in an intrusion on the plaintiff’s
interest in exclusive possession of land.” Sak v. CitiMortgage, Inc., 940 F. Supp. 2d 802, 804
(N.D. Ill. 2013) (citing Porter v. Urbana-Champaign Sanitary Dist., 604 N.E.2d 393, 398 (Ill.
App. Ct. 1992) (citing Dial v. City of O’Fallon, 411 N.E.2d 217, 222 (Ill. 1980))). Chessie
contends that defendants interfered with its Lead Tracks on land that it owns in fee simple as
well as easement rights over the 4545 Property for the “construction, operation, maintenance,
repair, and use of” switches and spur track. (Pl.’s Mem. at 2.)4 The parties do not dispute that
Chessie owns the Lead Tracks and underlying real property, but they do dispute whether Chessie
owns easement rights over the 4545 Property.
a.
Chessie’s Easement Rights
“An easement is a right or privilege in the real estate of another.” McMahon v. Hines,
697 N.E.2d 1199, 1203 (Ill. App. Ct. 1998). “The user of the right of the easement enjoys what
is referred to as a dominant estate over the used land, which is the servient estate.” Id. “In the
context of easements, trespass occurs when there is a material interference with the right of the
owner of the dominant estate to reasonable use of the easement.” Chi. Title Land Trust Co. v. JS
4
Chessie quotes from Exhibit A to its Quit Claim Deed. Exhibit 2 to Chessie’s memorandum
is the first page of the “Quit Claim Deed,” which refers to the “attached” Exhibit A. Chessie failed
to include the second page of its quitclaim deed or Exhibit A, but defendants submitted the complete
document as their Exhibit 20.
4
II, LLC, 977 N.E.2d 198, 218 (Ill. App. Ct. 2012). “To acquire an easement by grant, no
particular words are necessary, but the words that are used must clearly show an intention by the
grantor to confer an easement, and such terms must be definite, certain, and unequivocal.”
McMahon, 697 N.E.2d at 1203. “A court interprets an easement in the same manner it would
interpret any agreement between parties. Generally, an instrument creating an easement is
construed in accordance with the intention of the parties, which is ascertained from the words of
the instrument and the circumstances contemporaneous to the transaction, including the state of
the thing conveyed and the objective to be obtained. However, if the language of an agreement
is facially unambiguous, then the trial court interprets the contract as a matter of law without the
use of extrinsic evidence.” River’s Edge Homeowners’ Ass’n v. City of Naperville, 819 N.E.2d
806, 809 (Ill. App. Ct. 2004); 527 S. Clinton, LLC v. Westloop Equities, LLC, 7 N.E.3d 756, 765
(Ill. App. Ct. 2014).
It is Chessie’s burden to demonstrate that it owns easement rights over the 4545 Property.
Chessie contends that J. Emil Anderson & Son, Inc. (“JEAS”) conveyed these rights to it by
quitclaim deed. The quitclaim deed, dated July 23, 2013, provides as follows:
THE GRANTOR, J. EMIL ANDERSON & SONS [sic], INC., . . . for and in
consideration of Ten and No/100 DOLLARS ($10.00), and other good and
valuable consideration, . . . CONVEYS and QUIT CLAIMS to CHESSIE
LOGISTICS CO., LLC, . . . all of the Grantor’s rights and interest in the
Premises described on Exhibit “A” which is attached hereto and made a part
hereof.
(ECF No. 160-4, Defs.’ Ex. 20, Quit Claim Deed, at 1.) Exhibit A, which is titled “LEGAL
DESCRIPTION” and bears the sub-heading “EASEMENT PARCELS,” states:
NON-EXCLUSIVE EASEMENT FOR CONSTRUCTION, OPERATION,
MAINTENANCE, REPAIR AND USE OF SWITCH AND SPUR TRACK
OVER LOTS 3, 6, 15, 16, 21 AND 23, AS TO THAT PART OF LOT 7, LYING
SOUTH OF THE EASTERLY EXTENSION OF THE NORTH LINE OF LOT
5
14 AND LYING EAST OF THE SOUTHERLY EXTENSION OF THE WEST
LINE OF LOT 14, IN J. EMIL ANDERSON’S RESUBDIVISION OF PART OF
ANDERSON’S NORTH-MANNHEIM INDUSTRIAL SUBDIVISION IN THE
SOUTHEAST ¼ OF SECTION 32, TOWNSHIP 40 NORTH, RANGE 12, EAST
OF THE THIRD PRINCIPAL MERIDIAN IN COOK COUNTY, ILLINOIS AS
CREATED BY GRANT OF EASEMENT RECORDED AS DOCUMENT
NUMBER 17649052.
