In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1327

LEON MODROWSKI,

Plaintiff-Appellant,

v.

JOHN PIGATTO, FRANK PIGATTO,

TAQ PROPERTIES, LLC, and

CAPPS MANAGEMENT,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 09 C 7002—Ronald A. Guzmán, Judge.

ARGUED NOVEMBER 28, 2012—DECIDED APRIL 8, 2013

Before KANNE, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. A party that does not bear the

burden of persuasion may move for summary judgment “by ‘showing’—that is, pointing out to the district

court—that there is an absence of evidence to support

the nonmoving party’s case.” Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). If, after an adequate oppor-
2 No. 11-1327

tunity for discovery, “the non-movant does not come

forward with evidence that would reasonably permit

the finder of fact to find in her favor on a material question, then the court must enter summary judgment

against her.” Waldridge v. American Hoechst Corp., 24 F.3d

918, 920 (7th Cir. 1994) (emphasis in original) (citations

omitted). This is not an onerous burden, yet “[d]espite

the rudimentary nature of their task, parties served

with summary judgment motions often misconceive

what is required of them.” Id. at 921. As this case

aptly demonstrates, such misunderstandings can

have harsh consequences for litigants.

I

Leon Modrowski’s tenure as a property manager

for TAQ Properties and Capps Management came to a

contentious end in 2008. Allegedly in retaliation

for Modrowski’s unwillingness to skimp on important

building repairs, the defendants (TAQ, Capps, and

John and Frank Pigatto) fired Modrowski, withheld

$11,000 in wages, had Modrowski jailed, and locked

Modrowski out of his personal Yahoo email account. This

final affront—apparently enabled by Modrowski’s illadvised decision to merge his personal email account

with that of his employers—is the focus of this dispute.

In November 2009, Modrowski sued in federal court,

challenging the defendants’ refusal to relinquish control

over his personal email account. The district court

issued a temporary restraining order, but apparently

it acted too late. Upon regaining access to his account,
No. 11-1327 3

Modrowski discovered that several years’ worth of his

personal correspondence had vanished. Modrowski

alleges that the defendants’ conduct violated the

Stored Wire and Electronic Communications Act (18

U.S.C. § 2701), the Federal Wire Tapping Act (18 U.S.C.

§ 2511), and the Computer Fraud and Abuse Act (18

U.S.C. § 1030). His complaint also asserts a handful

of state-law claims.

The defendants initially moved to dismiss all of

Modrowski’s claims pursuant to Federal Rule of Civil

Procedure 12(b)(6). The district court granted the

motion in part, dismissing the first two federal claims

with prejudice since Modrowski acknowledged that he

voluntarily linked his personal account with the defendants’ business account. This concession was fatal to

both claims, the court concluded, and Modrowski does

not challenge this decision on appeal. The district court

dismissed Modrowski’s Computer Fraud and Abuse

Act claim on a different ground: the complaint failed

to allege an injury of at least $5,000, as required for

any civil action under the statute. See 18 U.S.C.

§ 1030(c)(4)(A)(i)(I); (g). The district court dismissed

this claim without prejudice, affording Modrowski the

opportunity to elaborate on the economic harm caused

by the defendants’ actions.

When Modrowski returned in July 2010 with his first

amended complaint, the defendants moved for summary judgment. The window for fact discovery had

closed a month earlier, and neither party had asked the

court for an extension. The record at that point, defendants
4 No. 11-1327

urged, had “a complete lack of proof concerning all of

the essential element[s] of the counts contained in Plaintiff’s First Amended Complaint.” Since Modrowski

would be unable to prove his claims at trial, the defendants argued, summary judgment in their favor was

required.

Rather than coming forward with evidence to support

the allegations in his complaint or asking the court

for more time, Modrowski responded by attacking perceived deficiencies of the defendants’ motion. Specifically, Modrowski pointed out that the defendants’

motion “d[id] not contain a Local Rule 56.1 Statement,

cite to any admissible evidence, or cite to any supporting authority for the substantive law of the case.”

As Modrowski saw it, he bore no obligation to respond

to such a defective summary judgment motion because

the defendants “had not met their initial burden as

movants.” Modrowski chose instead to construe the

defendants’ motion as a second Rule 12(b)(6) motion

to dismiss. Over the course of nine pages, he explained

how his factual allegations satisfied every element of

each of his six claims.

