Taylor v. Kilmer et al
Filing
153
MEMORANDUM Opinion and Order: The Court grants Plaintiff's motion for summary judgment 141 on the second affirmative defense. The Court sets a status hearing for January 29, 2021 at 9:30 a.m. The parties are directed to file a joint status rep ort addressing next steps and suggesting trial dates. Members of the public and media will be able to call in to listen to this hearing. The call-in number is 888-808-6929 and the access code is 4911854. Counsel of record will receive an email 30 min utes prior to the start of the telephonic hearing with instructions to join the call. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Viol ation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Signed by the Honorable Jorge L. Alonso on 1/8/2021. Notice mailed by judge's staff (lf, )
Case: 1:18-cv-07403 Document #: 153 Filed: 01/08/21 Page 1 of 12 PageID #:1530
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDRE TAYLOR, ELRESE BOOKER, and
KATRINA J. STONE,
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Plaintiffs,
v.
LEONARD M. KILMER, individually and as
agent of WILSON LINES, INC., and WILSON
LINES, INC.
Defendants.
Case No. 18 C 7403
Hon. Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Plaintiffs, Andre Taylor, Elrese Booker, and Katrina J. Stone, now move for summary
judgment against Defendants, Leonard M. Kilmer and Wilson Lines, Inc., as to one of Defendants’
affirmative defenses. For the reasons that follow, the Court grants Plaintiffs’ motion.
BACKGROUND
This suit arises from a November 2017 traffic collision that happened on an entrance ramp
to Interstate 290 in the City of Chicago. (Pl.’s LR 56.1 SOF., Ex. 2 at ¶ 1, ECF No. 141.) Defendant
Leonard Kilmer was driving a semi-tractor-trailer for his employer, Defendant Wilson Lines, Inc.
As Kilmer drove down the ramp towards I-290, he rear-ended a vehicle carrying Plaintiffs Andre
Taylor, Elrese Booker, and Katrina Stone. (Id. at ¶¶ 1-2.) 1
In October 2018, Taylor filed suit against Defendants in Illinois state court, and in
November 2018, Defendants removed the suit to this Court. (See generally ECF No. 1.) The Court
1
The Court has jurisdiction over this suit pursuant to 28 U.S.C. § 1332(a) and 28 U.S.C. § 1367(a). (See
Not. of Removal at ¶¶ 2-7, ECF No. 1; see also Mot. to Amend Compl. at 3-5, ECF No. 62); see Dancel v.
Groupon, Inc., 940 F.3d 381, 384-85 (7th Cir. 2019) (existence of subject matter jurisdiction can be gleaned
from record as a whole).
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later granted an unopposed motion to file a first amended complaint, which added Plaintiffs Booker
and Stone. (See ECF No. 62; see also ECF No. 64.) Plaintiffs’ First Amended Complaint alleges
Defendants were negligent in rear-ending Plaintiffs’ vehicle, and Plaintiffs seek damages for
personal injuries they allegedly suffered in the accident. (See generally Am. Compl., ECF No. 70;
see also ECF No. 141 at ¶ 16.) 2
Thereafter, Defendants filed their answer, which contained two affirmative defenses. (See
Defs.’ Answer, ECF No. 73.) The second affirmative defense is titled “fraud in the presentation of
evidence as to all plaintiffs” and alleges, in its entirety:
Defendants contend Plaintiff’s cause of action is barred by fraud due to fraudulent
actions pre-accident being the sole proximate cause of the accident and/or claimed
damage or the extent of it being misrepresented. Defendants’ investigation and
discovery into this matter is incomplete at this early stage.
(Id. at 36.) After the close of discovery, Plaintiffs moved for summary judgment on Defendants’
second affirmative defense, arguing there are no genuine disputes of material fact in the record
and that Defendants’ affirmative defense fails as a matter of law because Defendants fail to offer
evidence sufficient to prove fraud. (See generally Pl.’s Memo. in Support of Summary Judgment,
Ex. 1, ECF No. 141.) Defendants oppose Plaintiffs’ motion.
LEGAL STANDARD
“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); Wackett v. City of Beaver Dam, 642 F.3d 578, 581 (7th Cir. 2011). A genuine dispute
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, 106 S. Ct. 2505, 91 L. Ed.
2
Plaintiffs’ First Amended Complaint added a fourth plaintiff, Shanika N. Taylor, who was later dismissed
as a party for want of prosecution. (See ECF No. 111.)
