Sambrooks et al v. Choiseme et al

Filing 63

OPINION AND ORDER denying as MOOT 42 Motion to Strike ; granting 34 Motion for Partial Summary Judgment. The Plaintiffs claims against Defendant, Transervice Lease Corp. d/b/a Transverse Lease Corp., are hereby DISMISSED WITH PREJUDICE. Additionally, the claims for reckless and willful and wanton conduct (for punitive damages) are DISMISSED WITH PREJUDICE. The remaining claims in the complaint REMAIN PENDING. Finally, Plaintiffs request for additional discovery pursuant to Fed. R. Civ. P. 56(d) is DENIED. Signed by Judge Rudy Lozano on 2/25/15. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TAMMY SAMBROOKS, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
CLAUDE CHOISEME, et al.,
Defendants.

No. 2:12-CV-102

OPINION AND ORDER
This matter is before the Court on the: (1) Defendants’ Motion
for Partial Summary Judgment, filed by Defendants, Claude Choiseme,
Walgreen-Oshkosh Inc., d/b/a Walgreen Co., and Transervice Lease
Corp., d/b/a Tranverse Lease Corp., on May 7, 2014 (DE #34); and
(2) Motion to Strike Certain Exhibits Designated By Plaintiffs,
filed by Defendants, Claude Choiseme, Walgreen-Oshkosh Inc., d/b/a
Walgreen Co., and Transervice Lease Corp., d/b/a Tranverse Lease
Corp., on June 6, 2014 (DE #42).

For the reasons set forth below,

the Motion to Strike (DE #42) is DENIED as MOOT.

Defendants’

Motion for Partial Summary Judgment (DE #34) is GRANTED.

The

Plaintiffs’ claims against Defendant, Transervice Lease Corp. d/b/a
Transverse

Lease

Corp.,

are

hereby

DISMISSED

WITH

PREJUDICE.

Additionally, the claims for reckless and willful and wanton
conduct (for punitive damages) are DISMISSED WITH PREJUDICE. The
remaining

claims

in

the

complaint

REMAIN

PENDING.

Finally,

Plaintiffs’ request for additional discovery pursuant to Fed. R.
Civ. P. 56(d) is DENIED.

BACKGROUND
This litigation arises from a motor vehicle accident which
occurred on May 14, 2010, on southbound US 41 in St. John, Lake
County, Indiana, between Defendant, Claude Choiseme (hereinafter
“Choiseme”

and

“Sambrooks”).

Plaintiff,

Tammy

Sambrooks

(hereinafter

Defendants moved for partial summary judgment,

arguing they are entitled to judgment as a matter of law on the
claims against Defendant, Transervice, and on all the claims for
reckless, willful, and wanton conduct against all the Defendants.
(DE #34).

Plaintiffs filed a response memorandum on May 23, 2014

(DE #41), and Defendants filed a reply on June 6, 2014 (DE #44).
Therefore, this motion is fully briefed and ripe for adjudication.
Additionally, Defendants filed a motion to strike certain exhibits
designated by Plaintiffs (DE #42).

Plaintiffs failed to file a

response to the motion to strike Plaintiffs’ Exhibits A, E, and F,
which Defendants argue are not admissible for the purpose of ruling
on this motion because they are not authenticated.

DISCUSSION
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil

2

Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In other words, the record
must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d 332, 335 (7th
Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). In deciding a motion for summary judgment, a court must
view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; NUCOR Corp. v. Aceros Y Maquilas De
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of,
“the

pleadings,

depositions,

answers

to

interrogatories,

and

admissions on file, together with the affidavits,” if any, that the
movant believes, “demonstrate the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. Once the movant has met
this burden, the nonmovant may not rest upon mere allegations, but
must set forth specific facts showing that there is a genuine issue
for trial. Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107,
110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875
F.2d 613, 620 (7th Cir. 1989). “Whether a fact is material depends
on the substantive law underlying a particular claim and ‘only
disputes over facts that might affect the outcome of the suit under
3

governing

law

will

properly

preclude

the

entry

of

summary

judgment.’” Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988)
(emphasis in original) (citing Anderson, 477 U.S. at 248).
“[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial.” Beard v. Whitley Cnty. REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate. In this situation,
there can be, “‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the
nonmoving

party’s

case

necessarily

renders

all

other

facts

immaterial.” Celotex, 477 U.S. at 323.
In a diversity case, like this action brought under 28 U.S.C.
§ 1332, this Court applies Indiana state substantive law and
federal procedure.

