Griffin v. Werner Enterprises, Inc.

Filing 45

MEMORANDUM Opinion and Order. Signed by the Honorable Geraldine Soat Brown on 3/1/2016. (et, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACQUELINE GRIFFIN,
Plaintiff,
v.
WERNER ENTERPRISES, INC.,
Defendant.

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Case No. 14 C 9995
Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER
Before the court is Defendant’s Motion for Summary Judgment. (Def.’s Mot.) [Dkt 21.]
For the reasons set forth below, the motion is granted.

JURISDICTION
Jurisdiction exists based on diversity of citizenship under 28 U.S.C. § 1332 (a)(2). (Compl.
¶ 3.) [Dkt 1.] In her complaint, Griffin alleges she is a resident of Maryland. (Compl. ¶ 1; see also
Def.’s LR Stmt. ¶ 2 [dkt 23].)1 Werner is a Nebraska corporation with its principal place of business
in Nebraska. (Answer ¶ 2.) [Dkt 17.] The parties agree that complete diversity exists in this case
and the amount in controversy exceeds $75,000. (Def.’s LR Stmt. ¶ 4; Answer ¶ 3.) The parties
have consented to the jurisdiction of a magistrate judge. [Dkt 16.]

1

The citizenship of individuals is determined by domicile, not residence. See, e.g., Heinen
v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012). Because the parties agree that
Griffin is a citizen of Maryland, the court will construe Griffin’s statement as alleging her domicile.

PROCEEDINGS ON THE MOTION
The purpose of Fed. R. Civ. P. 56(c) and Local Rule 56.1 is to allow the court to see in one
document (or at most, two) which facts are undisputed and, if disputed, what evidence supports the
parties’ positions. On this motion, there are three “statements of undisputed fact,” none of which
respond precisely to the opposing party’s. The material facts, however, are undisputed.2

BACKGROUND
This case has a complicated procedural backstory, which will be discussed in detail later.
In summary, Griffin initially filed suit against Werner and an individual named “Roger Ingram” in
the Circuit Court of Cook County, Illinois (“Circuit Court One”) on August 30, 2010, alleging that
she slipped and fell on August 29, 2008 when getting out of a truck that was being operated by
Ingram in Illinois as an agent of Werner. (Def.’s LR Stmt., Ex. 2.) Werner removed that case to
United States District Court for the Northern District of Illinois on October 20, 2010 (“Federal Court
One”), on the grounds of diversity. (Case No. 10-cv-6765, Notice of Removal [dkt 1].) Griffin did

2

Defendant Werner Enterprises, Inc. (“Werner”) filed a statement of undisputed facts.
(Def.’s LR Stmt.) Instead of filing a response to Werner’s statement as required by Local Rule
56.1(b)(3), plaintiff Jacqueline Griffin (“Griffin”) filed her own statement of undisputed facts. (Pl.’s
LR Stmt.) [Dkt 31.] Local Rule 56.1(b)(3)(A) requires that the non-movant’s response contain
numbered paragraphs “each corresponding to and stating a concise summary of the paragraph to
which it is directed.” Griffin did not even provide a list of which paragraphs of Werner’s statement
she disputed and which are undisputed. Rather, she simply provided her version of the facts as if
she were the movant. Because Griffin failed to comply with LR 56.1(b)(3)(C) in her response, the
material facts stated by Werner are deemed admitted.
On the other hand, if Griffin’s statement were considered to be the opposing party’s
statement of undisputed facts pursuant to Local Rule 56(b)(3)(C),Werner did not respond directly
either. Instead, Werner filed a supplemental statement of undisputed facts. (Def.’s Suppl. Facts.)
[Dkt 40.] Griffin was ordered to file a response to Werner’s supplemental statement (Order, July
1, 2015 [dkt 43]), but did not, so those facts are deemed admitted.
2