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2d 202 (1986). At the summary judgment stage, a court does not make credibility determinations,
weigh evidence, or decide which inferences to draw from the facts; those are jury functions. See
Gibbs v. Lomas, 755 F.3d 529, 536 (7th Cir. 2014). Rather, a court construes the evidence and all
inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving
party. See Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014). “A party that does not bear
the burden of persuasion [at trial] may move for summary judgment by showing—that is, point
out to the district court—that there is an absence of evidence to support the nonmoving party’s
case.” Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)) (quotations omitted). If the moving party makes such a
showing, “the nonmoving party bears the burden of production under Rule 56 to designate specific
facts showing that there is a genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
DISCUSSION
Plaintiffs move for summary judgment on Defendants’ second affirmative defense. Again,
the affirmative defense states that “Plaintiff’s cause of action is barred by fraud due to fraudulent
actions pre-accident being the sole proximate cause of the accident and/or claimed damage or the
extent of it being misrepresented.” (ECF No. 73 at 76.) Plaintiffs argue there is not sufficient
evidence in the record that would permit a reasonable trier of fact to find for Defendants on this
affirmative defense. For the reasons that follow, the Court agrees with Plaintiffs.
In this diversity suit, Illinois law governs plaintiffs’ claims and any affirmative defenses.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S. Ct. 817, 822-23 (1938); see also Williams
v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991) (“In a diversity case, the legal and
factual sufficiency of an affirmative defense is examined with reference to state law.”); RBS
Citizens, N.A. v. Sanyou Imp., Inc., 525 F. App’x 495, 497-98 (7th Cir. 2013) (applying state law
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and affirming summary judgment on defendants’ affirmative defense). Under Illinois law,
Defendants bear the burden of proving their affirmative defense of fraud. See e.g., Cordeck Sales,
Inc. v. Constr. Sys., 382 Ill. App. 3d 334, 384-85, 320 Ill. Dec. 330, 378, 887 N.E.2d 474, 522 (Ill.
App. Ct. 2008) (noting “the well-established legal principle that it is the party raising an affirmative
defense that bears the burden of proof” and granting summary judgment on affirmative defense of
fraud); see also Andrews v. Metro. Water Reclamation Dis. of Greater Chicago, 2019 IL 124283,
¶ 23, --- Ill. Dec. ----, --- N.E.3d ---- (Ill. 2019) (reviewing grant of summary judgment and noting
defendant bears the burden of proving affirmative defense).
The parties agree that, to prevail on their defense, Defendants must show by clear and
convincing evidence that: (1) the plaintiffs made a false statement of material fact; (2) the plaintiffs
knew the representation was false; (3) the plaintiffs intended that the representation induce the
defendants to act; (4) the defendants relied upon the truth of the statement; and (5) defendants’
damages resulting from the reliance.” See Connick v.Suzuki Motor Co., 174 Ill. 2d 482, 496, 221
Ill. Dec. 389, 396, 675 N.E.2d 584, 591 (Ill. 1996); see also Wernikoff v. Health Care Serv. Corp.,
376 Ill. App. 3d 28, 235, 315 Ill. Dec. 524, 530, 877 N.E.2d 11, 17 (Ill. App. Ct. 2007) (affirming
summary judgment); JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper Co., 707 F.3d 853, 86465 (7th Cir. 2013) (applying Illinois law and affirming summary judgment on fraud-based
defense). Defendants further argue that their fraud defense can also be based on Plaintiffs’
concealment of a material fact. (Defs.’ Resp. at 2, ECF No. 145.) This is true, but under a theory
of fraudulent concealment, the elements differ slightly and Defendants’ burden of proof is greater.
For instance, Defendants must show a special relationship existed between the parties giving rise
to a duty to speak. See Connick, 174 Ill. 2d at 500; see also Schrager v. N. Cmty. Bank, 328 Ill.
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App. 3d 696, 706-07, 767 N.E.2d 376, 384 (Ill. App. Ct. 2002) (analyzing elements of common
law fraudulent concealment).
In their motion, Plaintiffs show a lack of evidence in the record to support these elements
and argue that, as a result, Defendants’ second affirmative defense fails as a matter of law. (See
ECF No. 141 at 3-5; see also id., Ex. 2 at ¶¶ 1-2, 5-16.) Accordingly, the burden shifts to
Defendants to point to evidence in the record that creates a genuine issue of material fact.
Modrowski, 712 F.3d at 1167. Defendants appear to offer three theories for which they argue there
is sufficient evidence to support their defense of fraud.