(Id. at 3.)5 Underneath that language appear typewritten and handwritten lists of associated
Property Identification Numbers.
4545 James Place owns Lot 6 within the industrial
subdivision.
Because the quitclaim deed states that the “non-exclusive easement” that was conveyed
to Chessie was that “created by grant of easement recorded as document number 17649052,”
Chessie’s easement ownership hinges on that document. Pursuant to that Grant of Easement
(“Grant”), which is dated June 5, 1959, JEAS granted to the owners of Lots 1 through 12 in the
industrial subdivision a “permanent and perpetual right, privilege and non-exclusive easement
for the construction, operation, maintenance, repair and use of a switch and spur track” over
“Lots Three (3), Five (5), Seven (7) and Eight (8).” (ECF No. 160-4, Defs.’ Ex. 17, Grant of
Easement ¶¶ 1, 11.) There is no mention in the Grant of any easement over Lot 6, which is now
the 4545 Property; the only mention of Lot 6 therein is the grant of easements to its owner and
subsequent owners.
Chessie devotes little discussion to the pivotal issue of whether it was conveyed any
easement rights over the 4545 Property. In fact, Chessie nearly overlooks that in order to prove
5
The associated Purchase and Sale Agreement between JEAS and Chessie provided that, for
$2,000, JEAS would convey to Chessie title to Lots 3, 5, 7, 8, and 9 in the industrial subdivision,
as well as “interests in certain easements described on Exhibit A-2.” (ECF No. 160-3, Defs.’ Ex.
8, Purchase and Sale Agreement, at 1-2, Ex. A-1.) But Exhibit A-2 bears only the heading “THE
EASEMENTS” and is otherwise blank. (Id., Ex. A-2.)
6
its claims of trespass and negligence, it bears the burden of proving that it has such rights.
Chessie’s argument in support of its own motion verges on simply assuming so, and its primary
argument in response to defendants’ motion is that defendants’ “affirmative defense” is
preempted. The Court already rejected this unsupported preemption argument when it ruled on
Chessie’s motion to dismiss the counterclaim, explaining that “[w]hat Chessie is essentially
saying is that although it has chosen to resort to this court for resolution of claims that will
require it to prove that it possesses an easement for use of the spur track, the doctrine of primary
jurisdiction completely deprives 4545 James Place of its defenses to those claims and the ability
to obtain the corresponding relief it seeks.” (ECF No. 177, Mem. Op. & Order of Mar. 31,
2016.) Moreover, defendants’ contention that Chessie does not have easement rights over the
4545 Property is not an affirmative defense. The essence of an affirmative defense is that it
assumes the truth of what plaintiff alleges, yet asserts facts and arguments that will nonetheless
defeat the plaintiff’s claim. See, e.g., Bell v. Taylor, 827 F.3d 699, 704-05 (7th Cir. 2016).
Defendants deny Chessie’s allegation that it owns an easement over the 4545 Property.
Chessie would have the Court focus on the encumbrances on 4545 James Place’s title.
4545 James Place’s contract to purchase Lot 6 provides that the conveyance is subject to the
“Permitted Exceptions,” which are set forth on Exhibit B to the contract. (ECF No. 160-4,
Defs.’ Ex. 21, Purchase and Sale Agreement, ¶ 4E.)
Exhibit B, in turn, refers to certain
paragraphs of Schedule B, which is Chicago Title Insurance Company’s Commitment for Title
Insurance (the “Commitment”).
Among those specific paragraphs of the Commitment are
“exceptions” that include “spur track easement over the southeasterly portion of the land as
disclosed by survey prepared by Preferred Survey, Inc. dated January 22, 2001” as well as
“railroad rights-of-way and spur tracks over the easterly 15 feet of the land as disclosed by” the
7
same survey. (Id., Ex. B, Schedule B, at B2.)6 Neither the survey nor the documents related to
the transaction state that the easements are for the benefit of any particular lot. (Id.; ECF No.
160-4, Defs.’ Ex. 22, 2001 Survey.)
Chessie’s focus is misplaced; the fact that the 4545 Property is subject to these easements
does not establish that Chessie owns them. The claims at issue in the instant motions are
Chessie’s claims, not defendants’ counterclaim to quiet title. Chessie is unable to identify any
document that granted an easement in its favor over Lot 6, the 4545 Property.
Chessie’s
Purchase and Sale Agreement did not identify any particular easement, and although its
quitclaim deed purports to convey to Chessie an easement over Lot 6, that conveyance is limited
by what was “created by Grant of Easement,” and the Grant did not create such an easement.7
Chessie admits that its title insurance commitment likewise does not refer to any easement rights
over Lot 6. (Pl.’s Resp. Defs.’ L.R. 56.1 Stmt. ¶ 44.)
