IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NAPERVILLE SMART METER )

AWARENESS, an Illinois not-for-profit )

corporation, )

)

Plaintiff, ) 11 C 9299

)

v. ) Judge John Z. Lee

)

CITY OF NAPERVILLE, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

In this lawsuit brought under 42 U.S.C. § 1983, Naperville Smart Meter Awareness 

(“NSMA”), an Illinois not-for-profit corporation, has sued the City of Naperville (“the City”) over 

the City’s installation of smart meters in NSMA members’ homes. NSMA alleges that the City 

violated the equal protection rights of its members because the City lacked a rational basis for 

prohibiting its members from retaining their analog meters, while permitting other City residents

to do so. NSMA seeks an injunction requiring the City to replace the smart meters in the homes of 

its members with analog meters at no cost.1

 The City has moved for summary judgment. For the 

following reasons, the Court grants the motion. 

Procedural Background

The Court presumes familiarity with the procedural history of this case, as discussed in 

Naperville Smart Meter Awareness v. City of Naperville, 114 F. Supp. 3d 606 (N.D. Ill. 2015), and 

Naperville Smart Meter Awareness v. City of Naperville, 69 F. Supp. 3d 830 (N.D. Ill. 2014). 

1 See 3d Am. Compl., Prayer for Relief, ¶ 1 [ECF No. 120]; Pl.’s Resp. Mot. Partial J. Pleadings 3 

[ECF No. 173]. 

 
Factual Background

The following facts are undisputed, unless otherwise noted. NSMA is an Illinois not-forprofit corporation that was formed to educate, engage, and empower families, friends, and 

neighbors to advocate for a fiscally responsible and safe utility meter solution in Naperville, 

Illinois. Def.’s LR 56.1(a)(3) Stmt. ¶¶ 3, 6, 18. The City of Naperville has approximately 145,000 

residents; it also has its own electric utility company. Id. ¶ 4. 

Beginning in 2012, the City began replacing analog meters with smart meters at each 

residence within the City. Id. ¶ 5. Like analog meters, smart meters measure and record the total 

residential electricity usage used by a particular customer. 3d Am. Compl. ¶ 33. Unlike analog 

meters, however, smart meters are equipped with wireless radio transmitters that, when activated, 

transmit usage data at fifteen-minute intervals to the City using radio frequency technology. Id. ¶ 

40. Installing smart meters obviates the need for the City to send in-person meter readers to 

residences. See id.

NSMA and its members oppose the installation of smart meters at their residences on 

several grounds. The primary reasons for their objection are twofold. First, NMSA members 

believe that, by using radio frequency technology, smart meters endanger the health of the home 

residents. Additionally, NMSA members contend that transmittal of a household’s usage data to 

the City invades the privacy of the residents. See id. ¶¶ 66–80, 113–124.

The City’s transition from analog meters to smart meters has been completed. As of 

September 2015, only two residential electric customers of the City utilize an analog meter to 

measure electricity usage at their home—Nancy Goodfellow and Michael Willand. Id. ¶¶ 14–15.

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As part of this litigation, the City requested that NSMA produce its membership list. Id. ¶ 

16. NSMA did so, and the list identified Nancy Goodfellow as a member. Id. ¶ 19. Michael 

Willand’s email address appears on the membership list as well. Id. ¶¶ 20, 21. 

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). The Court gives “the non-moving party the benefit of conflicts in the evidence and 

reasonable inferences that could be drawn from it.” Grochocinski v. Mayer Brown Rowe & Maw, 

LLP, 719 F.3d 785, 794 (7th Cir. 2013). In order to survive summary judgment, the nonmoving 

party must “do more than simply show that there is some metaphysical doubt as to the material 

facts[,]” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and instead 

“must establish some genuine issue for trial such that a reasonable jury could return a verdict in 

her favor.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–73 (7th Cir. 2012). 

Analysis

“The purpose of the equal protection clause of the Fourteenth Amendment is to secure 

every person within the State’s jurisdiction against intentional and arbitrary discrimination, 

whether occasioned by express terms of a statute or by its improper execution through duly 

constituted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (quotation omitted).