Before addressing these theories, the Court must address Defendants’ failures to comply
with Local Rule 56.1 and the attendant consequences. In relevant part, LR 56.1 requires a party
opposing summary judgment to file “a concise response to the movant’s statement that shall
contain,” among other things, “numbered paragraphs, each . . . stating a concise summary of the
paragraph to which it is directed” and a response to each numbered paragraph “including, in the
case of any disagreement, specific references to the affidavits, parts of the record, and other
supporting materials relied upon[.]” LR 56.1(b)(3). First, Defendants fail to summarize (or restate)
the paragraph to which they are responding. While this violation of LR 56.1 is mainly a matter of
inconvenience, Defendants’ improper denials are more seriously problematic. When Defendants
deny the facts offered by Plaintiffs, they do so with bare denials or legal argument and fail to offer
opposing facts supported by citations to the record. (See Defs.’ LR 56.1 Resp., Ex. 1 at ¶¶ 6-16,
ECF No. 145.) This is insufficient to contest Plaintiff’s proffered facts. Defendants cannot create
disputes of fact by relying upon legal arguments, conclusions, or suppositions because these are
not facts. See Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382
(7th Cir. 2008); see also Almy v. Kickert Sch. Bus Line, Inc., No. 08-CV-2902, 2013 WL 80367,
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at *2 (N.D. Ill. Jan. 7, 2013) (noting “courts are not required to wade through improper denials
and legal argument in search of a genuinely disputed fact”) (quoting Bordelon v. Chi. Sch. Reform
Bd. Of Trs., 233 F.3d 524, 529 (7th Cir. 2000)). Accordingly, the Court disregards Defendants’
improper denials and deems admitted the underlying facts proffered and properly supported by
Plaintiffs. See Ibrahim v. Univ. of Chi., No. 17 C 6213, 2020 WL 405635, at *1 (N.D. Ill. Jan. 24,
2020) (disregarding unsupported and argumentative responses and deeming underlying facts
admitted).
The Court also notes Defendants flagrantly disregard LR 56.1’s requirements when it
comes to their own statement of additional facts. Defendants offer 79 additional facts, many of
which are clearly immaterial to deciding the instant motion. (ECF No. 145, Ex. 1 at ¶¶ 17-96.) By
rule, Defendants are limited to 40 additional facts, unless they first obtain leave of Court, which
they did not. LR 56.1(b)(3)(C). These violations undermine LR 56.1’s important purpose, which
is to aid a district court in isolating legitimately disputed facts and determining whether summary
judgment is appropriate. See Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir.
2007). It is well-settled that district courts have the discretion to require strict compliance with LR
56.1, and the Court could choose to simply disregard the supplemental facts that violate LR 56.1.
Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015). However, to the extent Defendants
have offered well-supported additional facts, the Court has chosen to consider them.
Turning to the parties’ arguments, the Court discerns three theories of fraud from the
briefing. The premise of the first theory appears to be that there was a white sedan involved in the
collision and that Plaintiffs and the driver of the white sedan conspired to purposefully cause the
collision. Although Plaintiffs spend time in their motion attacking the evidence supporting this
theory, (see ECF No. 141 at 3-5; see also id., Ex. 2 at ¶ 10), the Court need not delve too deeply
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into the issue because Defendants appear to abandon this theory in their response. (See generally
ECF No. 145 at 4 (mentioning white sedan but making no argument of conspiracy or agreement
between driver and plaintiffs to cause collision); see also id., Ex. 1 at ¶ 10 (denying defense is
based on conspiracy theory).) To the extent Defendants do base their defense on this theory (and
assuming the theory can support a defense of fraud), Defendants’ failure to develop their argument
or offer evidentiary support amounts to waiver. See Lewandowski v. City of Milwaukee, 823 F.
App’x 426, 430 (7th Cir. 2020) (“A district court is entitled to expect a party . . . opposing summary
judgment to lay out her arguments and the supporting, admissible evidence in sufficient detail that
the court is not forced to construct the arguments itself.”) Further, to the extent Defendants did
choose not to pursue this theory in their response, they were correct to do so because there is not
sufficient evidence in the record suggesting, “let alone clearly and convincingly” showing, that
Plaintiffs and the driver of the white sedan were working together to cause the collision. Asia Pulp
& Paper Co., 707 F.3d at 865. 3
The second theory of fraud also fails. In essence, Defendants argue the following: Plaintiffs
say there was traffic on the on-ramp that caused them to stop moments before Defendant Kilmer
struck their vehicle, but other evidence shows there was no traffic on the on-ramp at the time of
the collision. Defendants argue this other evidence shows that, or at least creates a dispute of fact
whether, Plaintiffs provided false testimony about the traffic on the on-ramp. Defendants contend
this false testimony can provide the basis for their fraud defense. (ECF No. 145 at 5-6.)
