Michel v. Credit Protection Association L.P. et al

Filing 73

MEMORANDUM Opinion and Order signed by the Honorable Robert M. Dow, Jr on 8/23/2017. Mailed notice (jh, )

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

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Plaintiff,
v.
CREDIT PROTECTION ASSOCIATION L.P.
and ETAN GENERAL, INC.,
Defendants.

Case No. 14-cv-8452
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Matthew Michel brings suit against Defendants Credit Protection Association
L.P. (“CPA”) and Etan General, Inc. (“Etan”) alleging that CPA’s calls to Plaintiff violated the
Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), and the Fair Debt Collection
Practice Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”). Currently before Court are Plaintiff’s
motion for partial summary judgment [53] and Defendants’ motion for partial summary
judgment [59]. For the reasons stated below, Plaintiff’s motion for partial summary judgment
[53] is denied, and Defendants’ motion for partial summary judgment [59] is granted. This case
is set for further status hearing on September 12, 2017 at 9:00 a.m.
I.

Background
Plaintiff brings claims against Defendants CPA and CPA’s parent company, Etan,

alleging violations of the TCPA and FDCPA. [See 12 (Amended Complaint).] Between January
5, 2013 and January 3, 2014, CPA placed multiple calls to Plaintiff’s cell phone seeking to
collect debts for two separate creditors—Comcast and Commonwealth Edison (“ComEd”)—both

1

of which had accounts with CPA.1 The issue at the center of the parties’ cross-motions for
partial summary judgment is whether CPA can be held liable only for the calls it made on behalf
of Comcast, or if it also can be held liable for the calls it made on behalf of ComEd. Although
many facts are in dispute, precluding full summary judgment for either party, the disputed facts
do not affect the Court’s analysis of the issue presented for partial summary judgment.
In early January 2013, after receiving a call that turned out to be related to his Comcast
debt, Plaintiff allegedly called CPA and orally advised CPA to stop calling him. 2 When CPA
called Plaintiff, it frequently left pre-recorded voicemails stating that the call was from a debt
collector and that Plaintiff should return the call. The pre-recorded messages identified the debt
through an eleven-digit reference number but did not state the name of the creditor (i.e., whether
the call was related to Plaintiff’s debt with Comcast or ComEd). CPA used a dial system
operated by Dial Connection to call Plaintiff. The parties dispute whether Dial Connection is an
automated telephone dialing system (“ATDS”), as required for TCPA liability.
Plaintiff alleges that he continued to receive calls from CPA in January and February
2013. CPA closed its Comcast account in February 2013, and CPA contends that it stopped
calling Plaintiff on behalf of Comcast at that time. It is undisputed that Plaintiff did not receive
any calls from CPA in March 2013. In April 2013, CPA opened an account with ComEd. Also
in April 2013, Plaintiff began receiving calls from CPA again, which continued until January
2014. CPA contends that the calls to Plaintiff between April 2013 and January 2014 were on
behalf of ComEd.
1

Plaintiff argues that CPA has not met its burden of proving that Plaintiff provided his cell phone number
to ComEd and that Plaintiff provided consent to ComEd. This disputed fact does not matter for purposes
of the present cross-motions for partial summary judgment.
2

Defendants contest that Plaintiff asked CPA to stop calling him, but this disputed fact also does not
matter for purposes of these cross-motions for partial summary judgment.

2

Plaintiff alleges that CPA did not advise him that it was seeking to collect debts for two
separate creditors. CPA, for its part, contends that it sent letters to Plaintiff on each account and
thus Plaintiff was put on notice of CPA’s attempts to collect for both Comcast and ComEd. CPA
also contends that Plaintiff could have determined which creditor a call referred to by calling
CPA back or by cross-referencing the eleven-digit account reference number stated in the
voicemail with the letters CPA allegedly sent to Plaintiff.
On June 30, 2016, the parties filed a joint status report explaining that a summary
determination on one issue would help streamline the disposition of this case: whether Plaintiff’s
alleged revocation of consent in early January 2013 means that CPA violated the TCPA for the
calls made on behalf of ComEd.3 This issue is now fully briefed and currently before the Court.
II.

