IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

NORTHEAST SERIES OF LOCKTON ) 

COMPANIES, LLC, ) 

) 

Plaintiff/Counter-Defendant, ) 

) 

v. ) 12-cv-01695 

) 

DAVID A. BACHRACH, ) Judge Ronald A. Guzman 

) 

Defendant/Counter-Plaintiff. ) 

PLAINTIFF/COUNTER-DEFENDANT’S 

MOTION FOR JUDGMENT AND/OR DISMISSAL

Plaintiff/Counter-Defendant Northeast Series of Lockton Companies, LLC (“Lockton”), 

by its undersigned attorneys, hereby respectfully moves for judgment and/or dismissal on the 

Fair Labor Standards Act counterclaim (the “FLSA Claim”) asserted by Defendant/CounterPlaintiff David A. Bachrach (“Bachrach”). 

1. There are two bases for this motion. First, this Court has the discretion under 

Federal Rule of Civil Procedure 37(c)(1)(C) to “impose other appropriate sanctions, including 

any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)” -- which include “(iii) striking pleadings in 

whole or in part” and “(v) dismissing the action or proceeding in whole or in part.” Second, this 

Court may grant judgment on the pleadings under Federal Rule of Civil Procedure 12(c). 

2. The sole remaining claim following this Court’s summary judgment order, (Doc. 

107), is Bachrach’s FLSA Claim. 

3. There is no scheduled trial date on the FLSA Claim, but the final pre-trial order is 

due to be filed in open court on June 24, 2014. (Doc. 108.) 
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4. On May 19, 2014, Lockton moved under Rule 37(c) to, among other things, bar 

Bachrach from submitting any damages evidence in support of his FLSA Claim because he 

failed to disclose the amount of those purported damages, his calculation of those purported 

damages and/or any supporting materials. (Doc. 110.) 

5. Lockton’s Rule 37 motion asked this Court to: (i) bar Bachrach “from introducing 

at trial any evidence of damages;” and (ii) “grant [] such other and further relief as is appropriate,

including dismissal of the [FLSA Claim].” (Doc. 110 at 10; emphasis added.) 

6. On June 17, 2014, this Court granted Lockton’s Rule 37 motion, holding that 

Bachrach is precluded “from submitting any evidence of FLSA damages at trial” and “from 

introducing any evidence of damages as to his FLSA counterclaim.” (Doc. 115 at 1, 5.) 

7. While this Court’s June 17 order did not expressly dismiss, or enter judgment, on 

the FLSA Claim, its holding precluding Bachrach from introducing any evidence of damages had 

the effect of dismissing or entering judgment on that Claim. Indeed, damages are an essential 

element of Bachrach’s FLSA Claim, and, without any evidence of damages, Bachrach cannot 

possibly recover anything from Lockton on his FLSA Claim. See Moore v. CITGO Refining and 

Chemicals Co., L.P., 735 F.3d 309, 319 (5th Cir. 2013) (holding that “evidence of damages is an 

essential element of Plaintiffs’ FLSA claims”). 

8. Moreover, the concluding paragraph of this Court’s June 17 order cited Hoffman 

v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008), for the proposition that 

imposing a sanction under Rule 37 “is appropriate even when a litigant’s entire cause of action 

will be precluded.” (Doc. 115 at 5; emphasis added.) 

9. So, the June 17 order had the effect of dismissing or entering judgment on the 

FLSA Claim, even though it did not formally grant Lockton’s request for such relief. 
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10. Given the impending pre-trial order deadline, Lockton immediately filed a motion 

for clarification, (Doc. 116), requesting that this Court clarify whether any issues remained for 

trial on the FLSA Claim and whether any pre-trial order in connection with the FLSA Claim was 

still due on June 24. 

11. When the parties appeared on Lockton’s motion for clarification, this Court 

indicated that the pre-trial order date stands. This Court further indicated that the FLSA Claim 

was still pending -- despite the fact that Bachrach is now precluded from introducing any 

evidence supporting the essential element of damages. This Court further indicated that the 

FLSA Claim remains because Lockton did not move for summary judgment on this basis and did 

not otherwise ask this Court to dismiss, or enter judgment, on the FLSA Claim on this basis.1

12. Accordingly, this Court denied Lockton’s motion for clarification. (Doc. 118.) It 

further instructed Lockton to file an additional motion if it sought further relief with respect to 

the FLSA Claim. The Court instructed Lockton to provide in any such motion the procedural 

basis for dismissal, or entry of judgment, on the FLSA Claim. 