See, e.g., Erie v. Tompkins, 304 U.S. 64, 78

(1938); Hanna v. Plumer, 380 U.S. 460, 465 (1965); Trytko v.
Hubbell, Inc., 28 F.3d 715, 719-20 (7th Cir.1994)(citing Kutsugeras
v. AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992)).

Motion to Strike
4

The Defendants filed a Motion to Strike Plaintiffs’ Exhibits
A, E, and F, which are not authenticated. Plaintiffs’ Exhibit A is
the Indiana Standard Crash Report (DE #40-1); Plaintiffs’ Exhibit
E is the USDOT Safety Measurement System Carrier Overview (DE #405); and Plaintiffs’ Exhibit F is the USDOT Safety Measurement
System Inspection Report (DE #40-6). Plaintiffs did not respond to
the motion to strike.
Motions to strike are heavily disfavored, and usually only
granted

in

circumstances

where

the

contested

evidence

causes

prejudice to the moving party. Kuntzman v. Wal-Mart, 673 F.Supp.2d
690, 695 (N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05CV-303, 2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007).

As

discussed

by

Plaintiffs

below,

even

(including

considering

the

unauthenticated

evidence
Exhibits

set
A,

E,

forth
and

F),

partial summary judgment is still appropriate, and this Court
prefers to rule upon all the evidence before it.

Therefore, the

motion to strike (DE #42) is DENIED AS MOOT.

Motion For Partial Summary Judgment
Undisputed Facts
The two vehicles involved in the accident were Plaintiff’s
vehicle and a semi-tractor trailer operated by Choiseme, owned and
maintained by Defendant, Transervice Lease Corporation (hereinafter
“Transervice”), and leased to Defendant Walgreen-Oshkosh, Inc.

5

(“Walgreen”).

Plaintiff alleges she was stopped at a red traffic

light and that Choiseme rear-ended her vehicle.

(DE #1, ¶¶ 5,8.)

Sambrooks testified she was on her way to K-Mart in St. John,
Indiana, heading southbound on US 41.

(Sambrooks Dep., p. 30.)

She was stopped behind another semi tractor-trailer waiting for the
light to turn green, when all of a sudden she heard glass breaking
and the sounds of the collision.

(Id.)

She could not recall any

conversations at the scene with the other driver or investigating
police officer.

(Id., pp. 31-32.)

She did not have personal

knowledge regarding the speed at which Choiseme was traveling.
(Id., pp. 78-79.)
Choiseme admits that the accident occurred when he was driving
southbound on US 41 and when the car in front of him stopped, and
he “was unable to avoid striking the rear of her vehicle.” (Defs.’
Ex. A, No. 15.)

However, Choiseme alleges the collision occurred

because Sambrooks’ vehicle in front of him stopped. (Id.) This is
somewhat different than the narrative in the police report, which
reads that Choiseme “thought the traffic was moving.

He realized

the vehicles were stopped and hit the brake but could not stop in
time and hit vehicle #2.
(DE #40-1.)

He thought the traffic light was green.”

The listed speed limit was 45 miles per hour, and was

approaching a lower speed zone of 35 mph.
DE #40-2, p. 2.)

(Casassa Expert Report,

Although there is no direct evidence how fast

Choiseme was traveling before the collision, Plaintiffs’ expert has

6

opined that he was traveling at least 50 mph before he applied the
brakes.

(Id., p. 4.)

At the time of the accident, Choiseme was operating a 1999
International semi-tractor/trailer combination leased by Walgreen
from Transervice.

(Defs.’ Am. Answer, ¶ 6.)

The arrangement

between Defendants arose out of a Labor Services Agreement and an
Equipment Leasing and Maintenance Agreement (“leasing agreement”).
(Defs.’ Exs. C, D.)

Transervice was the owner and lessor of the

equipment and Walgreen was the lessee of equipment.

