Boehmisch v. AMS Services, LLC

Filing 65

ORDER granting 49 Motion for Partial Summary Judgment. See order for details. Signed by Judge David R. Herndon on 9/19/2018. (jer)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AARON BOEHMISCH,
Plaintiff,
vs.

No. 17-cv-399-DRH-RJD

AMS SERVICES, LLC,
Defendant.

MEMORANDUM and ORDER
HERNDON, District Judge:
I. Introduction
Pending before the Court is a motion for partial summary judgment
submitted by Defendant AMS Services, LLC (“Defendant” or “AMS”) on March 12,
2018 (Doc. 49). Plaintiff Aaron Boehmisch (“Plaintiff” or “Boehmisch”) offered on
March 16, 2018 a response in opposition of said motion (Doc. 50). For the
reasons set forth below, the Court GRANTS Defendant’s motion for partial
summary judgment.
II. Background
On April 17, 2017, Plaintiff filed his Complaint (Doc. 1) in this matter and
on April 20, 2017, Plaintiff filed his Amended Complaint (Doc. 6) naming
Defendant as the sole defendant. In his Amended Complaint, Plaintiff alleges that
on or about August 30, 2015, Plaintiff and AMS entered into an employment
contract (“the Contract”) that provided Plaintiff the opportunity to earn certain
Page 1 of 7

commissions (Doc. 6, Exhibit A). Plaintiff further alleges that AMS did not pay
Plaintiff his earned commissions as required by the Contract and Plaintiff “made
demands upon AMS to pay him his commission earned but AMS has not
complied with the terms of Exhibit A.” Id.
Thereinafter, on September 1, 2017, the Court entered a Scheduling and
Discovery Order that required dispositive motions to be filed by June 23, 2018
and set October, 2018 as the presumptive bench trial month (Doc. 26).
Thereinafter, on March 12, 2018, AMS filed a motion for partial summary
judgment (Doc. 49) arguing that the Attorneys Fees in Wage Actions Act (“Act”)
705 ILCS 225/1 relied on by Plaintiff to support his claim for attorneys’ fees does
not apply because Plaintiff did not make a demand sufficient to satisfy the Act.
The Act provides in part that “a demand was made in writing at least 3 days
before the action was brought.” § 225/1. Defendant contends that the Act does not
apply in this case because Plaintiff did not assert in his Original or Amended
Complaint that he made a written demand to AMS regarding earned wages before
initiating the present suit (Doc. 49). Additionally, Defendant argues that Plaintiff
has failed to provide any evidence to support his allegation that he emailed AMS a
written demand regarding earned compensation. Id.
Thereinafter, on March 16, 2018, Plaintiff filed a response (Doc. 50) to
AMS’ motion for partial summary judgment (Doc. 49) arguing that AMS’ motion
for partial summary judgment should be denied because the issue of spoliation of
evidence creates a genuine issue of material fact. First, Plaintiff alleges that while

Page 2 of 7

working for AMS he made demands for earned commissions by email to Mark
Duke and Lois Anderson, officers of AMS. Next, Plaintiff further alleges that AMS
“responded to Plaintiff’s Request for Production of Documents and produced a
disk allegedly containing all emails from Boehmisch’s work email account.
Plaintiff reviewed all emails on the disk and found that his written requests for
payments of commissions did not exist in the documents given to him.” (Doc. 50).
Finally, Plaintiff alleges that “Defendant AMS intentionally deleted portions of
Plaintiff’s email account together with emails requesting payment which was an
intentional spoliation of evidence.” Id.
III. Applicable Law
Summary judgment is appropriate only if the admissible evidence
considered as a whole shows there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Archdiocese of Milwaukee v.

Doe, 743 F.3d 1101, 1105 (7th Cir. 2014) (citing Fed. R. Civ. P. 56(a)). The party
seeking summary judgment bears the initial burden of demonstrating – based on
the pleadings, affidavits and/or information obtained via discovery – the lack of
any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A genuine issue of material fact remains “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); accord Bunn v. Khoury Enterpr.
Inc., 753 F.3d 676 (7th Cir. 2014).

Page 3 of 7

In assessing a summary judgment motion, the district court normally views
the facts in the light most favorable to, and draws all reasonable inferences in
favor of, the nonmoving party. Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir.
2012); Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v.

Richardson, 634 F.3d 895, 899 (7th Cir. 2011).