The district court was not swayed by Modrowski’s

argument. Noting Modrowski’s failure to offer “any

evidence in response to defendants’ motion, let alone

evidence sufficient to raise a triable issue of fact,” it

granted summary judgment to the defendants on

Modrowski’s Computer Fraud and Abuse Act claim.

The court then relinquished jurisdiction over the state

law claims and terminated the case. 
No. 11-1327 5

II

On appeal, Modrowski renews the same argument he

made to the district court, insisting that his obligation

to point to evidence in his favor was never triggered,

because the defendants failed to meet their initial

burden of production.

Federal Rule of Civil Procedure 56 imposes an initial

burden of production on the party moving for summary

judgment to inform the district court why a trial is not

necessary. Celotex, 477 U.S. at 323. Where the nonmovant

bears the ultimate burden of persuasion on a particular

issue, however, the requirements that Rule 56 imposes

on the moving party are not onerous. It does not

require the moving party to “support its motion with

affidavits or other similar materials negating the

opponent’s claim.” Id. (emphasis in original). Rather,

the movant’s initial burden “may be discharged by

‘showing’—that is, point out to the district court—that

there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Upon such a showing,

the nonmovant must then “make a showing sufficient

to establish the existence of an element essential to that

party’s case.” Id. at 322. The nonmovant need not depose

her own witnesses or produce evidence in a form

that would be admissible at trial, but she must “go

beyond the pleadings” (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file),

id. at 324, to demonstrate that there is evidence “upon

which a jury could properly proceed to find a verdict”

in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251 (1986) (internal quotation marks and citation omitted).
6 No. 11-1327

Modrowski has identified several supposed shortcomings of the defendants’ motion, but none of these flaws

obviated his responsibility to “go beyond the pleadings”

in opposing summary judgment. First, he faults the

defendants for failing to file a Local Rule 56.1 Statement

of Material Facts. Under the Northern District of

Illinois’s Local Rule 56.1, a party moving for summary

judgment ordinarily must file “a statement of material

facts as to which the moving party contends there is no

genuine issue and that entitle the moving party to a

judgment as a matter of law.” N.D. Ill. L.R. 56.1(a)(3).

The local rules provide that failure to provide such a

statement can “constitute[] grounds for denial of the

motion,” and we have “consistently and repeatedly

upheld a district court’s discretion to require strict compliance with its local rules governing summary judgment.” See Koszola v. Board of Educ. of City of Chi., 385

F.3d 1104, 1109 (7th Cir. 2004) (citing Metropolitan

Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002). It

does not follow, however, that district courts cannot

exercise their discretion in a more lenient direction:

litigants have no right to demand strict enforcement

of local rules by district judges. Stevo v. Frasor, 662

F.3d 880, 887 (7th Cir. 2011). To the contrary, unless

the district court “enforce[s] (or relax[es]) the rules unequally as between the parties,” the decision “to overlook

any transgression [of the local rules] is left to the district

court’s discretion.” Id. (internal quotation marks and

citation omitted). No abuse of discretion occurred here.

Relatedly, Modrowski faults the defendants for failing

to support their factual positions with appropriate cita-
No. 11-1327 7

tions to the record, see Rule 56(c)(1)(A). This argument

reflects a fundamental misunderstanding of the legal

basis for the defendants’ motion. The defendants did

not move for summary judgment based on “affirmative

evidence that negates an essential element of the

nonmoving party’s claim”; rather, they were following

a “somewhat trickier” path to summary judgment

by asserting that the “nonmoving party’s evidence

[was] insufficient to establish an essential element of the

nonmoving party’s claim.” Celotex Corp., 477 U.S. at 331

(Brennan, J., dissenting). Both approaches are now

written into the Rules. See R. 56(c)(1)(B) (“A party

asserting that a fact cannot be . . . genuinely disputed

must support the assertion by showing . . . that an

adverse party cannot produce admissible evidence to

support the fact.”); Advisory Committee Notes on 2010

Amendments to R. 56 (“Subdivision (c)(1)(B) recognizes

that a party need not always point to specific record

materials. . . . [A] party who does not have the trial

burden of production may rely on a showing that a

party who does have the trial burden cannot produce

admissible evidence to carry its burden as to the fact.”).