not object to the removal. No proof of service on defendant Roger Ingram was ever filed Federal
Court One.3
Werner moved for summary judgment on the grounds that Werner did not have an employee
named “Roger Ingram,” and that the truck described by Griffin’s counsel as the one involved in the
incident had been sold by Werner prior to the date of the accident. (Case No. 10-cv-6765 [dkt 11,
17].) Griffin never responded to Werner’s motion and never contested any of Werner’s statements
of fact. Summary judgment in favor of Werner was entered by agreement February 1, 2011. (Def.’s
LR Stmt., Ex 3.) The District Judge then ordered Griffin to appear and show cause why Ingram had
not been served. (Case No. 10-cv-6765 [dkt 22].) When Griffin’s counsel failed to appear as
required, the case was dismissed on April 25, 2011. (Case No. 10-cv-6765 [dkt 23].)
Griffin filed a second lawsuit solely against Ingram in the Circuit Court of Cook County on
September 29, 2011, under case number 2011 L 10179 (“Circuit Court Two”). (Compl., Ex. B.)
“Roger Ingram” was served with summons in Circuit Court Two in Pennsylvania on November 11,
2011. (Id., Ex. C.) A default judgment was entered against Ingram on June 7, 2012, in the amount
of $300,000 plus court costs. (Id., Ex. 4.)
Griffin, now represented by a different attorney, filed this case on December 12, 2014, solely
against Werner, alleging that she had intended to bring suit against Roger Ingrum, an employee of

3

Griffin’s Statement of Undisputed Facts includes a “Notice of Filing” that was made in
Circuit Court One by Griffin’s then-attorney November 24, 2010, more than a month after the case
had been removed to federal court. (Pl.’s LR Stmt., Ex. C.) Its title, “Proof of Illinois Secretary of
State Service on Defendant Roger Ingram,” is misleading. The document included is the Illinois
Secretary of State’s acceptance of service pursuant to 625 Ill. Comp. Stat. 5/10-301, but subsection
(b) of that statute requires Griffin to follow up by notifying Ingram personally by registered mail with
an affidavit of compliance. There is no evidence that any such notification occurred. The “Notice
of Filing” was never filed in Federal Court One.
3

Werner, and that she simply misspelled the last name. (Compl. ¶¶ 14-16.) Griffin seeks a judgment
against Werner for $300,000 and costs, the amount of the default judgment entered against Roger
Ingram. (Id. at 3.)4
Werner now moves for summary judgment, arguing: first, that the judgment entered in its
favor in Federal Court One is res judicata; second, that Griffin signed a valid waiver and release of
her claim; and third, that the statute of limitations bars Griffin’s claim. (Def.’s Mem. at 2.) [Dkt
24.] Griffin filed a response in opposition to Werner’s motion (Pl.’s Resp. [dkt 30]), and Werner
replied (Def.’s Reply [dkt 39]). The court denied Griffin’s Motion for Leave to File Sur-Reply
because her counsel did not identify a need for a reply. (Order, July 1, 2015.) [Dkt 43.]

LEGAL STANDARD
Summary judgment on all or part of a claim or defense is proper “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). To oppose a motion for summary judgment successfully, the
responding party may not simply rest on its pleadings, but rather must submit evidentiary materials
showing that a material fact is genuinely disputed. Fed. R. Civ. P. 56(c). A genuine dispute of
material fact exists when there is “sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
nonmoving party bears the responsibility of identifying applicable evidence. Bombard v. Ft. Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). In determining whether a genuine dispute of
4

Although Griffin did not plead a specific theory of liability, the claim appears to based on
respondeat superior, alleging that Roger Ingrum was Werner’s agent, servant, and/or employee at
the time of the accident. (Compl. ¶ 16.)
4

material fact exists, the court construes all facts and draws all reasonable and justifiable inferences
in favor of the nonmoving party. Anderson, 477 U.S. at 255.

DISCUSSION
I.

The judgment in favor of Werner in Federal Court One is res judicata and bars
Griffin’s claim here.
“Under res judicata, a final judgment on the merits bars further claims by parties or their

privies based on the same cause of action.” Ross v. Board of Education of Township High School
Dist. 211, 486 F.3d 279, 282 (7th Cir. 2007) (quoting Montana v. U.S., 440 U.S. 147 (1979)). Res
judicata requires the following elements: “(1) a final judgment on the merits in an earlier action, (2)
an identity of the cause of action in both the earlier and later suit, and (3) an identity of parties or
privies in the two suits.” Smith v. City of Chicago, 820 F.2d 916, 917 (7th Cir. 1987).5

A.