Legal Standard
Summary judgment is proper where there is “no dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of
material fact exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party
seeking summary judgment has the burden of establishing the lack of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In evaluating a motion for
summary judgment, the Court will construe all facts in the light most favorable to the nonmoving
party and draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827
F.3d 699, 704 (7th Cir. 2016). However, “[c]onclusory allegations alone cannot defeat a motion

3

Plaintiff also raised one additional issue in his motion for partial summary judgment, which is discussed
below.

3

for summary judgment.” Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir.
2003).
III.

Analysis
Plaintiff argues that he should be able to recover for all calls made by CPA after he

allegedly instructed CPA to stop calling his cell phone. In Plaintiff’s view, his call to CPA
revoked any prior express consent CPA had to call him, whether on behalf of Comcast or
ComEd. Defendants argue that even if Plaintiff revoked consent to receive calls on the Comcast
account, that revocation does not apply to the later placed ComEd account, and thus Defendants
did not violate the TCPA by calling Plaintiff on behalf of ComEd. Plaintiff also raises one
additional issue in his motion for partial summary judgment: whether the doctrine of issue
preclusion bars Defendants from arguing that CPA did not use an ATDS to call his cell phone.
The Court will address each issue in turn.
A.

Revoking Consent

The TCPA prohibits the use of any automatic telephone dialing system to call cell phones
without the recipient’s prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii); Blow v. Bijora, Inc.,
855 F.3d 793, 798 (7th Cir. 2017). Violations of the TCPA may be redressed by a private right
of action for damages, § 227(b)(3), which consist of either $500 for each violation or recovery
for “actual monetary loss” resulting from the violation, “whichever is greater.” 47 U.S.C.
§ 227(b)(3)(B). The TCPA does not define what constitutes “prior express consent.” The
Federal Communications Commission (“FCC”), the agency vested with authority to issue
regulations implementing the TCPA, 47 U.S.C. § 227(b)(2), has shed some light on the issue.
See Toney v. Quality Res., Inc., 75 F. Supp. 3d 727, 734 (N.D. Ill. 2014).

Under the

Administrative Procedures Act, 47 U.S.C. § 402, otherwise known as the Hobbs Act, the Court is
4

bound by the FCC’s orders, which are final and controlling. See CE Design, Ltd. v. Prism
Business Media, Inc., 606 F.3d 443, 446 (7th Cir. 2010).
The FCC clarified in a 2008 Declaratory Ruling that “autodialed and prerecorded
message calls to wireless numbers that are provided by the called party to a creditor in
connection with an existing debt are permissible as calls made with the ‘prior express consent’ of
the called party.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991, 23 F.C.C. Rcd. 559, 559, ¶ 1 (Jan. 4, 2008) (“2008 TCPA Order”). The FCC
explained that “the provision of a cell phone number to a creditor, e.g., as part of a credit
application, reasonably evidences prior express consent by the cell phone subscriber to be
contacted at that number regarding the debt.” 2008 TCPA Order, 559, 564, ¶ 9; see also Jamison
v. First Credit Servs., Inc., 290 F.R.D. 92, 97 (N.D. Ill. 2013).
Additionally, the FCC ruled in its 2008 Declaratory Ruling that “[c]alls placed by a third
party collector on behalf of that creditor are treated as if the creditor itself placed the call.” 2008
TCPA Order, at 564, ¶ 10. In 2015, the FCC further explained that consent given as part of a
credit application “is valid not only for calls made by the original creditor, but also for those
made by a third party collector acting on behalf of that creditor.” In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991 Am., 30 F.C.C. Rcd. 7961, 8028
(July 10, 2015) (“2015 TCPA Order”)4; see also Wright v. Nationstar Mortage LLC, 2016 WL
4505169, at *8 (N.D. Ill. Aug. 29, 2016).