Id. Under the

terms of the leasing agreement, Walgreen did not have exclusive
possession and control of the equipment and, in addition to its
maintenance obligations, Transervice supplied all of the fuel
required to operate the equipment while Choiseme drove it.

Id.

Defendants have admitted that Choiseme was negligent and was
at fault for the collision with Sambrooks, but Defendants deny any
more egregious conduct.
Police

Commercial

regarding

the

(DE #28; DE #32.)

Enforcement

equipment’s

Division

braking

The Indiana State

found

system.

no

violations

(Defs.’

Ex.

B.)

Choiseme was cited for violating several trucking regulations - 49
C.F.R. § 392.2D (local law violation - speed too fast to avoid a
collision), 49 C.F.R. § 395.8(k)(2) (failure to retain a copy of
his driver logs for the previous seven days), and 49 C.F.R. §
395.8(f)(1) (failure to keep his driver log current on the day of
the

collision).

(Indiana

State

7

Police

Commercial

Vehicle

Enforcement Report, Defs.’ Ex. B.)

Whether Transervice Is Entitled To Judgment As A Matter Of Law
On All Of Plaintiffs’ Claims
Defendants argue Transervice is entitled to summary judgment
because it merely owned the equipment being operated by Choiseme at
the time of the accident, maintained the equipment, and leased the
equipment to Walgreen. (DE #35, p. 4.) Defendants cite to Johnson
v. Motors Dispatch, Inc., 360 N.E.2d 224 (Ind. Ct. App. 1977), in
support of the proposition that summary judgment is warranted
because Transervice had no control or right to control the driver’s
operation of the equipment. That case provided for the possibility
of multiple employers to be liable for the negligence of borrowed
servants when there is “mixed control” over the driver by both the
lessor and lessee.

Id. at 229.

In Johnson, an equipment lessor,

EEZ, leased its equipment to a lessee, Jones, who employed a
driver, Moore, and then subsequently leased the equipment to
another lessee, Motor Dispatch, pursuant to a trip lease, after
which the driver Moore was then involved in a collision with
another

motorist

while

hauling

cargo

for

Motor

Dispatch.

Plaintiffs sued several parties, including the lessor of the
equipment, EEZ.

Id. at 225.

The Court affirmed the grant of

summary judgment to the lessor, EEZ, because there was no genuine
issue of fact as to whether EEZ had a right to control the driver.
Id. at 229-30.
8

This case differs from Johnson because there are no dual
lessees.

Yet, it does involve the similar issue of potential dual

possession, control, and operation under the Federal Motor Carrier
Safety Regulations. Moreover, like in Johnson, Transervice had no
control over the driver, Choiseme, or right to control Choiseme’s
driving activities.
Plaintiffs argue Transervice had some level of possession and
control of the equipment, and was therefore responsible for the
operation of the equipment. Additionally, they contend the leasing
agreement between Transervice and Walgreen does not comply with the
Federal Motor Carrier Safety Regulations because it does not state
that Walgreen had exclusive possession, control and use of the
equipment for the duration of the lease.

(DE #41, p. 5-8.)

To the

contrary, the lease does state:
The Sublessee [Walgreen], during the term of the
lease, shall have exclusive possession and control
of said equipment to the exclusion of the Lessee
[Berkeley Leasing corp. n/k/a/ Transervice],
except, however, that the Lessee shall have the
right to custody or possession of such equipment
for any time reasonably necessary to effect repairs
or to perform his obligation in relation to
maintenance; Sublessee shall make such equipment
available at reasonable intervals for inspection by
Lessee.
(DE

#36-4,

¶

4,

p.

16.)

The

Federal

Motor

Carrier

Safety

Regulations cited by Plaintiffs, 49 C.F.R. § 376.12(c)(1), is
silent as to whether the lessor or lessee of equipment is required
to maintain the leased equipment; therefore, there does not seem to

9

be anything improper about Transervice retaining the right to
temporarily possess the equipment to do maintenance or repairs.
Defendants are correct in their analysis that if the Court were to
adopt Plaintiffs’ position that Transervice’s limited possession of
the equipment for maintenance purposes would subject Transervice to
liability resulting from the negligent operation of the equipment,
then the language of 49 CFR 376.12, which requires that the lessee
have exclusive possession, control, and use of the equipment for
the duration of the lease, would have no effect on the imposition
of liability in the event of an accident.