The judgment was final when the last remaining claim was dismissed by the District
Judge on April 25, 2011.

The parties do not dispute the identity of claims and parties between Griffin’s claim against
Werner in Federal Court One and this case. It is not clear, however, that Griffin concedes that the
summary judgment entered by agreement in favor of Werner is a final judgment. Griffin’s argument
is difficult to decipher, but she appears to contend that because she was alleging a respondeat
superior theory of liability against Werner based on the claims against Ingram, a judgment against
Werner could not be final until there was a final judgment as to Ingram, which Griffin asserts was
5

The parties cite Illinois state law for their arguments about res judicata, but “[t]he federal
law of claim preclusion applies here because the earlier judgment was rendered by a federal court.”
Ross, 486 F.3d at 283 (citing prior authority).
5

not until the subsequent default judgment in Circuit Court Two. (Pl.’s Resp. at 6-7.)6
The fact that the judgment in favor of Werner was on summary judgment as opposed to a trial
does not limit its res judicata effect. “[S]ummary judgment is a final judgment on the merits for
purposes of claim preclusion.” Qualls v. NIU Bd. Of Trs., 272 F. App’x 512, 513-14 (7th Cir.
2008)(unpublished order). “[A] case need not go to full trial to be ‘on the merits’ and thus have
preclusive effect.” Cannon v. Loyola Univ. of Chicago, 609 F. Supp. 1010, 1015 (N.D. Ill. 1985).
A “judgment on the merits” as that phrase is used in the conventional statement of
the res judicata doctrine is not necessarily a judgment based upon a full trial of
contested facts. Thus, a judgment by default, a judgment on stipulation or agreement,
or on motion for summary judgment is “on the merits” for res judicata purposes.
In re Ross, 81 B.R. 473, 475 (Bankr. N.D. Ill. 1988) (citing Ruple v. City of Vermillion, 714 F.2d 860
(8th Cir. 1983).
Because the judgment in favor of Werner did not dispose of all claims in Federal Court One,
however, it was not a final judgment when entered. Fed. R. Civ. P. 54(b). It became final when all
claims in Federal Court One were disposed of. The involuntary dismissal of Griffin’s claim against
Ingram disposed of the final remaining claim and ended the action. “Generally, an order constitutes
a final decision if it ends the litigation and leaves nothing to be decided in the district court.” U.S.
v. Ettrick Wood Products, Inc., 916 F.2d 1211, 1216 (7th Cir. 1990).
The district judge dismissed Griffin’s claim against Ingram for want of prosecution and
Griffin’s violation of the court’s orders. The court expressly warned Griffin that “failure to appear
can result in the case being dismissed for want of prosecution and failure to follow the courts [sic]

6

The name “Ingrum” did not appear in any of the lawsuits until the present case. This
opinion will use “Ingram” in connection with the prior lawsuits because that is the name used in
those lawsuits.
6

orders.” (Case No. 10-cv-6765, Minute Order, Jan. 24, 2011 [dkt 19].) Fed. R. Civ. P. 41(b)
provides:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule – except one for lack of jurisdiction, improper venue,
or failure to join a party under Rule 19 – operates as an adjudication on the merits.
Federal courts have the authority to dismiss an action under Rule 41(b) for failure to comply with
a prior court order. Fed. Election Comm’n v. Al Salvi for Senate Comm., 205 F.3d 1015, 1018 (7th
Cir. 2000). In addition,
[c]ourts have discretion to impose sanctions to protect the judicial process, Chambers
v. NASCO, Inc., 501 U.S. 32, 44–45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), and the
authority of a court to dismiss cases sua sponte for lack of prosecution has long been
considered an “inherent power” that is “necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious disposition of cases.” Link
v. Wabash Railroad Co., 370 U.S. 626, 630–31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).
Id.
Griffin was warned again under the same principle on January 28, 2011. (Case No. 10-cv6765, Order, Jan. 28, 2011 [dkt 20].) When Griffin’s counsel appeared, the district judge ordered
Griffin to file proof of service on Roger Ingram. (Case No. 10-cv-6765, Order, Feb. 1, 2011 [dkt
21].) Griffin failed to do so and was ordered to show cause why Ingram was not served. (Case No.
10-cv-6765, Order, April 13, 2011 [dkt 22].) Griffin, however, failed to appear to show cause and
the district judge dismissed the case. (Case No. 10-cv-6765, Order, April 25, 2011 [dkt 23].)
Although the district judge’s dismissal order itself did not expressly refer to Rule 41, it was part of
the series of orders referring to Griffin’s failure to prosecute and failure to follow court orders. The
order entering the dismissal was an adjudication on the merits under Rule 41(b).

