Opinion
No. 99 C 6413
June 20, 2000
MEMORANDUM OPINION AND ORDER
William Waffer ("Waffer") sues Indian Creek Ranch Club, Inc. ("Indian Creek"), Indian Creek board of directors members Herbert Temper ("Temper"), Matthew Skwarczek ("Skwarczek"), Loire Herman ("Herman"), Norma Phillips ("Phillips"), Barbara White ("White"), Donald Zack ("Zack"), Guy Stewart ("Stewart"), Michael Cecich ("Cecich"), Loretta Hanson ("Hanson") (collectively "the board"), and Indian Creek member James McCarthy ("McCarthy") for denial of the right to contract free from racial discrimination in violation of 42 U.S.C. § 1982 and for breach of contract. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56.
BACKGROUND
A. Local Rule 56.1
Before discussing the facts, the court must address the effect of Waffer's failure to comply with Local Rule 56.1 for the Northen District of Illinois in responding to defendants' motion for summary judgment. Local Rule 56.1 requires litigants to follow detailed procedures in filing and responding to summary judgment motions. Local Rule 56.1(a)(3) requires the moving party to file a statement of undisputed material facts entitling it to judgment as a matter of law. Rule 56.1(b)(3)(A) a party opposing summary judgment to provide "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Waffer did not file a Rule 56.1(b)(3)(A) response. This failure results in the binding admission of the truth of defendants' Rule 56.1(a)(3) factual statements. Local Rule 56.1(b)(3)(A); Giannopoulos v. Brach, 109 F.3d 406, 411 (7th Cir. 1997). Although this admission does not inevitably require granting summary judgment against Waffer, it severely penalizes him by requiring the court to "depart from [its] usual posture of construing all facts in favor of the non-moving party." Johnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th Cir. 1994). Instead, the court will not consider any facts contradicting defendants' Rule 56.1(a)(3) statement. Smith v. Severn, 129 F.3d 419, 425-26 (7th Cir. 1997). However, the court must still view facts in the Rule 56.1(a)(3) statement and all reasonable inferences in the light most favorable to Waffer. Id.
B. Facts
Indian Creek owns and operates a private camping club in Morris, Illinois. Waffer, a black male, became a member of Indian Creek in September 1992. On October 28, 1996, Indian Creek's grievance committee sent a letter to Waffer requesting his attendance at the November 16, 1996 meeting of the board to address complaints by members about his German Shepard dog. Waffer received notice of the meeting, but did not attend.
On December 4, 1996, the board sent a letter to Waffer regarding his failure to attend the November 16 meeting. The letter advised Waffer that the board resolved to prohibit his dog from the campground until Waffer attended the next board meeting on December 14. The letter also included a copy of the board's rules and regulations. Waffer's response to the letter stated he did not receive the letter until January 21, 1997, and that he would not attend any meeting conducted in a way that violated due process. Apparently, Waffer was unwilling to attend board meetings until he was provided with details about the complaints against his dog so that he could adequately defend himself against the complaints.
On February 8, 1997, the board sent Waffer a letter requesting his attendance at the March 15 board meeting to discuss the dog complaints. Waffer received the letter and responded that he would not attend any board meetings concerning complaints about his dog. On February 27, Waffer's counsel requested specifics of the complaints about the dog, a copy of grievance committee procedures, and all minutes of previous board meetings addressing complaints against Waffer's dog. Waffer attended the March 15 board meeting. No one at the meeting used racial epithets toward Waffer. In April 1997, the board rescinded its prohibition against Waffer's dog on the campgrounds and permitted the dog on the grounds.
In December 1997, Waffer received a bill for his 1998 membership dues. On December 15, Waffer sent the board a letter requesting that the board waive dues because he incurred expenses connected to the dispute surrounding his dog. Waffer sent another letter on December 20 stating that because the board barred his dog from the campgrounds for four months, he intended to withhold the first installment of his 1998 dues pending resolution of credit for that period by an outside mediator agreed to by both parties. On December 22, the board's attorney notified Waffer that the issues raised in his December 15 letter would be addressed at the board's January 12, 1998 meeting and that Waffer's 1998 dues were due on January 10, 1998. Waffer apparently issued a check for $333 to Indian Creek on January 2, 1998 for the first installment of his 1998 dues (the check was mistakenly dated January 2, 1997). However, the check was dishonored by Waffer's bank for insufficient funds.