The Court notes that the FCC’s 2015 Order has been appealed to the D. C. Circuit pursuant to the Hobbs
Act. See ACA, Int’l v. FCC, No. 15-1211 (D.C. Cir. argued Oct. 19, 2016). Both parties discuss the 2015
Order, but neither side moves to stay this case pending resolution of ACA International. Cf. Ankcorn v.
Kohl’s Corp., 2017 WL 395707, at *3 (N.D. Ill. Jan. 30, 2017) (collecting cases in which courts have
ruled on motions to stay in TCPA cases while ACA International remains pending). The Court follows
the parties’ implicit suggestion that the issues in ACA International do not affect the outcome of the
4

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Once consent is given, it is effective until it is revoked. See Payton v. Kale Realty, LLC,
164 F. Supp. 3d 1050, 1065 (N.D. Ill. 2016) (“[C]onsent under the TCPA does not have an
expiration date and is considered effective until revoked.”). However, “[c]onsumers may revoke
consent at any time and through any reasonable means,” as long as the revocation “clearly
expresses a desire not to receive further messages.” 2015 TCPA Order, at 7965, ¶ 2, 7996, ¶ 63;
see also Dolemba v. Kelly Servs., Inc., 2017 WL 429572, at *3 (N.D. Ill. Jan. 31, 2017).
With this background in mind, the Court turns to the parties’ summary judgment
arguments. Plaintiff argues that when he alleged instructed CPA to stop calling him, this
instruction revoked any prior express consent CPA might have had, and this revocation applied
to all matters for which CPA was attempting to contact him. Plaintiff contends that since the
voicemails left by CPA only state an account reference number and not the name of the creditor,
he “could not have deciphered that he was being pursued by CPA on” two separate creditor
accounts, Comcast and ComEd.5 Thus, in Plaintiff’s view, he had no reason to believe that he
needed to again tell CPA to stop calling him. Plaintiff focuses on the fact that CPA has the
ability to perform searches to determine whether a debtor is already in its database and whether a
debtor has multiple accounts with CPA, as well as the capacity to mark a number in a “do not
call list.” Plaintiff argues that when he allegedly revoked consent, CPA should have placed his
cell phone number on a “do not call list” to prevent him from being called on all present and
future creditor accounts placed with CPA.

present cross-motions for partial summary judgment and thus no stay is necessary here. See Zeidel v.
A&M (2015) LLC, 2017 WL 1178150, at *8 (N.D. Ill. Mar. 30, 2017).
5

CPA contends that it sent letters to Plaintiff on each account and thus Plaintiff was put on notice of
CPA’s attempts to collect for both Comcast and ComEd. Plaintiff asserts that he “may or may not have
received” such letters. [64, at ¶ 18.]

6

Defendants, for their part, argue that when Plaintiff called CPA in early January 2013, he
was calling solely about his Comcast account, as Defendants had not yet placed the ComEd
account.

Defendants contend that even if Plaintiff revoked his prior express consent for

Comcast, the revocation does not apply to the later placed ComEd account. Defendants argue
that since calls placed by a third-party debt collector on behalf of a creditor are treated as if the
creditor itself placed the call, CPA’s calls on behalf of ComEd are treated as if ComEd placed
the call, and Plaintiff never revoked the consent that he allegedly gave to ComEd. According to
Defendants, Plaintiff did not clearly express a desire not to receive calls on behalf of ComEd; at
best, he implicitly revoked consent to receive calls on behalf of ComEd, which is not effective
revocation. See Cholly v. Uptain Grp., Inc., 2015 WL 9315557, at *3 (N.D. Ill. Dec. 22, 2015)
(granting defendants’ motion to dismiss as they relate to plaintiff’s claim that she revoked
consent and explaining that “plaintiff may have, at best, implicitly revoked her consent”).
Additionally, Defendants assert that the fact that CPA has the technical capacity to place a cell
phone number on a “do not call” list does not mean that the TCPA mandates that a debt collector
cross-reference its creditor accounts for consumers who have revoked consent for one particular
creditor.
The Court agrees with Defendants that revocation of consent for one creditor is not
revocation of consent for all creditors, and thus even if Plaintiff can prove that he revoked his
consent for CPA to call on behalf of Comcast when he called CPA in January 2013, he did not
revoke his consent for calls from ComEd or from CPA on behalf of ComEd. When Plaintiff
allegedly provided his cell phone number to Comcast and ComEd to set up accounts with these
creditors, he granted each creditor prior express consent to call his cell phone regarding that
creditor’s specific debt. See 2008 TCPA Order, 559, 564, ¶ 9 (“[T]he provision of a cell phone
7