7

The disposal of the final claim made all claims final and appealable. 28 U.S.C. § 1291.
Griffin failed to take an appeal or otherwise move to stay the effect of the judgment. The judgment
entered in favor of Werner is, therefore, a final judgment and entitled to res judicata effect.

B.

The judgment is not void.

Griffin argues that the judgment in Federal Court One cannot be res judicata because that
judgment is void. (Pl.’s Resp. at 4-5.) Griffin argues that there was no federal subject matter
jurisdiction for Federal Court One because she and Ingram were both citizens of Pennsylvania at the
time of the complaint’s filing and at the time the case was removed to federal court, destroying the
necessary diversity of parties. (Id.) In support she cites American Fire & Casualty Co. v. Finn, 341
U.S. 6 (1951) (judgment void for lack of subject matter jurisdiction).
As a threshold matter, Griffin does not explain why she waited four years to claim that the
judgment is void. Fed. R. Civ. P. 60(c)(1) requires a motion for relief on the ground that the
judgment is void be brought within a “reasonable time” after the entry of the judgment. Griffin
(through her then-counsel) knew that summary judgment had been entered for Werner and that the
case ended in 2011. Griffin also knew in 2010 and 2011 what her citizenship had been in 2008. Her
current briefing makes no effort to explain why her argument is timely.
Considering the merits of that argument requires review of the record. In her complaint in
Circuit Court One, Griffin alleged that on August 29, 2008, that she was a passenger in a vehicle
being operated in Illinois by Roger Ingram in his capacity as agent, servant, and/or employee of
Werner. (Def.’s LR Stmt., Ex. 2. ¶¶ 1-3.) She alleged that the vehicle was parked in the City of
Channahon, Illinois, when she slipped and fell while descending off the truck. (Id. ¶¶ 2, 4.) The
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complaint said nothing about the citizenship or residence of any party except that Werner was a
“foreign corporation.” (Id. at 1.)
Werner’s Notice of Removal in Federal Court One alleged upon information and belief that
Griffin was a citizen of Illinois because she had retained an Illinois attorney and was in Illinois at
the date of the incident. (Case No. 10-cv-6765, Notice of Removal ¶ 2.) Werner also stated that
Griffin’s counsel had promised to provide information regarding Griffin’s residence but no
information had yet been provided: “Therefore, given the lack of objection from plaintiff’s attorney
regarding the plaintiff’s Illinois citizenship, movant remains of the belief that the plaintiff is an
Illinois resident.” (Id.) Werner also stated, on information and belief, that Ingram was a citizen of
Pennsylvania, based on the address listed for him on the summons in Circuit Court One. (Id. ¶¶ 8-9.)
Unlike the plaintiff in the American Fire case, Griffin never filed an objection to the Notice
of Removal or a motion to remand. See American Fire, 341 U.S. at 7 (“Respondent tried to have
the case remanded before trial but was unsuccessful.”). Instead, Griffin’s counsel joined in filing
an initial status report asserting federal jurisdiction based on diversity. (Case No. 10-cv-6765 [dkt
16].) And, as described above, Griffin agreed to the entry of summary judgment in favor of Werner
on her claim.
Griffin now contends that she was a citizen of Pennsylvania at the time of Federal Court One.
In support, she submits only her affidavit dated May 18, 2015, stating that from the date of the
accident, August 29, 2008, to February 1, 2011, she was a citizen of Pennsylvania, residing in
Philadelphia. (Pl.’s LR Stmt., Ex. B.)7 In response, Werner submits a copy of Griffin’s driver’s
7