Section 376.12 clearly

states the motor carrier with whom exclusive possession rests has
the responsibility for the operation of the equipment under the
federal regulations.

Illinois Bulk Carrier, Inc. v. Jackson, 908

N.E.2d 248, 256-57 (Ind. Ct. App. 2009).

In this case, it is

undisputed that Transervice did not have possession or custody of
the equipment at the time of the accident, that Choiseme was
operating the equipment under Walgreen’s operation authority, that
Walgreen had exclusive possession of the equipment, and that
Walgreen had the ultimate responsibility for the operation of the
equipment.
Because the undisputed evidence is that the cause of the
accident was due to the negligent operation of the equipment by
Choiseme, and not as a result of any failure or breach of duty on
Transervice’s part to maintain the vehicle in proper working order,

10

there is no genuine issue of material fact on the issue of
Transervice’s

negligence

or

breach

of

duty.

Therefore,

Transervice, as the owner and lessor of the equipment, is entitled
to judgment as a matter of law.
Whether Defendants Are Entitled To Judgment As A Matter Of Law
On Plaintiffs’ Allegations Of Reckless, Willful and Wanton
Conduct
Defendants contend that although Choiseme’s conduct may be
negligent, there is no evidence to create a question of fact
regarding whether he was reckless, willful, or wanton. (DE #35, p.
6.)

Thus, they request dismissal of the punitive damages claims

against all defendants.
A principal goal of punitive damages is to serve the public
interest by deterring wrongful conduct in the future by the
wrongdoer and others similarly situated.

Neuros Co., Ltd. v.

KTurbo, Inc., 698 F.3d 514, 520 (7th Cir. 2012).

There is no right

to punitive damages. Travelers Indem. Co. v. Armstrong, 442 N.E.2d
349, 362 (Ind. 1982).

“Whether a party may recover punitive

damages is usually a question of fact for the fact finder to
decide; but it may be decided as a matter of law.”

Williams v.

Younginer, 851 N.E.2d 351, 358 (Ind. Ct. App. 2006) (quotation
omitted).

A court may grant summary judgment to resolve punitive

damages claims.

Breeck v. City of Madison, 592 N.E.2d 700, 703

(Ind. Ct. App. 1992).
Under Indiana law:
11

[P]unitive damages may be awarded only if there is
clear and convincing evidence that the defendant
acted with malice, fraud, gross negligence, or
oppressiveness which was not the result of mistake
of fact or law, honest error or judgment,
overzealousness, mere negligence, or other human
failing.
Hi-Tec Props., LLC v. Murphy, 14 N.E.3d 767, 778 (Ind. Ct. App.
2014) (quotation omitted).

To award punitive damages:

[The court] would have to conclude that under the
known circumstances, the defendant, ‘subjected
other persons to probable injury, with an awareness
of such impending danger and with heedless
indifference of the consequences,’ that is a
serious wrong, ‘tortious in nature,’ has been
committed, and that the public interest would be
served by the deterrent effect of punitive damages.
Tacket v. General Motors Corp. Delco Remy Div., 818 F.Supp. 1243,
1246

(S.D.

Ind.

1993)(quoting

Bud

Wolf

Chevrolet,

Inc.

v.

Robertson, 519 N.E.2d 135, 136-37 (Ind. 1988)).
Indiana case law does not support the issuance of punitive
damages on defendants involved in vehicle collisions that were
merely negligent, without evidence of the additional mental state
of malice or wantonness.

See, e.g., Karpov v. Net Trucking, Inc.,

No. 1:06-cv-195-TLS, 2011 WL 6056618, at *5 (N.D. Ind. Dec. 5,
2011) (punitive damages appropriate where driver of fully loaded
tractor trailer went above the speed limit in a construction zone,
with alcohol in his system at the time of the accident); but see
State v. Boadi, 905 N.E.2d 1069, 1075 (Ind. Ct. App. 2009) (holding
“the failure to stop at a red light due to inadvertence or an error
of judgment, without more, does not constitute recklessness as a
12