Focusing on a representative element of Modrowski’s

claims helps to illustrate the difference between these

two approaches. To prevail on his Computer Fraud

and Abuse Act claim, Modrowski would have had the

burden of proving that the defendants’ actions “caused [a]

loss . . . during any 1-year period . . . aggregating at least

$5,000 in value.” 18 U.S.C. § 1030(c)(4)(A)(i)(I). Were

the defendants aiming affirmatively to negate that

element—say, by asserting that the evidence irrefutably
8 No. 11-1327

showed Modrowski’s injury totaled only $2,500—the

absence of citations to the evidence on record would

be problematic. But that was not the defendants’ strategy. They asserted that, if the case went to trial,

Modrowski would be unable to produce evidence sufficient to meet his burden of proving that his injury exceeded $5,000. Modrowski counters that he was under

no obligation to conduct formal discovery, and this is

certainly true. See Praxair, Inc. v. Hinshaw & Culbertson,

235 F.3d 1028, 1032 (7th Cir. 2000) (“Discovery is costly

and in cases in which the stakes are small, or there is

a clearly dispositive legal argument, forbearing to

conduct discovery is not negligence.”). But once the

defendants pointed out the gap that they believed

existed in Modrowski’s case, he was obliged to point

to evidence that, if believed by the trier of fact, would

be sufficient to show that his loss did in fact exceed

$5,000. Modrowski could have come forward with affidavits from would-be business partners who were

unable to contact him while he was locked out of his

account; he could have submitted receipts reflecting

the fees he paid to procure duplicates of lost financial

and billing records; or perhaps he might have contented himself with a personal affidavit attesting to the

number of hours he devoted to recovering his emails.

See Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th

Cir. 2004) (court may consider self-serving affidavits at

summary judgment if they are based on personal knowledge and set forth specific facts). Instead, he rested exclusively on his complaint, and this was plainly inadequate.

Celotex Corp., 477 U.S. at 325 (Rule 56 does not “allow[]
No. 11-1327 9

a party opposing summary judgment to resist a properly

made motion by reference only to its pleadings.”).

Indeed, Modrowski might have conclusively established most of the material facts alleged in his complaint simply by highlighting the defendants’ failure to

file a timely answer to his first amended complaint.

Generally, a defendant must serve an answer within

21 days of receipt of service of a complaint (or within

60 days if she has waived service); failure to deny an

allegation constitutes an admission. FED. R. CIV. P. 12(a)(1);

FED. R. CIV. P. 8(b)(6) (“An allegation—other than one

relating to the amount of damages—is admitted if a

responsive pleading is required and the allegation is not

denied.”). While serving a Rule 12 motion tolls the deadline for a defendant to file an answer, filing a Rule 56

motion has no such effect. Compare FED. R. CIV. P. 12(a)(4)

with FED. R. CIV. P. 56. The defendants’ unorthodox

strategy of responding to Modrowski’s first amended

complaint with a motion for summary judgment, unaccompanied by any other responsive pleading, was thus

risky, because Modrowski could have pointed to “admissions on file” to support his allegations. See Celotex,

477 U.S. at 324. Modrowski had the burden of presenting

these arguments to the district court, however, and

he failed to do so.

Finally, Modrowski argues that the defendants failed

to meet their initial burden because their motion for

summary judgment “does not mention the statute

under which defendants believe they are entitled to

summary judgment.” It is true that the defendants’ motion
10 No. 11-1327

failed to recite the individual elements of each of

Modrowski’s claims. Instead, the defendants made the

more general assertion that “there [was] a complete lack

of proof concerning all of the essential element[s] of the

counts contained in Plaintiff’s First Amended Complaint.” The defendants then supported this argument

by discussing Modrowski’s failure to conduct discovery

and by citing to controlling legal authority (e.g., Celotex;

Anderson; Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986)). Modrowski’s thorough, though

misguided, responsive filing—which explained how his

complaint validly stated each of his six claims—shows

that Modrowski understood at least the scope of the

defendants’ motion. This may have been the bare minimum, but in this case it sufficed.

III

We AFFIRM the judgment of the district court.

4-8-13