“A party’s own declarations concerning the identity of his domicile . . . , as is true of any
self-serving statement, are subject to judicial skepticism.” 13E Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 3612, at 549 (3d ed. 2009).
9

license issued in September 2007 by the State of North Carolina, showing Griffin’s address as North
Carolina. (Def.’s Suppl. LR Stmt., Ex. A-1.) Werner also submits an accident report from the same
date as the accident alleged in this case, in which Griffin reported falling over a parking block behind
a store and breaking her arm. (Def.’s Suppl. LR Stmt., Ex. B-2.) In that report, her address is listed
as “S[outh] C[arolina] (staying with mother).” (Id.)
The issue is whether Griffin’s affidavit, submitted four years after the entry of the judgment
in Federal Court One, undermines the res judicata effect of that judgment. The court finds that it
does not.
In considering subject matter jurisdiction, the district judge in Federal Court One had broad
discretion to consider “whatever evidence has been submitted.” Karazanos v. Madison Two
Associates, 147 F.3d 624, 626 (7th Cir. 1998). “A court may accept the uncontested, good faith
allegations of jurisdictional facts.” Id. (citation omitted). “[I]t is up to the party opposing federal
jurisdiction to contest the facts as pleaded.” Id. at 628. Like Griffin, the plaintiff in Karazanos
never challenged the defendant’s statement of jurisdictional facts justifying removal. Id. at 626.
Instead, like Griffin, the plaintiff in Karazanos “acquiesced . . . and left the allegations of . . .
citizenship unchallenged.” Id. at 628.
The location of her own domicile (and, therefore, citizenship) was certainly something that
Griffin knew. By failing to contest Werner’s assertion in the Notice of Removal and by filing a joint
statement acknowledging federal diversity jurisdiction, Griffin effectively stipulated to the fact
(whether or not it was true), that she was a citizen of Illinois and not of Pennsylvania.
Although the parties cannot create federal jurisdiction by agreement, a party is bound by its
stipulation of facts. As the Supreme Court stated, “Litigants, we have long recognized, are entitled
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to have their case tried upon the assumption that facts, stipulated into the record, were established.”
Christian Legal Society Chapter of Univ. of California, Hastings College of the Law v. Martinez,
561 U.S. 661, 676 (2010) (citation and internal alterations omitted).
Factual stipulations are binding and conclusive, and the facts stated are not subject
to subsequent variation. So, the parties will not be permitted to deny the truth of the
facts stated, or to maintain a contention contrary to the agreed statement, or to
suggest, on appeal, that the facts were other than as stipulated or that any material
fact was omitted.
Id. at 677 (citation and internal alterations omitted).
Griffin now suggests that the district judge should not have accepted statements of citizenship
“on information and belief.” (Pl.’s Resp. at 4.) Griffin cites America’s Best Inns, Inc. v. Best Inns
of Abilene, L.P., 980 F.2d 1072 (7th Cir. 1992), which holds that an affidavit with bare allegations
of citizenship on information and belief is insufficient. Where there are some facts, however,
supporting the allegation of citizenship and the party “who [is] in the best position to furnish
evidence of [its] citizenship – [has] declined the opportunity to challenge the factual basis of [the]
allegation,” the court may proceed. Medical. Assur. Co., Inc. v. Hellman, 610 F.3d 371, 376 (7th
Cir. 2010).
A similar conclusion was reached in Tile Unlimited, Inc. v. Blanke Corp., 788 F. Supp. 2d
734, 737 (N.D. Ill. 2011). The plaintiff there challenged the defendants’ notice of removal for
alleging upon information and belief that the plaintiff’s principal place of business was in Illinois.
Id. at 743. The district court noted that there were other indicia of the plaintiff’s citizenship,
including the complaint’s allegations that the plaintiff purchased a product from one of the
defendant’s locations in Illinois and that the plaintiff was in the business of installing tiles in
buildings in Illinois. Id. The court emphasized that, after the defendants alleged the plaintiff had
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its principal place of business in Illinois – in effect, daring the plaintiff to challenge that assertion
– the plaintiff fell silent. Id. The court ultimately concluded the record contained sufficient indicia
that the defendants properly asserted diversity jurisdiction in their removal notice. Id.
In this case, the facts supporting Werner’s Nebraska citizenship (which as never been
contested) were set out in the Notice of Removal. Werner also set out facts supporting its belief that
Griffin was a citizen of Illinois (the location of the accident, her hiring of an Illinois attorney and
filing suit in Illinois). The inference drawn from those facts was confirmed by Griffin’s failure to
contest it. Werner’s belief that Ingram was a citizen of Pennsylvania was drawn from the address
Griffin set out in the summons, and there has never been a dispute that he was a citizen of
Pennsylvania. 28 U.S.C. § 1447(c) states: “If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” Griffin never suggested
before final judgment that subject matter jurisdiction was lacking.
Even assuming that Griffin can raise the issue at this late date, the judgment is not void for
lack of subject matter jurisdiction. The uncontested facts presented to the District Judge showed
federal jurisdiction existed: Werner was a citizen of Nebraska, Griffin was a citizen of Illinois, and
Ingram was a citizen of Pennsylvania. Griffin cannot now – four years after the final judgment –
change those facts by saying, in effect, she mislead the court and Werner.