13. This motion represents the motion described by this Court in denying Lockton’s 

motion for clarification. Specifically answering this Court’s question, Lockton states that there 

are two bases for this Court to dismiss, or enter judgment, on the FLSA Claim. 

14. First, under Rule 37(c), this Court may enter any sanction authorized under Rule 

37(b). And, Rule 37(b) expressly authorizes this Court to strike or dismiss a pleading. Either 

form of relief, i.e., striking or dismissing the FLSA Claim, is appropriate here. 

15. As an initial matter, this Court has already effectively stricken and/or dismissed 

the FLSA Claim by precluding Bachrach from introducing any evidence of damages in 

 

1

 Respectfully, Lockton submits that this Court overlooked Lockton’s prayer for 

relief in its Rule 37 motion, which requested dismissal of the FLSA Claim. (Doc. 110 at 10.) 
4 

connection with that Claim at trial. Without any evidence of damages, Bachrach cannot possibly 

prove the essential elements of his FLSA Claim, so that Claim is doomed to failure at trial. 

Moore, 735 F.3d at 319 (damages evidence is “an essential element” of a FLSA claim). 

16. Accordingly, any trial or further pre-trial proceedings in connection with the 

FLSA Claim are utterly pointless since Bachrach can never recover on that Claim in light of this 

Court’s prior rulings. 

17. In addition, for all the reasons already discussed and briefed in connection with 

Lockton’s Rule 37 motion, dismissal of the FLSA Claim is an entirely appropriate sanction given 

Bachrach’s complete and unjustified failure to comply with his Rule 26 disclosure obligations. 

Rather than repeating those reasons here, Lockton simply incorporates them herein by this 

reference. 

18. For these reasons, this Court should now formally dismiss the FLSA Claim 

pursuant to Rule 37(c). 

19. Second, under Rule 12(c), a party may move for judgment on the pleadings 

“[a]fter the pleadings are closed -- but early enough not to delay trial.” A Rule 12(c) motion 

should be granted where a party cannot prove facts sufficient to support his claim for relief. 

Gutierrez v. Peters, 111 F.3d 1364, 1368 (7th Cir. 1997). 

20. Here, judgment on the pleadings is appropriate for all the reasons discussed 

above. Specifically, damages are an essential element of Bachrach’s FLSA Claim, but he cannot 

possibly prove those damages because he is precluded from introducing any such evidence at 

trial. Because the pleadings and prior orders of this Court make clear that Bachrach will be 

unable to prove an essential element of his FLSA Claim at trial, there is no point to any further 

trial-related proceedings, and this Court should enter judgment on the pleadings in favor of 
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Lockton on the FLSA Claim. See Scherr v. Marriot Int’l, Inc., 703 F.3d 1069, 1073 (7th Cir. 

2013) (in considering a Rule 12(c) motion, the court may take judicial notice of prior orders 

entered in the case). 

21. Finally, this motion will not cause a delay in the trial because no trial date has 

been set. Thus, judgment on the pleadings should be entered in Lockton’s favor on the FLSA 

Claim. 

WHEREFORE, Plaintiff/Counter-Defendant Northeast Series of Lockton Companies, 

LLC respectfully requests that this Court: (i) grant this Motion; (ii) enter an Order dismissing, or 

entering judgment in favor of Lockton on, the FLSA Claim; (iii) enter an Order striking the June 

24, 2014 due date for the final pre-trial order on the FLSA claim; and (iv) grant Lockton such 

other and further relief as is appropriate. 

Respectfully submitted, 

NORTHEAST SERIES OF LOCKTON 

COMPANIES, LLC 

 By: /s/ Steven J. Ciszewski 

One of Its Attorneys 

Steven J. Ciszewski (#6255749) 

 stevec@novackmacey.com 

NOVACK AND MACEY LLP 

100 North Riverside Plaza 

Chicago, Illinois 60606 

(312) 419-6900 

Doc. #667165
CERTIFICATE OF SERVICE

Steven J. Ciszewski, an attorney, hereby certifies that he served the foregoing 

Plaintiff/Counter-Defendant’s Motion for Judgment and/or Dismissal via electronic means 

pursuant to Electronic Case Filing (ECF) procedures on: 

David L. Lee 

Law Offices of David L. Lee 

53 W. Jackson Blvd., Suite 801 

Chicago, IL 60604 

d-lee@davidleelaw.com 

on this 19th day of June, 2014. 

 /s/ Steven J. Ciszewski