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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

ANTHONY E. ELLO and 

EVELYN ELLO, 

 Plaintiffs, 

 vs. 

GARY R. BRINTON and 

SEVEN PEAKS MARKETING 

CHICAGO, LLC, 

 Defendants. 

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NO. 2:14–CV-00299 

 

OPINION AND ORDER

 This matter is before the Court on Defendant Gary Brinton’s 

Motion for Summary Judgment and Subject Matter Jurisdiction 

Challenge, filed on August 14, 2017 (DE #126); Defendant Seven 

Peaks Marketing Chicago, LLC’s Motion for Summary Judgment and 

Subject Matter Jurisdiction Challenge, filed on August 14, 2017 

(DE #128); Defendant Gary Brinton’s Motion for Summary Judgment 

and Subject Matter Jurisdiction Challenge, filed on August 17, 

2017 (DE #131); Plaintiff’s [sic] Motion for Leave to File Response 

to Defendants’ Motions for Summary Judgment Instanter, filed on 

September 26, 2017 (DE #133). For the reasons set forth below, 

Defendant Gary Brinton’s motions for summary judgment (DE #126 and 

DE #131) are GRANTED; Defendant Seven Peaks Marketing Chicago, 
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LLC’s motion for summary judgment (DE #128) is GRANTED IN PART AND 

DENIED IN PART; Plaintiffs’ motion for leave to file a response to 

Defendants’ motions for summary judgment instanter (DE #133) is 

DENIED. Counts II and III are DISMISSED. Count I remains pending 

against Seven Peaks Marketing Chicago, LLC. 

BACKGROUND 

 In 2013, Anthony and Evelyn Ello (together, “Plaintiffs”) 

entered into a Lease Agreement with defendant Seven Peaks Marketing 

Chicago, LLC, (“SPMC”), pursuant to which Plaintiffs leased their 

bowling alley to SPMC for thirteen years. SPMC vacated the 

property after eleven months. Plaintiffs filed this lawsuit 

asserting that (1) SPMC breached the Lease Agreement, (2) defendant 

Gary Brinton (“Brinton”) is liable for SPMC’s alleged misconduct 

under an alter ego theory of liability, and (3) Brinton and SPMC 

(together, “Defendants”) fraudulently induced Plaintiffs to enter 

into the Lease Agreement. During discovery, Defendants served 

Plaintiffs with requests for admission. Plaintiffs failed to 

answer the requests for admission in a timely manner. 

 After the close of discovery, Brinton filed two motions for 

summary judgment and subject matter jurisdiction challenge (DE 

#126 and #131), which the Court will treat as one. SPMC also filed 

a motion for summary judgment and subject matter jurisdiction 

challenge (DE #128). The motions for summary judgment argue that 

(1) Plaintiffs’ failure to answer the request for admission and 
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failure to make damages disclosures in their initial disclosures 

preclude them from offering evidence of damages, (2) without a 

prospect of a redressable injury, this Court lacks subject matter 

jurisdiction, and (3) they are entitled to summary judgment on all 

claims. 

 Plaintiffs failed to file a response to any of the motions 

for summary judgment in a timely manner. On September 26, 2017, 

Plaintiffs filed a motion for leave to file a response to the 

motions for summary judgment instanter. (DE #133.) On the same 

day, they filed a combined response to the motions for summary 

judgment that included a motion to withdraw admissions pursuant to 

Federal Rule of Civil Procedure 36(b). (DE #135.) Plaintiffs’ 

motion for leave to file a response instanter and motion to 

withdraw admissions were fully briefed. Defendants reserved the 

right to file reply briefs if the Court granted Plaintiffs’ 

motions. 

DISCUSSION 

Motion for Leave to File Response to Summary Judgment Motions 

Instanter

 Plaintiffs move for leave to file a late response to the 

defendants’ motions for summary judgment instanter. Federal Rules 

of Civil Procedure Rule 6(b)(1) provides that a court “may, for 

good cause, extend the time . . . on motion made after the time 

has expired if the party failed to act because of excusable 
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neglect.” Fed. R. Civ. P. 6(b)(1)(B); see Keeton v. Morningstar, 

Inc., 667 F.3d 877, 883 (7th Cir. 2012) (Rule 6(b) “gives courts 

discretion (with certain exceptions not applicable here) to grant 

extensions of time when deadlines are missed because of excusable 

neglect.”). The determination whether a party’s neglect is 

excusable is “at bottom an equitable one, taking account of all 

relevant circumstances surrounding the party's omission.” Pioneer 

Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 395, 113 

S. Ct. 1489, 123 L.Ed.2d 74 (1993); see Raymond v. Ameritech Corp., 

442 F.3d 600, 606 (7th Cir. 2006) (“Pioneer applies whenever 

‘excusable neglect’ appears in the federal procedural rules.”). 