In order to prevail on a “class of one” equal protection claim, NSMA’s sole remaining claim in 

this case, a plaintiff is required to prove two things. Id. First, a plaintiff must show disparate 

treatment. Id.; see Del Marcelle, 680 F.3d at 894 (“like situations are . . . being treated differently; 

that is what unequal treatment . . . means.”). Second, a plaintiff must demonstrate the lack of a 

rational basis for the challenged action. Id. Failure to establish disparate treatment dooms an 

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equal protection claim. See, e.g., Ind. Petroleum Marketers & Convenience Store Ass’n, 808 F.3d 

318, 324 (7th Cir. 2015) (granting summary judgment without discussing second prong due to 

lack of evidence that stores in incorporated and unincorporated municipalities were treated 

differently with regard to cold beer sales); Klein v. Jackson, 477 F. App’x 317, 322 (6th Cir. 2012)

(granting summary judgment without discussing second prong because plaintiffs failed to present 

evidence upon which reasonable jury could find disparate treatment).

The undisputed facts in the summary judgment record show that the City has not treated 

NSMA members differently with regard to the retention of analog meters. The parties agree that, 

as of September 2015, two, and only two, residents were permitted to retain analog meters: Nancy 

Goodfellow and Michael Willand. Def.’s LR 56.1(a)(1) Stmt. ¶¶ 14–15. The parties also agree 

that Goodfellow’s name, as well as the email address that Willand has provided to the City as an 

electric customer, appear on the list of NSMA members that NSMA provided to the City. Id. ¶¶ 

19–21. 

Undaunted, NSMA attempts to argue that Goodfellow and Willand do not fit the definition 

of “members” that is asserted in the Third Amended Complaint, and thus they are not members of 

NSMA. In NSMA’s view, the following statement in the Third Amended Complaint defines who 

is and is not a member of NSMA: “NSMA is an organization composed of more than 1,800 

members who would have standing to sue in their own individual right for the allegations set forth 

in this Complaint (“NSMA members”).” 3d Am. Compl. ¶ 10. 

According to NSMA, based on this definition, Goodfellow and Willand are not “members”

of NSMA because they retained analog meters and, therefore, have no standing to sue the City. 

But NSMA has not provided, and the Court has not found, any authority for the proposition that a 

plaintiff’s allegation in its complaint controls the definition of an association’s membership 

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throughout the litigation, particularly at the summary judgment stage. Rather, after summary 

judgment motions are filed, the presumption of correctness of a plaintiff’s allegation falls away,

and an assertion of fact must be properly supported by affidavits, declarations, or evidence. See

Fed. R. Civ. P. 56(c), (e). 

Furthermore, NSMA’s argument that a person is an NSMA member only if he or she has 

standing to sue in this lawsuit is odd. Under this definition, a person could not become a member 

of NSMA, even if he or she attended all of the organization’s meetings, signed all the circulated 

forms, and agreed with the organization’s tenets, if that individual did not have “standing” to sue 

the City in this lawsuit. On the flipside, NSMA would consider someone to be a member, even if 

that person had no involvement with the group or expressed any interest in joining, so long as that 

that individual had “standing” to pursue the claims asserted here. NSMA points to nothing—no 

by-laws, articles of incorporation, or any other organizational document—to show that NSMA 

actually applied such an unusual definition of membership to its members. 

What is more, when the City requested a list of names, addresses, phone numbers, and 

email addresses of all NSMA “members,” see Def.’s Ex. 9, Interrogatories ¶ 3, NSMA responded 

by producing a list that included Goodfellow’s name and Willand’s email address. Thus, by 

including them on the list, NSMA represented that Goodfellow and Willand were NSMA 

members. Furthermore, NSMA’s own exhibits show that, in their communications with the City, 

Goodfellow and Willand argued the same issues and submitted the same form as members of 

NSMA. See Pl.’s Ex. U, 12/30/11 Email from Goodfellow to City (complaining about same issues 

that NSMA raised regarding cost, health, and privacy issues of smart meters) at Defendant 

003708; Pl.’s Ex. U, 7/20/12 Notice of No Consent from Willand to City (submitting same noconsent form as NSMA members to City) at Defendant 004588. Based on the undisputed facts 

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before the Court, the Court concludes that no rational jury could find that Goodfellow and Willand 

were not NSMA members or that the City treated NSMA members differently from nonmembers 

when it permitted electric customers to retain analog meters.