number to a creditor, e.g., as part of a credit application, reasonably evidences prior express
consent by the cell phone subscriber to be contacted at that number regarding the debt”
(emphasis added)). When Comcast placed an account with CPA to have CPA collect the debt
Plaintiff owed Comcast, CPA then acquired consent to call Plaintiff, but only regarding the
Comcast account. See Toney, 75 F. Supp. 3d at 735 (“[A] third-party contractor performing
services for the entity to which a plaintiff provided her cell phone number stands in the shoes of
that entity in a consent analysis.”); Kolinek v. Walgreen Co., 2014 WL 3056813, at *3–4 (N.D.
Ill. July 7, 2014) (“[T]he scope of a consumer’s consent depends on its context and the purpose
for which it is given. Consent for one purpose does not equate to consent for all purposes.”).
Thus, CPA did not have consent to call Plaintiff regarding another creditor’s account, as “prior
express consent provided to a particular creditor will not entitle that creditor (or third party
collector) to call a consumer’s wireless number on behalf of other creditors[.]” 2008 TCPA
Order, at 565, ¶ 10 n.38; see also Andersen v. Harris & Harris, Ltd., 2014 WL 1600575, at *10
(E.D. Wis. Apr. 21, 2014).

In other words, the consent was creditor-specific, as it was

established through the creation of a specific debt. See 2008 TCPA Order, at 564–65, ¶ 10
(emphasizing that “prior express consent is deemed to be granted only if the wireless number
was provided by the consumer to the creditor, and that such number was provided during the
transaction that resulted in the debt owed”).
When Plaintiff called CPA in January 2013 and allegedly asked CPA to stop calling his
cell phone, he was returning a call that CPA made regarding the Comcast account, and therefore
revoked his consent only for calls made on behalf of Comcast. That is, Plaintiff’s revocation was
creditor-specific, just as the consent was creditor-specific. Plaintiff could not anticipatorily
revoke consent for all calls to be placed by CPA on behalf of potential future creditors, such as
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ComEd. Rather, CPA separately acquired consent to call Plaintiff on behalf of ComEd when the
ComEd account was placed, and that creditor-specific consent exists because CPA’s calls on
behalf of ComEd are treated as if ComEd itself placed the calls. See Frausto v. IC System, Inc.,
2011 WL 3704249, at *2 (N.D. Ill Aug. 22, 2011) (holding that the defendant debt collector was
the equivalent of the party to whom the plaintiff had provided her cell phone number for
purposes of the TCPA); Greene v. DirecTv, Inc., 2010 WL 4628734, at *3 (N.D. Ill. Nov. 8,
2010) (plaintiff, who gave Equifax her phone number for a fraud alert, consented to an
automated call made by defendant, a third party who received the phone number from Equifax).
Plaintiff never clearly revoked the consent he allegedly gave to ComEd. Therefore, CPA cannot
be held liable for its calls to Plaintiff on behalf of ComEd.
Although it may have been tedious for Plaintiff to discern that CPA was calling on behalf
of two different creditors, this does not change the fact that CPA obtained Plaintiff’s prior
express consent separately through each creditor.