C.

The judgment will not be vacated as a fraud on the court.

Griffin also argues that Werner fraudulently represented in Federal Court One that it did not

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own the truck involved in this case and that Ingram was not its employee.8 Fed. R. Civ. P. 60(b)(3)
requires a party seeking to set aside a judgment for fraud to make such a motion within one year of
the judgment. That time has passed, and Griffin is limited to her argument under Fed. R. Civ. P.
60(d)(3), which allows the court to set aside a judgment for fraud on the court. Fraud on the court
is exempted from the one-year limitation because it is more serious than fraud on the opposing
litigant and involves egregious conduct that might corrupt the judicial process itself, such as bribing
a judge or inserting bogus documents into the record. Oxxford Clothes XX, Inc. v. Expeditors Intern.
of Washington, Inc., 127 F.3d 574, 578 (7th Cir. 1997). Griffin does not meet her burden here.
As discussed above, Werner moved for summary judgment in Federal Court One because its
records showed it did not have an employee named “Roger Ingram,” the name pled in Griffin’s
complaint. Werner’s Supplemental Statement of Material Undisputed Facts in Federal Court One
also stated that Griffin’s then-attorney informed Werner’s counsel in January 2011 that the truck
involved was Werner’s Tractor Number 45671. (Case No. 10-cv-6765 [dkt 17].) Werner said that
a review of its records showed that Tractor Number 45671 had been sold before the date of the
accident, August 29, 2008. (Id.) Griffin never disputed those statements. Certainly, the attorney
then representing Griffin knew what he told Werner’s attorney, and if Werner’s statement was not
correct, Griffin’s counsel had an opportunity to deny it and correct the record.
Griffin now says that at some unspecified time she “discovered” that Roger Ingram’s name
was misspelled in both of her complaints, and the actual spelling is “Ingrum.” (Pl.’s LR Stmt. ¶ 24.)
She says, “Shortly after Griffin discovered that Ingrum was, in fact an employee of Werner at the
8

Griffin also argues that Werner falsely represented that Ingram had not been served at the
time of removal, and that Griffin was a citizen of Illinois. Those arguments have been discussed
above.
13