Relevant circumstances include “the danger of prejudice to the 

[non-movant], the length of the delay and its potential impact on 

judicial proceedings, the reason for the delay, including whether 

it was within the reasonable control of the movant, and whether 

the movant acted in good faith.” Pioneer, 507 U.S. at 395. “Most 

important is the reason for the delay. To establish excusable 

neglect, the moving party must demonstrate genuine ambiguity or 

confusion about the scope or application of the rules or some other 

good reason for missing the deadline, in addition to whatever lack 

of prejudice and absence of delay he can show.” Satkar 

Hospitality, Inc. v. Fox Television Holdings, 767 F.3d 701, 707 

(7th Cir. 2014). “[A] lawyer’s errors are imputed to the client 
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for the purpose of [excusable neglect].” Moje v. Fed. Hockey 

League, LLC, 792 F.3d 756, 758 (7th Cir. 2015). 

Here, Plaintiffs admit that they missed the deadline for 

filing a response brief in opposition to the motions for summary 

judgment by fifteen days. The sole reason offered by Plaintiffs 

is that their counsel had commitments in other cases. (DE #133 at 

1-2; DE #144 at 4 (noting that counsel’s supporting affidavits 

list of two cases on which they were working “as exemplars, not 

the exclusive tasks that consumed counsel’s time”). The Court 

prefers to resolve cases on their merits, but in this case 

Plaintiffs’ counsel proffers nothing upon which to find excusable 

neglect. “[I]t is widely accepted that neglect due to a busy 

schedule is not excusable.” Keeton, 667 F.3d at 883 (citation 

omitted); see Raymond, 442 F.3d 600 (affirming district court's 

refusal to consider a late-filed response to a summary judgment 

motion despite the plaintiff's counsel's claimed busyness); Dean 

v. Chicago Transit Auth., 118 F. Appx. 993, 996 (7th Cir. 2005) 

(“An attorney's busy schedule . . . does not rise to the level of 

excusable neglect.”); Easley v. Kirmsee, 382 F.3d 693, 698 (7th 

Cir. 2004) (“[A]ttorney inattentiveness to litigation is not 

excusable, no matter what the resulting consequences the 

attorney's somnolent behavior may have on a litigant.”). 

Plaintiffs note that they have not requested many extensions 

in this matter, but fail to offer any reason why they could not 
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have requested an extension before the deadline had expired. 

Plaintiffs’ neglect is not excusable because they “could and should 

have moved for an extension” if they wished to preserve their right 

to file responses to Defendants’ summary judgment motions. Adams 

v. City of Indianapolis, 742 F.3d 720, 734 (7th Cir. 2014); see

Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015) 

(“Neglect is generally not excusable when a party should have acted 

before the deadline.”). Moreover, Plaintiffs’ delay in filing 

their summary judgment response brief weighs against finding 

excusable neglect. Postle v. Bath & Body Works, LLC, No. 13 C 

50374, 2015 WL 521365, at *4 (N.D. Ill. Feb. 9, 2015) (“The length 

of the delay weighs against granting the [m]otion” for leave to 

file instanter documents in opposition to summary judgment 

motion.). Plaintiffs inexplicably waited over two weeks to seek 

permission for the late filing, thus undermining any claim of goodfaith mistake. See Peters v. Wal-Mart Stores E., LP, 512 Fed. 

Appx. 622, 628 (7th Cir. 2013) (holding that district court did 

not abuse discretion in striking summary judgment response brief 

where counsel waited nearly three weeks to seek permission for the 

late filing); Postle, 2015 WL 521365, at *4 (filing two weeks late 

was inexcusable); Dean, 118 Fed. Appx. 993 (affirming denial of 

plaintiff’s motion to file a response to a summary judgment motion 

instanter filed nearly two weeks after the deadline). “District 

courts possess great authority to manage their caseload and have 
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the right to expect that deadlines will be honored.” Dean, 118 F. 