Plaintiff still must revoke his consent

separately for each creditor.6 Nor is the Court persuaded by Plaintiff’s argument that CPA was
required to cross-reference accounts submitted by creditors to determine if a consumer had
revoked consent for a different creditor simply because CPA has the technical capacity to do so.
Rather, when Plaintiff allegedly revoked his consent for calls on behalf of Comcast, the TCPA
simply required CPA to refrain from calling Plaintiff using an ATDS regarding the debt Plaintiff
owed to Comcast.
Plaintiff argues that Harris v. World Financial Network National Bank supports his
argument that his alleged revocation applied to both the Comcast and ComEd accounts with

6

As previously noted, it is disputed whether Plaintiff gave consent to ComEd in the first place. However,
this disputed fact does not matter for purposes of this analysis.

9

CPA. 867 F. Supp. 2d 888, 892–97 (E.D. Mich. 2012). In Harris, a debtor who was not party to
the lawsuit opened accounts with three separate creditors. Id. at 890. The debtor provided each
creditor with a phone number that belongs to the plaintiff. Id. The debtor then fell past due on
all three of her accounts. Id. at 891. When the plaintiff received a call from a debt collector
regarding the first creditor account, he informed the debt collector that it should stop calling him
because it was calling the wrong number. Id. The debtor collector removed the number from the
specific creditor account for which it had called, but it did not remove the number from the thirdparty debtor’s two remaining accounts or from its entire calling system, even though it had the
capacity to do so. Id. The debtor collector then continued to call the plaintiff regarding the
third-party debtor’s two remaining accounts. Id. The Harris Court held that the debt collector’s
calls regarding the two remaining accounts violated the TCPA because at that point, the debt
collector had been put on notice that plaintiff’s phone number was not associated with the thirdparty debtor, and the debt collector was in a better position than the plaintiff to review its system
to ensure that the plaintiff’s number was not incorrectly tied to any of the third-party debtor’s
other remaining accounts. Id. 896.
Plaintiff contends that the facts of Harris are “nearly identical” to those here. The Court
disagrees and concludes that Harris, which is not binding on this Court, can be distinguished
from the case at hand. Harris involved “wrong number” calls to a plaintiff who had never
provided his prior express consent to be called by the creditors or by the debt collector on behalf
of the creditors. See Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 641 (7th Cir. 2012)
(explaining that if the original subscriber of a cell phone number gives consent but then the
number is later reassigned to a new subscriber and the creditor’s contacts file is out of date, the
creditor does not have the consent of the new subscriber); 2015 TCPA Order, at 8000–01, ¶ 73
10

(concluded that in determining whether there was “prior express consent of the called party,” the
term “‘called party’ is best understood to mean the subscriber to whom the dialed wireless
number is assigned because the subscriber is ‘charged for the call’ and * * * is the person whose
privacy is interrupted by unwanted calls”). The holding in Harris is not based on the plaintiff’s
revocation of his consent, as the debt collector never had the plaintiff’s consent in the first place.
Rather, the holding in Harris centers on the fact that the debt collector was put on notice that the
plaintiff’s phone number was not associated with the debtor on the accounts and therefore that it
did not have the plaintiff’s consent to call about any of the debtor’s accounts.7
Additionally, Harris did not contain the temporal separation between the creditor
accounts, which is present in the case at hand. Here, the ComEd account was placed with CPA
after Plaintiff’s alleged revocation of consent for his Comcast account. Thus, at the time of
Plaintiff’s alleged revocation, CPA did not yet have consent to call Plaintiff on behalf of ComEd.
And Plaintiff could not have clearly expressed a desire revoke consent that CPA did not yet
have. In contrast, the debt collector in Harris had the third-party debtor’s consent for each of the
three separate creditor accounts when the plaintiff put the debt collector on notice that it was
calling the wrong number.
For these reasons, the Court concludes that Plaintiff’s alleged revocation of consent in
January 2013 revoked consent only for CPA’s calls on behalf of Comcast and did not revoke any
alleged consent stemming from Plaintiff’s debt with ComEd. Therefore, CPA cannot be held
liable for calls to Plaintiff on behalf of ComEd.
7

Plaintiff argues that a creditor may call a wrong number provided by a previous subscriber to the cell
phone number because there is a one-call safe harbor for creditors or debt collectors who did not know
that the cell phone number had been reassigned. See 2015 TCPA Order, at 8009, ¶¶ 89–90. However,
this one-call window is merely a safe harbor from liability, and it does not give the creditor or debt
collector the new subscriber’s consent to call his cell phone number regarding the old subscriber’s debts.