On March 18, 1998, the board sent notice to Waffer that the check had been dishonored and that because of late fees and bank charges, Waffer now owed $428 in membership dues. The notice advised Waffer that he would be subject to expulsion under Article II of Indian Creek's by-laws if he failed to promptly pay all dues and late charges. Article II, § 9(A)(3) of Indian Creek's by-laws provides that a member may be expelled if dues, assessments, lease fees, or other indebtedness remain unpaid for thirty days after written notice. Waffer received a copy of the by-laws when he became a member of Indian Creek. On April 28, 1998, the board sent a letter to Waffer advising him that he still owed his first dues installment and that the second installment of $331.67 was due on May 1, 1998. The letter stated Waffer would be subject to expulsion if the outstanding dues were not paid in full within thirty days. Waffer acknowledged receipt of the April 28 letter on April 30, and notified the board that the April 28 letter would be forwarded to his attorneys.
On June 12, 1998, the board sent notice to Waffer that his expulsion would be discussed at the board's meeting on June 20, 1998. On June 20, the board unanimously voted to expel Waffer from membership for nonpayment of dues. On June 22, the board sent Waffer a letter notifying him of his expulsion; Waffer received the letter. The letter stated that if Waffer failed to remove his property from the campgrounds by July 2, 1998, he would be charged a storage fee of $10 per day according to the by-laws. The letter also informed Waffer of his right to seek reinstatement under the by-laws. Article II, § 10(A) provides that an expelled member may apply for reinstatement by submitting a written request to the board within thirty days of expulsion; all fees, assessments and arrearages must be paid in full at the time of the request.
On July 6, 1998, Indian Creek's attorney sent Waffer's attorney a letter stating Waffer's 1998 dues remained unpaid. On July 20, Waffer's attorney sent Indian Creek's attorney a check for $1,090 for Waffer's outstanding 1998 dues. Waffer did not wish to seek reinstatement and he never submitted a request for reinstatement. Rather, he wished only to sell his interest in the campsite and attachments, improvements, and personal property. Article II, § 8 of Indian Creek's by-laws provides that transfer requests may not be made until all dues, assessments, contract payments, and other charges have been paid in full.
DISCUSSION
I. SUMMARY JUDGMENT STANDARDS
A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P.56 (c); Celotex Corp. v. Catrett, 477 U.S. 317., 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). A genuine issue of material fact exists when "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); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Co., 475 U.S. 574, 586 (1986).
II. SECTION 1982 CLAIM
Waffer asserts defendants violated 42 U.S.C. § 1982 by intentionally misusing Indian Creek's grievance procedures and by-laws to deny him the use of his property and expel him from membership. Section 1982 provides "[all] citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." To prevail under § 1982, Waffer must show defendants intentionally deprived him of these rights due to his race.Phillips v. Hunter Trails Community Ass'n, 685 F.2d 184, 187 (7th Cir. 1982); Latimore v. Citibank, F.S.B., 979 F. Supp. 662, 664 (N.D. Ill. 1997).
The uncontested facts in defendants' Rule 56.1(a)(3) statement do not evince discriminatory intent. Rather, defendants' facts establish legitimate, nondiscriminatory reasons for Waffer's expulsion. Waffer failed to timely pay his 1998 membership dues and intentionally withheld them; he stated he did not intend to pay his dues until the board agreed to compensate him for expenses incurred in connection with the grievance against his dog. The board repeatedly notified Waffer that non-payment of his dues could result in expulsion. Waffer never applied for reinstatement, and paid his dues over six months late in order to be able to sell his interest and related property. Moreover, uncontroverted evidence indicates Indian Creek expelled four white members between 1992 and 1999 for nonpayment of dues. This negates Waffer's unsubstantiated claim that defendants expelled him because of his race.