Chessie maintains that this Court should examine “the historical use of the spur tracks
and properties similarly situated to” the 4545 Property, instead of confining its analysis to the
four corners of the Grant of Easement. (Pl.’s Mem. at 3.) Chessie then describes a 1979 Grant
of Easement from JEAS to the Purex Corporation, whereby JEAS quitclaimed easement rights to
Purex and which “references” a deed to Purex’s precedessor, the Anday Building Corporation.
6
4545 James Place’s Special Warranty Deed provides that the conveyance is subject to the
same “Permitted Exceptions,” but refers to a June 4, 2010 survey. (ECF No. 160-4, Defs.’ Ex. 12.)
7
Moreover, as a matter of law, JEAS could convey to Chessie in the quitclaim deed only
those easement rights that JEAS possessed at that time. See Lindy Lu LLC v. Ill. Cent. R.R. Co., 984
N.E.2d 1171, 1176 (Ill. App. Ct. 2013) (“Unlike a warranty deed, in which the grantor makes certain
guarantees to the grantee, a quitclaim deed conveys only such title as the grantor has and contains
no covenants or warranties whatsoever.”).
8
Chessie also contends that JEAS historically maintained and repaired all switches and spur
tracks on the properties and contracted with the Indiana Harbor Belt Railroad for rail service to
the properties. According to Chessie, “[t]hese circumstances demonstrate that JEAS, when it
recorded the Grant [of Easement] in 1959, intended to have control over the construction,
operation, maintenance, repair and use of all rail facilities” in its subdivision “and that pursuant
to that purpose the Grant granted to JEAS easements over the properties; and that JEAS could
convey these rights to another.” (Id.)
Chessie’s argument is neither developed nor coherent. And it is difficult to see how
events and real property transactions that occurred well after JEAS executed the Grant of
Easement in 1959 can shed light on what easements JEAS intended to create in that document.
More importantly, the language in the Grant of Easement is unambiguous. The Grant did not
create easements over every lot in the subdivision; rather, by its plain language, it created
easements only over Lots 3, 5, 7, and 8, not Lot 6. Chessie does not argue that the language of
the Grant is ambiguous,8 yet it urges the Court to consider extrinsic evidence to essentially
rewrite the document. Traditional contract interpretation principles in Illinois require that a
facially unambiguous contract be interpreted without the use of parol evidence. See Air Safety,
Inc. v. Teachers Realty Corp., 706 N.E.2d 882, 884 (Ill. 1990). Therefore, the Court will not
look beyond the four corners of the Grant to determine what easements were conveyed therein.
Chessie has failed to demonstrate that a genuine issue of material fact exists as to
whether it acquired an easement over the 4545 Property. On this record, no finder of fact could
8
A contract is not ambiguous merely because the parties do not agree on its meaning or
intent. An ambiguity occurs only when the language of a contract is “reasonably susceptible to more
than one meaning.” Douglas Theater Corp. v. Chi. Title & Trust Co., 569 N.E.2d 88, 92-93 (Ill.
App. Ct. 1991).
9
reasonably rule that it did. Therefore, defendants are entitled to summary judgment on Chessie’s
trespass and negligence claims, to the extent the claims are based on interference with Chessie’s
alleged easements.
b.
Intrusion on Chessie’s Property
Even if Chessie could show that it owns the claimed easements, it has not produced any
evidence from which a reasonable finder of fact could determine that defendants intruded on that
interest.
Nor has it produced any evidence from which a reasonable finder of fact could
conclude that defendants intruded on its interest in the property it owns in fee simple, where the
Lead Tracks are located.
Chessie alleges that defendants intruded on its land in connection with defendants’
construction activities, by placing clay landfill on top of the Spur Tracks (which changed the
topography of the area around the Lead Tracks) and by damaging the Lead Tracks by using
heavy equipment to remove landfill. Defendants argue that the “independent contractor rule”
precludes Chessie from recovering against them for the intrusions because a subcontractor, a
company called A-Max Inc. (“A-Max”), performed the construction work and was not under
defendants’ control.