Appx. at 996 (citation and internal quotation marks omitted); see

Reales v. Consol. Rail Corp., 84 F.3d 993, 996 (7th Cir. 1996) 

(district courts “are entitled—indeed they must—enforce deadlines” 

for the filing of motions and other papers). 

Plaintiffs’ counsel have failed to meet their burden of 

showing that excusable neglect prevented them from timely filing 

their response to the motions for summary judgment. Their alleged 

busyness fails to meet the Seventh Circuit’s excusable neglect 

standard. Accordingly, the Court DENIES Plaintiffs’ motion for 

leave to file a late response to the defendants’ motions for 

summary judgment instanter.1

Motions for Summary Judgment 

Summary judgment must be granted when “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). A genuine 

dispute 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, 106 S. Ct. 

                                                            

1 Plaintiffs buried a motion to withdraw their admissions in their response brief 

in opposition to Defendants’ motions for summary judgment. (See DE #135 at 8-

11.) In doing so, Plaintiffs failed to comply with Local Rule 7-1(a), which 

requires that motions be filed separately. N.D. Ind. L.R. 7-1(a); see Petty v. 

City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014) (“[D]istrict courts may 

require parties to strictly adhere to their rules.”). Because the Court has 

denied Plaintiffs’ motion for leave to file their response brief instanter, 

Plaintiffs’ response brief is not before the Court, and thus, the Court will 

not consider the motion to withdraw the admissions contained therein.
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2505, 91 L. Ed. 2d 202 (1986). Not every dispute between the 

parties makes summary judgment inappropriate; “[o]nly disputes 

over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary 

judgment.” Id. To determine whether a genuine dispute of material 

fact exists, the Court must construe all facts in the light most 

favorable to the nonmoving party and draw all reasonable inferences 

in that party’s favor. See Ogden v. Atterholt, 606 F.3d 355, 358 

(7th Cir. 2010). 

A party opposing a properly supported summary judgment motion 

may not rely on allegations in her own pleading but rather must 

“marshal and present the court with the evidence she contends will 

prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 

651, 654 (7th Cir. 2010). “[I]nferences relying on mere 

speculation or conjecture will not suffice.” Stephens v. Erickson, 

569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the 

nonmoving party fails to establish the existence of an essential 

element on which he bears the burden of proof at trial, summary 

judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th 

Cir. 2006). 

Local Rule 56-1(a) requires a summary judgment movant to file 

a “‘Statement of Material Facts’ that identifies the facts that 

the moving party contends are not genuinely disputed.” N.D. Ind. 

L.R. 56-1(a). The party opposing the motion must respond within 
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twenty-eight days with a “Statement of Genuine Disputes” that sets 

forth the “material facts that the party contends are genuinely 

disputed so as to make a trial necessary.” N.D. Ind. L.R. 56-

1(b)(2). “[A] failure to respond by the nonmovant as mandated by 

the local rules results in an admission.” Smith v. Lamz, 321 F.3d 

680, 683 (7th Cir. 2003). When an opposing party fails to respond 

to a summary judgment motion, Federal Rule of Civil Procedure 56(e) 

permits judgment for the moving party only if the movant is 

entitled to it. Fed. R. Civ. P. 56(e)(3). In other words, summary 

judgment may only be granted “if appropriate—that is, if the motion 

demonstrates that there is no genuine issue of material fact and 

that the movant is entitled to judgment as a matter of law.” 

LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 392 (7th Cir. 1995) 

(citation omitted)). 

Defendants filed a Combined Statement of Material Facts in 

accordance with Local Rule 56-1(a). Plaintiffs failed to comply 

with Local Rule 56-1(b) by failing to file their response to 

Defendants’ motions for summary judgment in a timely manner, and 

the Court has denied Plaintiffs’ motion for leave to file their 

untimely response. Thus, the facts as claimed and properly 

supported by Defendants in their Combined Statement of Material 

Facts are deemed admitted without controversy. This Court has 

reviewed the following facts and finds that they are adequately 
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supported with appropriate citations to admissible evidence in the 

record. 

Facts 

Plaintiffs Anthony Ello (“Anthony”) and Evelyn Ello 

(“Evelyn”) are married and reside in Chesterton, Indiana. (Defs. 