time of the accident, Griffin also discovered that Werner owned the truck at the time of the
accident.” (Pl.’s Resp. at 9.) She does not state when she made those discoveries or why she could
not have made them earlier.
Werner states, “Years after summary judgment was entered, Plaintiff’s counsel provided the
correct spelling of the driver’s name [Ingrum] which allowed Werner to locate the driver’s file which
contained Griffin’s Passenger Permit Application and the driver’s license she submitted with that
application.” (Def.’s Suppl. Stmt. ¶ 7.) Griffin has not denied that statement.
That “Passenger Authorization and Release,” which was signed by Griffin in July 2008 in
order to get Werner’s permission ride with Ingrum, has his name correctly spelled: “Roger Ingrum.”
(Def.’s LR Stmt., Ex 8.) He is identified as Griffin’s “friend.” (Id.) Likewise, the Accident Report
that Giffin filled out when she fell behind the store on the same day has the correct spelling: “Roger
Ingrum.” (Def.’s Suppl. Stmt., Ex. B.) The Passenger Authorization identifies the Power Unit
number (tractor number) as 45167, not 45671, the number Griffin’s counsel told Werner in 2011.
(Def.’s LR Stmt., Ex 8.)
In short, Griffin knew that the correct name of her friend was “Roger Ingrum” not “Ingram,”
yet she sued him twice under the wrong name. Her lawyer also gave Werner the wrong tractor
number. Now using the correct number, Werner does not deny that it owned tractor 45167 in 2008.
But there is no basis to believe that the information Werner submitted in Federal Court One – based
on the name and number Griffin supplied – was not accurate. Werner’s Senior Counsel of Litigation
states that Werner had more than 10,000 employees during the relevant time period. (Def.’s Suppl.
Stmt., Ex. A, Afft. of Nathan Meisgeier ¶ 2.) Its employee database requires accurate names to
search for an employee, and its search for “Roger Ingram” did not locate an employee. (Id. ¶¶ 3-4.)
14

Griffin does not contest those facts. Rather, Griffin speculates – without any evidence– that “[m]ost
likely, Werner was always aware that Griffin misspelled Roger Ingrum’s name.” (Pl.’s Resp. at 10.)
On the contrary, it was the responsibility of Griffin and her original counsel to provide accurate
information. They, not Werner, are the authors of Griffin’s problems. 9
Because the judgment in favor of Werner in Federal Court One is res judicata, it bars
Griffin’s claim here.10

II.

Griffin released her claim against Werner.
Werner also contends Griffin waived her right to sue Werner by signing the Passenger

Authorization and Release agreement. (Def.’s Mem. 5-8.) Griffin argues that the language of the
release does not apply because she was allegedly injured while attempting to get into the cab. (Pl.’s
Resp. at 16.) The language of the release is broad enough to cover Griffin’s alleged injury. It states
(in part): “I hereby release and hold harmless Werner Enterprises . . . from any and all liability for
personal injury . . . in any way arising from my status as a non-driver, whether as a passenger, or
during any loading, unloading, or other use of the power unit.” (Def.’s LR Stmt., Ex. 8.) Griffin
fails to provide any support for her argument that the release should not be applied here or does not

9

Griffin’s affidavit also states that she submitted her medical bills from the accident to
Werner “under a Zurich health insurance [sic] provided by Defendant Werner Enterprises, Inc.”
using a Pennsylvania address. (Pl.’s LR Stmt., Ex. B ¶ 3.) She does not include any bills or other
documents to support her statement. Werner’s Senior Counsel of Litigation states that Griffin never
submitted a claim for her alleged injuries to Werner and Zurich did not provide copies of Plaintiff’s
medical bills to Werner. (Def.’s Suppl. Stmt., Ex. A, ¶¶ 5-6.) Griffin’s unsupported statement fails
to demonstrate any knowledge by Werner and does nothing to prove any of her arguments.
10

Griffin’s argument (Pl.’s Resp. at 10-11, 14-15) that Werner waived its right to assert
defenses of res judicata or the release Griffin signed because those defenses were not asserted in
Circuit Court Two (to which Werner was not a party) is frivolous and requires no discussion.
15

cover her claim. The court finds that Griffin released her alleged claim against Werner.

III.

The statute of limitations bars Griffin’s claim.
Werner also argues that the statute of limitations bars Griffin’s claim for an injury that

occurred in August 2008. (Def.’s Mem. at 8.) Werner cites the two year limitation in 735 Ill. Comp.
Stat. § 5/13-202. Griffin fails to respond in any way to that argument. The court finds that Griffin’s
claim against Werner is also barred by the statute of limitations.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment [dkt 21] is granted.
Judgment is entered in favor of defendant Werner Enterprises, Inc. and against plaintiff Jacqueline
Griffin.
IT IS SO ORDERED.

__________________________
Geraldine Soat Brown
United States Magistrate Judge
Dated: March 1, 2016

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