Off-the-record Telephonic Conference

Properly prepared motions for summary judgment require considerable Court and attorney time and client expense. Sometimes such motions are unnecessarily filed. A careful examination of the record prior to filing may reveal contested factual issues making the granting of the motion impossible.

In many cases after fact discovery has closed, it is helpful for the Court to hold an informal, off-the-record discussion with the lead attorneys of the parties to discuss whether the filing of a summary judgment motion is advisable given the state of the record. No written submissions should be made prior to the conference. The party who wishes to seek summary judgment should be prepared to point out the uncontested facts that support the relief being sought, and the opposing party should be prepared to speak to whether in fact those facts are contested. This conference should be scheduled with the Courtroom Deputy before any substantive work is done preparing the motion. No party will ever be prevented from filing a dispositive motion, but the goal of the in-chambers conference is to have a careful, informed discussion of the issues before significant time and expense have been incurred.

In some cases, the Court may determine that an in-chambers conference would not be helpful.  Parties, however, should always inquire with the Court prior to filing a summary judgment motion.

Parties should consider Smith v. OSF HealthCare System, 933 F.3d 859 (7th Cir. 2019), before seeking leave to file a motion for summary judgment prior to the close of discovery.

Guidelines for Motions for Summary Judgment

The Court requires strict compliance with Local Rules 56.1(a) and 56.1(b) in the briefing of all summary judgment motions.  In addition, to assist the Court in reviewing the factual record submitted in connection with summary judgment motions, the Court requires the following:

All statements of undisputed material facts offered by the moving party under Local Rule 56.1(a)(2), or statements of additional facts offered by the opposing party under Local Rule 56.1(b)(3), must list the facts in short, numbered paragraphs that refrain from argument.  Argument must be reserved for the moving party’s memorandum of law.  Each numbered fact statement must contain a specific citation to affidavits, depositions or other materials that support the fact statement, as well as to the tab(s) in the compendium where those materials may be found.  Failure to provide support for a statement of fact may result in that alleged "fact" being disregarded.   Friend v. Valley View Community Unit School Dist. 365U, 789 F.3d 707, 710-11 (7th Cir. 2015).

All responses to statements of undisputed material facts offered by the opposing party under Local Rule 56.1(b)(2), or responses to statements of additional facts offered by the moving party under Local Rule 56.1(c)(2), shall be in a format similar to that used in answering a complaint: that is, the response must repeat each numbered paragraph of the fact statement, and then immediately following each numbered statement must state whether the alleged fact is "undisputed" or "disputed."  As with the fact statements submitted under Local Rules 56.1(a)(2) and 56.1(b)(2), the responses to those fact statements must refrain from argument.  The significance or lack of significance of a disputed or undisputed fact may be argued in the respondent’s legal memorandum.  If a particular fact is "undisputed," nothing more should be said in the response.  If a particular fact assertion is "disputed" in whole or in part, the response must state what part of the assertion is disputed and must contain a specific citation to the supporting affidavits, depositions or other materials as well as to the tab(s) in the compendium where those materials may be found.  Failure to provide support for an alleged fact dispute may result in that fact being deemed admitted.   Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218-19 (7th Cir. 2015).

In accord with Local Rule 56.1(d)(5), absent prior leave of Court, a movant shall not file more than 80 separately numbered statements of undisputed material fact, and a party opposing a summary judgment motion shall not file more than 40 separately numbered statements of additional facts.  The Court reminds parties that the fact statements under Local Rule 56.1(a)(2) and Local Rule 56.1(b)(3) “must consist of concise numbered paragraphs.”

Deposition Testimony

Parties submitting deposition transcripts in support of or in opposition to summary judgment must file electronically the entire transcript for each deposition. Parties are not to submit the entire transcript with their courtesy copies, but only the excerpted pages referenced in the party's motion papers. If at all possible, deposition transcripts, whether submitted in their entirety or in excerpted form, should be submitted in the condensed transcript format where multiple deposition transcript pages are reduced to one page. All submissions to the Court should be printed on both sides of the paper and included the ECF heading.

Motions to Strike are Disfavored

Motions to strike are strongly disfavored.  See generally Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir. 2006).  They serve primarily as unauthorized vehicles for parties to expand the page limits for memoranda in support of their motions.  Motions to strike almost always would require the Court to decide significant issues (and, indeed, the underlying motion) on the merits and would multiply the briefs (because the other side should be allowed to respond).  Id. at 727. 

The Court is capable of discerning if a reply brief raises a new argument, or if a litigant has failed to comply with the requirements of Local Rule 56.1 (governing summary judgment).  Such errors do not require supplemental motion practice.  

If a party believes that the other side’s brief contains inaccurate facts or that the other side’s Local Rule 56.1 statement contains an unsupported assertion, then the complaining party should make that argument in the response or reply brief, or in the responsive 56.1 statement.  Motions to strike that are not within the limited boundaries established by Fed. R. Civ. P. 12(f) may be summarily denied.