matter of law”); Westray v. Wright, 834 N.E.2d 173, 180-81 (Ind.
Ct. App. 2005) (holding defendant not grossly negligent because,
inter alia, there was no evidence he was “drowsy, intoxicated, or
otherwise affected by any foreign substance”); Purnick v. C.R.
England, Inc., 269 F.3d 851, 852-53 (7th Cir. 2001)(affirming
summary judgment, finding evidence that driver falsified his logs
to hide amount he had driven the week before the accident, was
“mesmerized” by the road, and failed to brake his tractor-trailer,
was insufficient to prove a mental state necessary to sustain
punitive damages because there was no proof he knew his actions
would probably cause harm); Austin v. Disney Tire Co., Inc., 815
F.Supp. 285, 288-90 (S.D. Ind. 1993)(granting summary judgment on
punitive

damages

issue

where

defendant

glanced

down

while

approaching an intersection, finding evidence of driver’s “lack of
skill” does not lead to an inference that the driver acted with
conscious disregard for danger); Samuel v. Home Run, Inc., 784 F.
Supp. 548 (S.D. Ind. 1992)(granting partial summary judgment on
punitive damages issue where plaintiff failed to show clear and
convincing evidence that the conduct was wanton).
In Miller, the Court of Appeals of Indiana held that the
defendant, operating a company-owned vehicle, after stopping at a
stop sign, proceeding into the intersection, and then colliding
with a passing vehicle, was not grossly negligent.

Miller v.

Indiana Dept. of Workforce Dev., 878 N.E.2d 346, 357 (Ind. Ct. App.

13

2007).

Specifically, the court found that the defendant was

negligent, but there was no evidence he “engaged in any sort of
conduct with reckless disregard.”

Id.

“Plainly stated, courts

applying Indiana law have routinely held that lousy driving,
without more, does not warrant punitive damages.” Powell v. United
Parcel Service, Inc., No. 1:08-cv-1621-TWP-TAB, 2011 WL 836949, at
*3 (S.D. Ind. Mar. 4, 2011).
Even construing the facts in a light most favorable to
Defendants and drawing all legitimate inferences in their favor, as
this Court must at this summary judgment stage, as a matter of law,
punitive damages are not warranted.

Even considering Plaintiffs’

expert’s opinion that Choiseme was traveling 50 mph when the posted
speed limit was 45 miles per hour, the Court does not believe this
slight increment of speeding is indicative of engaging in reckless
disregard.

Similarly, whether Choiseme believed the light was

green and thought the traffic was moving, or he just couldn’t stop
before colliding with Sambrooks’ vehicle, they are both merely
examples of inadvertence, or error in judgment, and do not show
recklessness or willful and wanton behavior.
In Purnick, the Court found punitive damages could not be
awarded in somewhat similar circumstances, but even more egregious
than this case.

Purnick, 269 F.3d 851.

In that case, the

plaintiff presented evidence that the truck driver had falsified
his logs and driven beyond the ten-hour limit several times in the

14

week before the accident, arguing this led him to be fatigued.
at 852.

Id.

The Court found this did not justify punitive damages

because Plaintiff could not present any evidence the truck driver
“actually knew that he was so tired that continuing to drive would
likely cause injury,” Id. at 853.

Here, Plaintiffs contend that

because Choiseme was cited for not retaining a copy of his logs for
the previous seven days and not keeping his log current on the day
of the collision, that would imply that Choiseme was not credible
and that he was fatigued at the time of the accident.

(DE #41, p.

13-14.) Whether Choiseme was fatigued at the time of the collision
is unsupported speculation, and, like in Purnick, there is no
actual evidence in the record that Choiseme was indeed fatigued at
the time of the accident, and that he knew he was so tired that
driving would likely cause injury.

Purnick, 269 F.3d at 853.

The

one-day’s driver’s log attached as an exhibit to Plaintiffs’
memorandum (DE #40-3) shows Choiseme was off duty the night before
the accident, and that he had only been driving for one and a half
hours total the day prior to the accident.
Additionally, the other driver logs for the 7 days before the
incident were not requested by Plaintiffs until almost 2 years
after the logs were destroyed by Walgreen, thus the other daily
driver logs do not raise a question of fact as to whether Choiseme
was so fatigued at the time of the accident he knew he would cause

15

harm.1

Plaintiffs’ reliance upon Dylak v. State is misplaced, as

that case involved the criminal prosecution of a truck driver for
reckless homicide, where there was substantive evidence the driver
was fatigued at the time of the collision.