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B.

Issue Preclusion

Next, Plaintiff argues that under the doctrine of issue preclusion, the Court should
conclude that CPA used an ATDS to call his cell phone in violation of the TCPA. Plaintiff
contends that the issue of whether Dial Connection, the dialing system used by CPA to call out
on collection accounts, is a predictive dialer and therefore an ATDS already has been adjudicated
against CPA in Schumacher v. Credit Protection Association, 2015 WL 5786139, at *6–8 (N.D.
Ill. Sept. 30, 2015). In Plaintiff’s view, since Schumacher held that “Dial Connection is a
predictive dialer and therefore an ATDS,” 2015 WL 5786139, at *8, CPA should thus be
precluded from relitigating the issue of whether Dial Connection is an ATDS.8
The doctrine of issue preclusion, or collateral estoppel, prevents the relitigation of issues
resolved in an earlier suit if the following elements are met: “(1) the issue sought to be precluded
is the same as an issue in the prior litigation; (2) the issue must have been actually litigated in the
prior litigation; (3) the determination of the issue must have been essential to the final judgment;
and (4) the party against whom estoppel is invoked must have been fully represented in the prior
action.” Adams v. City of Indianapolis, 742 F.3d 720, 736 (7th Cir. 2014). Plaintiff argues that
the issue raised by CPA in this case—whether Dial connection is a predictive dialer and
therefore an ATDS—is the same issue that was decided in Schumacher. Plaintiff further argues
that the issue was actually litigated and essential to the court’s final judgment in Schumacher and
that CPA was fully represented by counsel in Schumacher.
8

As discussed above, for TCPA liability to attach, the calls must have been placed using an automated
telephone dialing system or ATDS. 47 U.S.C. § 227(b)(1)(A)(iii); Bijora, 855 F.3d at 798. Congress
believed that automated or prerecorded telephone calls were a greater nuisance and invasion of privacy
than live solicitation calls, that such calls were costly and that such calls were inconvenient. Jamison, 290
F.R.D. at 9) (citing 2008 TCPA Order, at 559–60, ¶ 2). The Seventh Circuit has further explained that
unlike a human caller who would realize if there was a problem with the call, such as if it had the wrong
number, “predictive dialers lack human intelligence and, like the buckets enchanted by the Sorcerer’s
Apprentice, continue until stopped by their true master.” Soppet, 679 F.3d at 639.

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Defendants respond that Plaintiff’s motion is void of facts relating to the dialing system
used to call his cell phone and that Plaintiff has failed to establish that the dialer used in
Schumacher was used and operated in the exact same way in the instant case. Defendants
contend that Plaintiff only has established that the dialing system has the same name as the
system in Schumacher without establishing that it was used in the same time frame as that in
Schumacher or that it is in fact the same system. In Defendant’s view, just because the system
bears the same name does not mean it can be deemed an ATDS without any review or analysis
by this Court.
The Court agrees with Defendants that Plaintiff has failed to establish the factual basis
necessary to invoke issue preclusion on the issue of whether CPA used an ATDS to call Plaintiff
in this case. In his reply brief, Plaintiff attempts to offer new facts purporting to establish that
the ATDS used in Schumacher is the same system the CPA used in this case. Plaintiff attaches
an additional exhibit (“Exhibit 11”) to his reply brief, and in his reply brief, he cites to this new
exhibit and directly to raw record materials rather than to his Local Rule 56.1 statement.
However, Plaintiff’s attempt to offer new facts in his reply brief violates Local Rule 56.1.
Local Rule 56.1 requires a party moving for summary judgment to submit a statement of
material facts as to which the movant contends there is no genuine issue and entitles the movant
to judgment as a matter of law. The nonmovant must then file “a concise response to the
movant’s statement,” admitting or denying each of the movant’s factual statements and
providing a statement of any additional facts that may require the denial of summary judgment.
L.R. 56.1(b)(3). In response, the moving party may deny the additional facts to prevent them
from being deemed admitted. L.R. 56.1(a). Local Rule 56.1, however, does not permit the
moving party to submit additional facts. In other words, the rule “does not allow the movant to
13