As the Seventh Circuit has

explained, as required by Rule 56(a), “we set forth the facts by examining the
evidence in the light reasonably most favorable to the non-moving party, giving
[him] the benefit of reasonable, favorable inferences and resolving conflicts in the
evidence in [his] favor.” Spaine v. Community Contacts, Inc., 756 F.3d 542, 544
(7th Cir. 2014).
IV. Analysis
At this stage, there are three primary issues to address: (1) whether
Plaintiff’s allegation regarding the existence of prior emails related to his claim
creates a genuine issue of material fact; (2) whether Plaintiff’s allegation regarding
the spoliation of evidence creates a genuine issue of material fact; and, (3)
whether AMS is entitled to judgment as a matter of law on Plaintiff’s claim for
attorneys’ fees under the Act. The Court shall address each in turn.
1. Plaintiff’s allegation regarding the existence of prior emails related to
his claim is not sufficient to create a genuine issue of material fact.
Plaintiff argues that Defendant’s motion for partial summary judgment
should be denied because the “issue of the prior existence of the emails requesting
Boehmisch’s commissions create a genuine issue of material fact.” (Doc. 50). In

Celotex, the Court explained that:
Page 4 of 7

[T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to the party’s case, and on which the
party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322.
Here, AMS has demonstrated there is no genuine issue of material
fact as it relates to the alleged existence of prior emails between AMS and
Plaintiff regarding Plaintiff’s earned commissions. After adequate time for
discovery, Plaintiff has failed to make a showing sufficient to establish the
existence of a prior demand to AMS made in writing at least three days
before this action was brought. Plaintiff alleges the existence of prior emails
but does not present any evidence to support his assertions and theories.
The Court cannot view the evidence in the light reasonably most favorable
to Plaintiff when there is no evidence – aside from bare assertions – to
support his position that there were prior written communications
regarding earned commissions between himself and AMS. Therefore, based
on the pleadings, affidavits and information obtained via discovery,
Plaintiff’s allegation regarding the existence of a prior written demand made
to AMS is not sufficient to create a genuine issue of material fact.
2. Plaintiff’s allegation regarding AMS’ spoliation of evidence is not
sufficient to create a genuine issue of material fact.
Plaintiff argues that Defendant’s motion for partial summary judgment
should be denied because the issue of AMS allegedly deleting emails related to
Plaintiff’s claim creates a genuine issue of material fact. In Celotex, the Court
Page 5 of 7

explained that “[o]ne of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or defenses . . . .” Celotex,
477 U.S. at 322-24.
Here, Plaintiff alleges that AMS “deleted important emails,” but again, does
not present any evidence to support his position (Doc. 50). Plaintiff’s spoliation
argument does not work because his allegation is based on supposition,
speculation, and conjecture with no evidence to support his theory. Therefore,
based on the pleadings, affidavits and information obtained via discovery,
Plaintiff’s allegation regarding AMS’ spoliation of evidence is not sufficient to
create a genuine issue of material fact.
3. AMS is entitled to judgment as a matter of law on Plaintiff’s claim for
attorneys’ fees under the Act.
AMS is entitled to judgment as a matter of law on Plaintiff’s claim for
attorneys’ fees under the Act because there is no evidence to support Plaintiff’s
assertion that he made a written demand to AMS at least three days before filing
the present suit. The Act provides:
Whenever a mechanic, artisan, miner, laborer, servant or employee
brings an action for wages earned and due and owing according to
the terms of the employment, and establishes by the decision of the
court or jury that the amount for which he or she has brought the
action is justly due and owing, and that a demand was made in
writing at least 3 days before the action was brought, for a sum not
exceeding the amount so found due and owing, then the court shall
allow to the plaintiff a reasonable attorney fee of not less than $10, in
addition to the amount found due and owing for wages, to be taxed as
costs of the action.
705 ILCS 225/1 (emphasis added).

Page 6 of 7

Here, the Act requires that a plaintiff make a written demand prior to
bringing an action for wages earned. As previously discussed, there is no
evidence to suggest Plaintiff made the requisite written demand. Therefore,
AMS is entitled to judgment as a matter of law on Plaintiff’s claim for
attorneys’ fees under the Act.

V. Conclusion
In sum, the Court concludes that Plaintiff has failed to make a sufficient
showing of the essential elements of his claim for attorneys’ fees under the Act.
The Court believes that summary judgment is appropriate here because the
record supports such a finding.
Accordingly, the Court finds that there are no genuine issues of material
fact and GRANTS Defendant’s Motion for Partial Summary Judgment. Plaintiff’s
claim for attorneys’ fees under the Act is DISMISSED, WITHOUT PREJUDICE.
IT IS SO ORDERED.

Judge Herndon
2018.09.19
10:28:28 -05'00'
United States District Judge

Page 7 of 7