3
Along with testimony that the white sedan stopped on the ramp and prompted Plaintiffs’ vehicle to stop,
the only evidence related to this theory is Defendant Kilmer’s deposition testimony, raised by Plaintiffs,
that “the only thing that would make me believe that they [Plaintiffs and the white sedan] were working
together was that the guy chased off after the white car and never came back.” (ECF No. 141, Ex. 2 at ¶
12.) The parties fail to explain exactly what Kilmer meant by this, but even viewed in a light most favorable
to Defendants, no reasonable fact finder could infer the existence of a conspiracy based on this evidence.
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Defendants are wrong. Simply put, Defendants conflate lying with fraud. Even assuming
Plaintiffs are lying about the traffic on the on-ramp at the time of the collision, this
misrepresentation cannot form the basis of a fraud defense because Defendants fail to offer any
evidence to prove the other elements of fraud. For example, there is no evidence showing that
Defendants reasonably relied on Plaintiffs’ false testimony or that the testimony induced
Defendants to take any particular action that caused them damages. Asia Pulp & Paper Co., 707
F.3d at 864-65. Indeed, quite the opposite is true. Defendants are fighting liability in this suit and
are challenging the truthfulness of Plaintiffs’ testimony (which, of course, they are free to do at
trial). Tellingly, in their response, Defendants make no argument, nor point to any evidence,
showing how they can prove all elements of fraud based on this theory. (ECF No. 145 at 5-6.)
Defendants appear to think catching Plaintiffs in a lie is enough to prove a defense of fraud. It is
not. Arnold v. Villarreal, 853 F.3d 384, 389 (7th Cir. 2017).
Finally, Defendants argue they have a viable fraud defense based on a theory that Plaintiff
Katrina Stone obtained a rental car from Defendants through fraudulent means. Although the
record is far from clear, the parties seem to agree that, soon after the collision, an agent of
Defendant Wilson Lines, Inc. contacted Stone about providing her a rental vehicle due to the fact
that her vehicle was damaged in the collision. (See ECF No. 141 at 4; see also ECF No. 145 at 34.) At some point, some man—identified only in Defendants’ response brief as Defendant’s
“investigator”—came to take photographs of the damage to Stone’s vehicle. (See ECF No. 145 at
3; see also id., Ex. 1 at ¶ 38 (providing no citation to record).) The investigator did not speak to
Stone or ask her any questions about the damage caused by the collision. Defendant eventually
provided Stone with a rental vehicle sometime in 2017 for an unspecified amount of time. (See
ECF No. 145 at 5.) However, after the collision giving rise to this suit, Stone’s vehicle was
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apparently involved in another collision that caused further damage, and Stone allegedly failed to
disclose this fact to Defendant’s agent or the man who took photographs of her vehicle prior to
obtaining the rental vehicle. (Id. at 3-4.) Defendants argue Stone’s concealment of this fact
amounts to fraud. (Id. at 5-6.)
In response, Plaintiffs point out they are not seeking to recover damages relating to Stone’s
vehicle or any property damage for that matter, so Defendants’ rental car theory is ultimately
irrelevant. The Court doubts whether this theory of fraud amounts to an affirmative defense
because it would not avoid liability on Plaintiffs’ negligence claims; rather, it sounds like a
counterclaim. See Solis v. Wallis, No. 11 C 3019, 2013 WL 12447274, at *4 (N.D. Ill. Sept. 13,
2013). But this pleading defect does not ultimately doom Defendants. See id.; see also Fed. R.
Civ. P. 8(c)(2) (“If a party mistakenly designates . . . a counterclaim as a defense, the court must,
if justice requires, treat the pleading as though it were correctly designated . . . .”). Nor does the
pleading defect ultimately matter because, once again, Defendants fail to point to any evidence in
the record that could support many of the required elements of the alleged fraud.
As described above, Defendants’ theory is premised not on an affirmative
misrepresentation but on Stone’s concealment of a material fact, i.e., that certain damage to her
vehicle was caused by a subsequent accident. So Defendants’ theory is actually one of fraudulent
concealment, and again, under Illinois law, more is required of Defendants to prove fraudulent
concealment. Defendants must show:
(1) the concealment of a material fact; (2) the concealment was intended to induce
a false belief, under circumstances creating a duty to speak . . .; (3) the innocent
party could not have discovered the truth through a reasonable inquiry or
inspection, or was prevented from making a reasonable inquiry or inspection, and
relied upon the silence as a representation that the fact did not exist; (4) the
concealed information was such that the injured party would have acted differently
had he been aware of it; and (5) that reliance by the person from whom the fact was
concealed led to his injury . . . . [Defendants] must further demonstrate justifiable
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reliance, as well as the existence of a special or fiduciary relationship giving rise to
a duty to convey accurate information.