make successive filings of fact to which the non-movant has no opportunity to respond.”
Developers Sur. & Indem. Co. v. Kipling Homes, L.L.C., 2013 WL 315960, at *2 (N.D. Ill. Jan.
28, 2013) (citation and internal quotation marks omitted); see also Premier Capital Mgmt., LLC
v. Cohen, 2008 WL 4378313, at *2 (N.D. Ill. Mar. 24, 2008) (declining to consider movant’s
“supplemental statement of undisputed material facts” tendered on reply).
The Seventh Circuit has repeatedly held that “district judges are entitled to insist on strict
compliance with local rules designed to promote the clarity of summary judgment filings.” Stevo
v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011). Local Rule 56.1 assists the Court by “organizing
the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s]
to prove a disputed fact with admissible evidence.” Bordelon v. Chi. Sch. Reform Rd. of Trs.,
233 F.3d 524, 527 (7th Cir. 2000).
Thus, the Court will not consider the new facts or new exhibit submitted with Plaintiff’s
reply brief, which were not included in Plaintiff’s Local Rule 51.6(a) Statement of Facts [55].
See Kipling Homes, L.L.C., 2013 WL 315960, at *2 (declining to consider new facts and
documents contained in the moving party’s summary judgment reply brief); Hernandez v.
Cottrell, Inc., 2014 WL 1292336, at *2 (N.D. Ill. Mar. 31, 2014) (refusing to consider new facts
injected into defendant’s summary judgment reply brief). “It is elementary that parties may not
raise new arguments or present new facts in their reply, thus depriving their opponent of the
opportunity to respond.” Weizeorick v. ABN AMRO Mortg. Grp., Inc., 2004 WL 1880008, at *2
(N.D. Ill. Aug. 3, 2004) (citing Multi-Ad Servs., Inc. v. N.L.R.B., 255 F.3d 363, 370 (7th Cir.
2001)). The Court emphasizes that the “driving force” behind this approach is not to hinder the
presentation of relevant facts, but to prevent a surprise addition of facts to which the Defendants
have had no opportunity to respond. Maher v. Rowen Grp., Inc., 2015 WL 273315, at *8 (N.D.
14

Ill. Jan. 20, 2015). Without the new facts in his reply brief, Plaintiff has offered no factual basis
for his argument that the dialing system used by CPA in Schumacher is the same system the
CPA used to call Plaintiff in this case, and thus Plaintiff’s motion for partial summary judgment
on this basis is denied.9
IV.

Conclusion
For the reasons stated above, Plaintiff’s motion for partial summary judgment [53] is

denied, and Defendants’ motion for partial summary judgment [59] is granted. This case is set
for further status hearing on September 12, 2017 at 9:00 a.m.

Dated: August 23, 2017
________________________________
Robert M. Dow, Jr.
United States District Judge

9

The Court also notes that Plaintiff violated the local rules by citing to raw record materials in his reply
brief, rather than to his Local Rule 56.1 statement. This violation of Local Rule 56.1, standing alone,
would be enough to deny Plaintiff’s motion for partial summary judgment. See Sledge v. Bellwood Sch.
Dist. 88, 2011 WL 2457920, at *2 (N.D. Ill. June 17, 2011) (denying summary judgment motion based on
movant’s violation of Local Rule 56.1); 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.”).

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