Defendants submit the Declaration of Eric Moscahlaidis, one of their corporate officers,
who states as follows: 4545 James Place retained Petro Paliouras as a contractor to perform work
to repair stormwater drainage issues on the 4545 Property; defendants themselves did not
perform any of the work; without notifying the defendants, Mr. Paliouras retained A-Max to
perform the work; defendants had no expectation or belief that work would be done on the
property adjacent to the 4545 Property; defendants had no knowledge that Mr. Paliouras or AMax would enter plaintiff’s property; defendants did not authorize, control, direct, supervise, or
10
observe A-Max’s work; defendants did not deal directly with A-Max, did not oversee the work,
and did not know what specific work was done; and defendants did not contract with or pay AMax. (ECF 160-4, Defs.’ Ex. 15, Decl. of Eric Moscahlaidis ¶¶ 7-14.) Chessie submits no
evidence that defendants themselves performed any of the construction work. It contends that
defendants are liable for Mr. Paliouras’s actions (and, evidently, those of A-Max) because he
was acting as their agent, not as an independent contractor.
“One can be liable in trespass for an intrusion by a third party if he acts with knowledge
that his conduct will, with a substantial degree of certainty, result in the intrusion.” Sak, 940 F.
Supp. 2d at 804 (citing Dietz v. Ill. Bell Tel. Co., 507 N.E.2d 24, 26 (Ill. App. Ct. 1987)). “Thus,
a person who aids, abets, assists, or directs the commission of a trespass by another is liable for
trespass.” Id. (citing Dietz, 507 N.E.2d at 26). Furthermore, the doctrine of respondeat superior,
which provides that a principal may be liable for the tortious actions of its agent even if the
principal itself does not engage in any conduct in relation to the plaintiff, is an exception to the
general rule that a person injured by the tortious act of another must seek relief from the person
who caused the injury. Jackson v. Bank of N.Y., 62 F. Supp. 3d 802, 814 (N.D. Ill. 2014)
(analyzing a trespass claim) (citing Lawlor v. N. Am. Corp. of Ill., 983 N.E.2d 414, 427 (Ill.
2012)). Respondeat superior, however, cannot typically be used to impose vicarious liability on
a principal for the tortious acts of its independent contractor. Id. (citing Lawlor, 983 N.E.2d at
427). The determination of whether someone is an agent or an independent contractor is
factually intensive, id. (citing Uesco Indus. Inc. v. Poolman of Wis., Inc., 993 N.E.2d 97, 112 (Ill.
App. Ct. 2013)), and “[t]he analysis turns primarily on the level of control that the alleged agent
retains over the performance of its assigned work,” id. (citing Horwitz v. Holabird & Root, 816
N.E.2d 272, 279 (Ill. 2004)). “In a principal-agent relationship, the principal retains the right to
11
control the manner and method in which the work is carried out by the agent. By contrast, an
independent contractor is one who undertakes to produce a given result but in the actual
execution of the work is not under the orders or control of the person for whom he does the work
but may use his own discretion in things not specified and without his being subject to the orders
of the person for whom the work is done in respect to the details of the work.” Id. (internal
quotation marks, ellipsis, brackets, and citations omitted).
“Other factors that bear on the
question of whether one is properly considered an agent or an independent contractor include
‘(1) the question of hiring; (2) the right to discharge; (3) the manner of direction of the servant;
(4) the right to terminate the relationship; and (5) the character of the supervision of the work
done.’” Id. (quoting Lawlor, 983 N.E.2d at 427). Chessie bears the burden of demonstrating
that the entrants to its property were the agents of defendants. See id. (citing Lawlor, 983 N.E.2d
at 427).
Defendants admit that 4545 James Place directed Mr. Paliouras to fix a drainage
problem. But there is no evidence that defendants acted with knowledge that the intrusions on
Chessie’s property were likely to result from the ordinary course of doing this work.
Furthermore, Chessie pays lip service to the principles of agency; its discussion is cursory.
Chessie asserts that, “based on the actions and conduct of the parties,” Mr. Paliouras was
defendants’ agent, and Chessie goes on to cite various immaterial facts about the general nature
of the relationship between Mr. Paliouras and defendants. (Pl.’s Mem. at 5-6.) Chessie fails to
present any evidence that defendants had the right to control the manner and method of Mr.
12
Paliouras’s work, and the limited evidence it does present suggests the opposite.9 There is
likewise no evidence that defendants had anything to do with Mr. Paliouras’s retention of A-Max
to perform work that resulted in landfill movement that affected the Lead Tracks.10
Chessie has failed to present evidence creating a genuine issue of material fact for trial as
to whether defendants acted with knowledge that the work they directed would likely result in an
intrusion on Chessie’s property or whether the entrants to its property were defendants’ agents.
The Court is unable to say, even on a sympathetic reading of the record, that a jury could so find.
The Court therefore grants defendants’ motion for summary judgment on Chessie’s trespass
claim, as well as its negligence claim to the extent it is based on trespass.