In its opposition to the City’s summary judgment motion, NSMA also points to a third 

person, named Farah Apicella, who was allowed to retain an analog meter. In support, NSMA 

relies on the declaration of Jennifer Stahl, NSMA President, which states in part that “[o]n 

December 2, 2015 and December 3, 2015, I communicated by email with Farah Apicella and in 

the course of our email conversation, I was made aware by Ms. Apicella that she was allowed by 

the City to retain an analog meter and did so until her family sold their Naperville home in June 

2015.” Pl.’s Ex., Stahl Decl. ¶ 25. But this argument cannot save NSMA for two reasons.

First, it is unclear whether Apicella was or was not a member of NSMA, and NSMA 

provides no evidence one way or the other.

2 Second, whatever the membership status of Apicella

may be, Stahl’s statement recounting the substance of her communication with Apicella is classic 

inadmissible hearsay. Apicella’s statement to Stahl that Apicella was allowed to retain an analog 

meter is an out-of-court statement being offered by NSMA to prove the truth of the matter 

asserted, and NSMA does not argue that the statement is non-hearsay under Federal Rule of 

Evidence 801 or satisfies any hearsay exception under Federal Rules of Evidence 803 or 804. 

Because this statement is based on hearsay, NSMA cannot rely on it to forestall summary 

judgment. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) (“Hearsay is 

2 The Court does note that NSMA’s own exhibits show that the Apicella family submitted 

the same “no consent” form that other NSMA members submitted to the City. See Pl.’s Ex. U, 

6/17/12 Notice of No Consent from Apicella to City, at Defendant 004556. Therefore, to the 

extent there is any evidence regarding this issue in the record, it indicates that the Apicellas were 

members of NSMA or, at least, allied with NSMA in its efforts.

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inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial . 

. . .”). 

In sum, NSMA has conceded that it has brought a single equal protection claim based on 

its theory that the City allowed other electric customers to retain their analog meters, while 

prohibiting NSMA members from doing the same. The Court concludes that there is no genuine 

issue as to a material fact regarding whether that alleged disparate treatment occurred. Based upon 

the summary judgment record, the Court concludes that no reasonable jury would find that such 

disparate treatment took place.

Finally, in its submissions, NSMA has offered a number of facts in an effort to 

demonstrate that the City viewed NSMA and its members with a tremendous amount of animosity, 

vindictiveness, and spite. However, NSMA has unequivocally stated that the City’s purported 

harassment of NSMA members is offered to support its contention that the City was determined to 

treat them differently by prohibiting them from retaining their analog meters. See Pl.’s Resp. 

Mem. Opp’n Def.’s Mot. Partial J. Pleadings 6. NSMA has neither asserted an equal protection 

claim based upon the City’s alleged harassment of NSMA members (other than as it may relate to 

the ability to retain analog meters), nor has it sought injunctive relief for such a claim in its Third 

Amended Complaint. 3d Am. Compl., Prayer for Relief, ¶¶ 1–2. As discussed, the record 

indicates that the City did allow two NSMA members to retain analog meters. There is no 

evidence that, other than those two NSMA members, anyone else was allowed by the City to 

retain analog meters. Accordingly, summary judgment for the City is appropriate. 

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Conclusion

For the reasons provided herein, the Court grants the City’s motion for summary judgment 

[144]. The Court strikes as moot the City’s partial motion for judgment on the pleadings [169]. 

See Def.’s Reply Supp. Partial Mot. J. Pleadings 6 (conceding the mootness of the motion). This 

case is hereby terminated.

SO ORDERED ENTER: 9/26/16

__________________________________________

JOHN Z. LEE

United States District Judge

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