Ex. A at 25, 29.) Plaintiffs had an interest in a bowling alley 

and lounge located in Chesterton, Indiana (“Bowling Alley”). (DE 

#24.) In July 2013, Plaintiffs intended to close the Bowling Alley 

due to lack of community support. (Defs. Ex. F.) Defendant SPMC 

is a Utah limited liability company with its principal place of 

business in Utah, and is registered to do business in Indiana. 

(Defs. Exs. X, Y.) SPMC specialized in family entertainment. SPMC 

has articles of incorporation and an operating agreement. (Defs. 

Exs. X, AA.) It is registered to do business in Utah, Delaware 

and Indiana, files its own annual tax return, and maintains a 

separate bank account. (Defs. Exs. Y, BB, CC.) 

When a local realtor contacted SPMC about the Bowling Alley, 

SPMC expressed an interest in leasing or buying the Bowling Alley, 

and initiated contact with Plaintiffs. (Defs. Ex. G.) On or 

before July 12, 2013, SPMC and Plaintiffs entered the Lease 

Agreement (“Lease” or “Lease Agreement”). (DE #24-1.) The Lease 

had a thirteen year term and included the following obligations: 

(1) SPMC would make monthly base rent payments to Horizon Bank in 

the amount of Plaintiffs’ mortgage payment (approximately $4,300 
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per month) (“Rent”); (2) SPMC would make monthly premium rent 

payments to Plaintiffs to compensate them for their $60,000 of 

equity in the Bowling Alley (“Equity Payments”); and (3) SPMC would 

pay utilities and taxes, and would obtain insurance on the Bowling 

Alley. (Id. at 1.) Article V of the Lease addresses the Security 

Deposit Bond (“Bond”): 

Concurrently with Tenant's execution of this Lease or a 

soon as practical thereafter, Tenant shall maintain a 

deposit bond with Landlord in the sum of $75,000.00 in 

the form of a bond issued by a bonding/insurance company 

(hereinafter the "Security Deposit Bond"). The Security 

Deposit Bond shall be for the benefit of the Landlord to 

secure the faithful performance by Tenant of all of the 

terms, covenants, and conditions of this Lease to be 

kept and performed by Tenant during the term of this 

Lease. If Tenant defaults with respect to the payment 

provisions of this Lease, Landlord may, but shall not be 

obligated to make demand on the Security Deposit Bond 

with the bonding company for the payment of any amount 

which Landlord may spend by reason of Tenant's default 

or to compensate Landlord for any other loss or damage 

which Landlord may suffer by reason of Tenant's default. 

. . . [I]f Tenant shall exercise its option to purchase 

the Premises, the Security Deposit Bond or any balance 

thereof shall be returned to Tenant. . . . 

(Id. at 2.) The Lease also includes a remedy provision in the 

event of default. The parties executed an addendum to the Lease, 

which gave SPMC the option to purchase the Bowling Alley. (Id. at 

10.) 

After entering the Lease, SPMC made efforts to obtain the 

Bond. On July 17, 2013, Brinton informed Plaintiffs that he had 

asked his insurance agent with Multi-Serve Insurance to contact 

Plaintiffs regarding the Bond. (Defs. Ex. O at 5-6.) On July 26, 
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2013, Brinton emailed a bond application to Dean Insurance, copying 

Anthony and Horizon Bank, stating that Wendy Dean said the Bond 

would be placed in “7 days or so.” (Id. at 2.) Anthony and 

Brinton also discussed bond alternatives after the Lease was 

entered, including using it for improvements to the building. 

(Defs. Ex. A at 242-43.) 

Brinton began negotiating with Horizon Bank for the purchase 

of the Bowling Alley. (Defs. Ex. I at 71-72.) Anthony was aware 

of these negotiations. (Defs. Ex. A at 237-39.) On September 10, 

2013, Brinton emailed Anthony notifying him that “[m]y intentions 

are to purchase the bowling alley from you through financing from 

Kent Mishler at Horizon Bank, thus alleviating the need for the 

security bond because we will be owners. Not tenants.” (Defs. 

Ex. P.) Brinton’s negotiations with Horizon Bank continued off 

and on until June 2014. (Defs. Ex. I at 71-72; DE #131-8 at 29.) 

Anthony admitted that Plaintiffs weren’t “aggressively pursuing” 

the Bond because they were busy people, and because Brinton was 

pursuing financing to purchase the Bowling Alley. (Defs. Ex. A at 

255.) Anthony did not know whether he communicated with SPMC 

between January 2014 and the end of May 2014, and did not think 

his attorney did so. (Id. at 251-52.) 