Waffer may survive summary judgment only if he provides facts supporting a reasonable inference that defendants' actions were motivated by discriminatory intent. Waffer fails to do so. Waffer failed to submit a Rule 56.1(b)(3) statement of additional facts showing discriminatory intent. Instead, Waffer refers to these purported facts in his response brief. The court has discretion to refuse to consider these improperly presented additional facts for failure to comply with Rule 56.1(b)(3).Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1139-40 (7th Cir. 1997). However, the court finds that even if properly submitted, Waffer's additional facts do not support a reasonable inference of discriminatory intent.
Waffer first explains that he refused to attend the November 16, 1996 meeting because he did not receive a copy of the complaints against his dog and was not informed who had filed the grievance. Waffer Dep. at 35-37. Waffer believed he would be unable to adequately defend himself at the meeting without knowledge of the claim against him. Waffer further believed defendants would sandbag him if he attended; he asserted they "were lining people up" and planned "a surprise for [him] when [he] got there." Id. at 36. Waffer's speculation as to defendants' motives is insufficient to establish discriminatory intent. Aside from his testimony regarding this speculation, Waffer points to no evidence showing defendants harbored discriminatory intent.
Next, Waffer asserts defendants intentionally waited seven weeks to deposit his January 1998 dues check because they knew that if they did not deposit the check within thirty days, the money allocated by Waffer to cover the check would revert to his main interest-bearing account and the check would be dishonored. Waffer Dep. at 100-106. Again, Waffer points to no evidence supporting this belief.
Third, Waffer contends he felt defendants discriminated against him because the board heckled and hollered at him and did not let him speak during the March 15 meeting. Id. at 52. The purported refusal to permit him to speak, standing alone, is not probative of discriminatory intent. Fourth, Waffer contends the board's discriminatory intent is evinced by starting the thirty-day countdown to expulsion for nonpayment from the April 28, 1998 notice of nonpayment instead of the June 12 notice. However, the April 28 notice states that Waffer could be subject to expulsion if he did not pay his dues within 30 days. And even if defendants failed to comply with the by-laws' notice provisions, this fact alone would not evince discriminatory intent.
Finally, Waffer asserts he had ten days following his expulsion to remove his property from Indian Creek, but that when he went to do so on the fourth day after his expulsion, Temper, Cecich, and McCarthy told him he was trespassing and called the police to remove him. Waffer Dep. at 124-26. Waffer also claims defendants retained his personal property in violation of the by-laws. Waffer asserts this shows defendants' discriminatory intent because no non-black person suffered the same treatment. However, Waffer fails to offer evidence showing he was singled-out and that non-black members did not receive similar treatment. In sum, Waffer fails to provide any evidence supporting an inference that defendants' actions were motivated by discriminatory intent. Waffer's speculation and belief are insufficient. Absent proof of discriminatory intent, Waffer's equal treatment claim under § 1982 must fail.
Waffer also testified that in early May 1998, he placed a $1000 check for the total annual 1998 dues in a mailbox at Indian Creek's main office. Waffer Dep. at 109-113. This assertion is flatly controverted by a July 6, 1998, letter from Indian Creek's attorney to Waffer's attorney stating Waffer's 1998 dues remained unpaid and that the $1000 check had not been received. This fact is admitted due to Waffer's failure to file a Rule 56.1(b)(3) statement, despite Waffer's contention. Smith, 129 F.3d at 425-26.
III. BREACH OF CONTRACT CLAIM
The amended complaint alleges defendants breached Waffer's membership contract when they expelled him without following the by-laws. Waffer fails to identify the by-laws allegedly violated. Moreover, Waffer must show he performed his obligations under the contract in order to prevail on a breach of contract claim. Gallagher Corp. v. Russ, 721 N.E.2d 605, 611 (Ill.App. 1999). The uncontroverted evidence shows Waffer failed to perform his obligations under the membership agreement, as he failed to timely pay his 1998 membership dues. Accordingly, Waffer's breach of contract claim must fail.
CONCLUSION
The motion for summary judgment is granted.