2.
Negligence (Count II)
Although Chessie states on page 14 of its opening memorandum that its negligence claim
is “based solely on trespass,” on page 12 it argues that defendants were negligent per se based on
their violations of notice provisions of the Illinois Adjacent Landowner Excavation Protection
Act (the “Protection Act”), 765 ILCS 140/0.01 et seq., and, in connection with the construction
activities, certain sections of the Illinois Administrative Code that concern railroad property.
9
Chessie’s presentation of evidence is slipshod, and many of the inferences it draws from this
evidence are unwarranted. For example, Chessie states: “Pursuant to a verbal agreement, clay
landfill was placed on top of the spur track ending in a bumping post, the side track and in between
the building and the spur track ending in a bumping post.” (ECF No. 164, Pl.’s LR 56.1 Stmt. ¶ 55.)
For this proposition, Chessie cites its Exhibit 6, an email to its counsel from an individual named
“Anna Kakareko,” who apparently is affiliated with A-Max but whose involvement and role is
unclear. Aside from the obvious hearsay problem with this exhibit (which Chessie does not offer
to remedy in its motion for leave to supplement its exhibits), the purported fact does not follow from
what is stated in the email. Moreover, several of Chessie’s responses to defendants’ statement of
facts are improperly disputed, including its responses to paragraphs 73, 74, and 75, which deal with
A-Max. (Pl.’s Resp. Defs.’ LR 56.1 Stmt.)
10
Defendants note that Chessie did not take Mr. Paliouras’s deposition. There is no
testimony from him in the record.
13
Defendants point out, correctly, that Chessie did not assert negligence per se in the amended
complaint or allege therein that defendants violated the Protection Act or Administrative Code.
Accordingly, defendants did not receive adequate notice of the claim. The Court concludes that
Chessie forfeited its negligence per se argument by raising it for the first time at summary
judgment. See Clancy v. Office of Foreign Assets Control of U.S. Dep’t of Treasury, 559 F.3d
595, 606 (7th Cir. 2009) (district court may reject a claim raised for the first time at summary
judgment); Lewis v. Sch. Dist. #70, 523 F.3d 730, 741 n.6 (7th Cir. 2008) (by failing to assert in
her complaint that the defendant failed to adequately notify her of her FMLA rights and thereby
impermissibly interfered with their exercise, plaintiff forfeited the argument).
In light of these rulings, the Court need not address the arguments concerning the
economic loss doctrine, the nature of the damages sought, causation, or mitigation, or those
regarding evidentiary materials and fact statements that were not necessary for the Court to
consider.
B.
Plaintiff’s Motion for Leave to Supplement Exhibits
After defendants filed their responses to Chessie’s statements of facts and objected
therein to several of Chessie’s exhibits, Chessie filed a motion “for leave to supplement exhibits
in statement of material facts nunc pro tunc.” In its motion, Chessie seeks to supplement its
Exhibits 8, 13, 14, 24, 25, 34, and 35 in an effort to remedy defendants’ foundational and
hearsay objections and objections to Chessie’s expert report. Chessie’s view is that the exhibits
are “extremely probative to this lawsuit.” (ECF No. 172, Pl.’s Mot. Leave Suppl. at 3, 5, 7.)
Exhibits 13, 14, 24, and 25 have to do with track conditions, track use, and damages, issues that
were not necessary to address given the Court’s rulings. As for Exhibits 8, 34, and 35, those
were proffered with respect to the issue of agency, but even if the Court were to consider their
14
substance, it is not probative of the level of control that defendants had over the performance of
the construction work or whether they acted with knowledge that the intrusions on Chessie’s
property were likely to result from the ordinary course of doing the work. Because the Court did
not find it necessary to consider plaintiff’s Exhibits 8, 13, 14, 24, 25, 34, or 35 in reaching its
decisions, Chessie’s motion for leave to supplement its exhibits is denied as moot.
CONCLUSION
The motion of Chessie Logistics Company LLC for summary judgment [161] is denied.
The motion of Chessie Logistics Company LLC to supplement exhibits [172] is denied as moot.
The motion of Krinos Holdings, Inc.; Krinos Foods LLC; Krinos Realty LLC; and 4545 James
Place Realty, LLC for summary judgment [158] is granted. On plaintiff’s claims, judgment will
be entered in defendants’ favor and against plaintiff. Given 4545 James Place’s statement of its
intentions regarding the counterclaim, it is directed to file an appropriate motion by December 9,
2016.
SO ORDERED.
ENTERED:
December 2, 2016
__________________________________
JORGE L. ALONSO
United States District Judge
15
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