Dylak, 850 N.E.2d 401,

405 (Ind. Ct. App. 2006). In Dylak, the evidence showed the driver
exceeded the 70 hour rule (a semi truck driver cannot exceed 70
hours of on duty time in a period of 8 days), that in the week
prior to the accident, on three separate days, the driver violated
the 10 hour rule (a driver may only drive 10 hours, then must not
work for 8 hours), and the truck driver told the investigating
police officers at the scene he was “tired and that he was going to
rest.”

Id. at 405.

In this case, Plaintiffs have failed to

designate any such facts to support any such inference that
Choiseme was fatigued.
In this case, the Court finds that, as a matter of law,
Plaintiffs

have

failed

to

put

forth

“sufficient

direct

or

circumstantial evidence of [Choiseme’s] state of mind to conclude
that [he] recognized the danger and consciously disregarded it.”
Samuel, 784 F. Supp. at 550.

Nothing in the record indicates that

Choiseme acted purposefully, with malice or wantonness, or that he
was driving while impaired.

There is no evidence which supports

that Choiseme knew of, but consciously disregarded, the possibility
1

The FMCSR require that a motor carrier maintain records of
duty status and supporting documentation for each driver for a
period of six months. 49 C.F.R. 395-8(k).
16

that his actions would result in a collision with Sambrooks’
vehicle.

Plaintiffs have not carried their burden of showing, by

clear and convincing evidence, that Choiseme acted with malice,
fraud, gross negligence, or oppressiveness.

Hi-Tec Props., 14

N.E.3d at 778; see also Samuel, 784 F.Supp. at 550 (“Indiana
requires

that

punitive

damages

be

supported

by

‘clear

convincing evidence’ of the malfeasor’s state of mind.”).

and

Because

Plaintiffs have failed to produce sufficient evidence from which a
rational trier of fact could impose punitive damages, summary
judgment is warranted on those claims.
Finally, Plaintiffs state that to the extent disputed factual
issues are not evident based on the present record, they request
leave to engage in additional discovery about the driver’s logs to
respond to the Defendants’ motion for partial summary judgment. (DE
#41, pp. 15-21.)

Federal Rule of Civil Procedure 56(d) provides

that “[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or deny
it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” Fed. R. Civ.
P. 56(d).

If Plaintiffs needed additional discovery to oppose

summary judgment, they should have filed a motion under Federal
Rule of Civil Procedure 56(d), supported by an affidavit or
declaration,

explaining

why

they

17

could

not

present

evidence

essential to their opposition.

Simmons v. McCulloch, 546 Fed.

Appx. 579, 583 (7th Cir. 2013) (citing Edgenet, Inc. v. Home Depot
U.S.A., Inc., 658 F.3d 662, 665 (7th Cir. 2011); Deere & Co. v.
Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006)); see also Fed. R.
Civ. P. 56(d).

Defendants should have filed a separate Rule 56(d)

motion if they believed a continuance was necessary, and submitted
an affidavit explaining why the additional discovery was needed.
Defendants failed to file a separate motion seeking such relief,
supported by affidavit or declaration, and their request for
additional discovery in their response memorandum is procedurally
inappropriate, and DENIED.

CONCLUSION
For the reasons set forth above, the Motion to Strike (DE #42)
is DENIED as MOOT. Defendants’ Motion for Partial Summary Judgment
(DE #34) is GRANTED.

The Plaintiffs’ claims against Defendant,

Transervice Lease Corp. d/b/a Transverse Lease Corp., are hereby
DISMISSED WITH PREJUDICE.

Additionally, the claims for reckless

and willful and wanton conduct (for punitive damages) are DISMISSED
WITH PREJUDICE. The remaining claims in the complaint REMAIN
PENDING.

Finally, Plaintiffs’ request for additional discovery

pursuant to Fed. R. Civ. P. 56(d) is DENIED.
DATED: February 25, 2015

/s/ RUDY LOZANO, Judge
United States District Court

18