Schrager, 767 N.E.2d at 384 (quotations and citations omitted). At the very least, Defendants fail
to point to any evidence in the record showing that they relied on a mistaken belief about the
vehicle damage in providing Stone a rental vehicle. Indeed, the only evidence in the record on this
issue is Stone’s testimony that she talked to someone on the phone about a rental car and that she
saw a man taking photographs of her damaged car. That is it. There is no evidence regarding the
content of the phone conversation between Stone and Defendant’s agent. There is no evidence
showing what Defendant knew before providing the rental car or how Defendant made the decision
to provide a rental vehicle to Stone. This absence of evidence is enough, on its own, to warrant
summary judgment here. Even further though, Defendants do not show that they actually paid for
a rental vehicle or provided it to Stone (i.e., that Defendants were actually injured). Further still,
Defendants point to no evidence relating to the existence of a “special or fiduciary relationship”
between Defendants and Stone; Defendants also fail to address the “reasonable inquiry” element.
The latter failure is surprising, given that Defendants admit that Defendant Kilmer took
photographs of Stone’s vehicle just after the collision (and therefore, Defendants presumably had
the information needed to discover the truth about this issue). (See ECF No. 145 at 3.)
Defendants oppose summary judgment by explaining they will provide a representative at
trial who “will testify” on at least some of these issues. (Id. at 5-6.) This is insufficient. As Plaintiffs
point out, “[s]ummary judgment is the proverbial ‘put up or shut up’ moment in a lawsuit, when a
party must show what evidence it has that would convince a trier of fact to accept its version of
events.” Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020). Defendants contend
they learned about the subsequent collision involving Stone’s vehicle for the first time at her
deposition, in December 2019. (ECF No. 145 at 5.) So Defendants had ample time before fact
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discovery closed to develop support for this theory. As Plaintiffs point out in their reply,
Defendants did not do so. (See Reply, ECF No. 148 at 5, 9.) Defendants cannot escape summary
judgment now by speculating about testimony that may come out at trial.
Finally, in one sentence at the end of their response, Defendants ask the Court, in the
alternative, to permit them to amend their second affirmative defense to better allege the second
and third theories of fraud discussed above. (ECF No. 145 at 6; see also id., Exs. E and F (amended
versions of second affirmative defense).) “In considering a request to amend pleadings, the district
court has the discretion to deny the request if there is undue delay, bad faith, or dilatory motive, or
undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the
amendment.” Malone v. Am. Friends Ser. Comm., 213 F. App’x 490, 495 (7th Cir. 2007). Even if
the Court granted leave to amend, summary judgment would still be appropriate for the reasons
discussed above, so in other words, Defendants’ proposed amendments are futile. Sound of Music
Co. v. 3M, 477 F.3d 910, 923 (7th Cir. 2007) (affirming denial of leave to amend based on futility
where amended pleading would not survive a motion for summary judgment). Moreover, even if
by some chance Defendants have evidence to support their amended fraud allegations, they have
not described such evidence. To permit Defendants the chance to revisit the pleadings now, after
the close of fact discovery and summary judgment briefing, would unduly delay the resolution of
this case, especially where Defendants have no showing of good cause as to why they could not
have made their proposed amendments earlier. Accordingly, Defendants’ request to amend is
denied. See Ferguson v. Roberts, 11 F.3d 696, 706-07 (7th Cir. 1993).
4
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The Court need not address the Defendants’ opening argument that Plaintiffs’ motion should be denied as
an “ill-timed motion to strike.” (ECF No. 145 at 1-2.) Putting aside the fact that Defendants certainly fail
to allege their fraud defense with the particularity Rule 9(b) requires, see RBG Plastic, LLC v. Webstaurant
Store, No. 1:18-cv-5192, 2020 WL 7027601, at *4-6 (N.D. Ill. Nov. 30, 2020) (analyzing applicable
standard), Plaintiffs attack the sufficiency of the evidence supporting Defendants’ fraud defense. It is on
this basis that summary judgment is appropriate.
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CONCLUSION
For the foregoing reasons, the Court grants Plaintiff’s motion for summary judgment [141]
on the second affirmative defense. The Court sets a status hearing for January 29, 2021.
SO ORDERED.
ENTERED: January 8, 2021
______________________
HON. JORGE ALONSO
United States District Judge
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