SPMC paid rent and the Bowling Alley’s utilities until June 

2014. (See Defs. Ex. L at 226; Defs. Ex. B.) SPMC had a premises 

insurance policy in place on the Bowling Alley beginning on 
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September 12, 2013, and paid the premiums through June 2014. 

(Defs. Exs. L at 226; Defs. Ex. N.) SPMC also made capital 

improvements to the Bowling Alley. (Defs. Ex. K at 2-3.) 

Plaintiffs did not provide SPMC with a tax notice prior to June 

2014. (Defs. Ex. J at 138.) 

On June 9, 2014, SPMC received a letter from Plaintiffs’ 

counsel stating that to avoid being in default under the Lease, 

SPMC must submit the completed form of bond within five days. 

(Defs. Ex. Q.) At that time, SPMC and Horizon Bank were still 

discussing financing for SPMC to purchase the Bowling Alley. (See

DE #131-8 at 29.) That same day, Bowling Alley manager Ryan 

Hartman (“Hartman”) – who was Plaintiffs’ tenant and former 

employee – told SPMC general manager Matt Phair (“Phair”) that 

Plaintiffs sent SPMC a demand letter and intended to change the 

locks on the Bowling Alley doors if SPMC did not comply with the 

Lease. (Defs. Ex. K at 2.) Phair informed SPMC of this. (Id. at 

3.) SPMC considered this information to be reliable because of 

Hartman’s close relationship to Plaintiffs and his knowledge of 

the demand letter before SPMC received it. (Defs. Ex. L at 198-

201.) That day, SPMC removed certain items from the Bowling Alley. 

(Defs. Exs. K, R.) Phair oversaw the removal, which he maintains 

was done in a workmanlike manner, taking care to leave anything 

belonging to Plaintiffs and not to damage any property or fixture. 

(Defs. Exs. K, R, T.) SPMC left food, frozen items, and certain 
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assets in the Bowling Alley. (Defs. Exs. K, T.) The following 

day, Plaintiffs locked SPMC out of the Bowling Alley by changing 

the locks. (Defs. Ex. K.) Evelyn was there and told SPMC employees 

to leave the property. (Id.) 

On June 11, 2014, SPMC’s counsel emailed Plaintiffs’ counsel 

a letter responding to their demand letter, noting that SPMC had 

vacated the Bowling Alley, and its reluctance to walk away from 

the Lease. (Defs. Ex. U.) The letter indicated that SPMC was 

cancelling the insurance policies related to the Bowling Alley and 

directing that the utilities be shut off. (Id.) The letter also 

suggested that the business opportunity could be salvaged. (Id.) 

Plaintiffs did not respond to this letter, and filed the instant 

lawsuit in August 2014. 

On March 1, 2017, Defendants served Plaintiffs with requests 

for admissions. (Defs. Ex. E.) Plaintiffs failed to answer within 

the thirty days allowed by Rule 36(a)(3) of the Federal Rules of 

Civil Procedure. Discovery ended in this case on April 28, 2017. 

(DE #116.) 

Analysis 

Initial Disclosures Issue 

Defendants maintain that Plaintiffs violated Rule 

26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure by serving 

Initial Disclosures containing no damages total, damages 

calculation, and no damages documentary evidence. They assert 
‐15‐ 

that such violation leaves Plaintiffs with no admissible damages 

evidence, which is fatal to all of their claims. Rule 

26(a)(1)(A)(iii) requires a party to disclose “a computation of 

each category of damages claimed by the disclosing party.” Rule 

26(a) disclosures must be supplemented “in a timely manner if the 

party learns that in some material respect the disclosure or 

response is incomplete or incorrect, and if the additional or 

corrective information has not otherwise been made known to the 

other parties during the discovery process or in writing.” Fed. 

R. Civ. P. 26(e)(1)(A). Rule 37(c)(1) provides that a party is 

not allowed to use information that it should have, but failed to, 

disclose under Rule 26(a) or (e), unless such failure “was 

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). 

Plaintiffs’ Initial Disclosures state that Plaintiffs “will 

testify to their damages, which includes the amount due under the 

lease agreement, unnecessary professional fees and the ultimate 

loss of the property and additional payments made to Horizon Bank.” 

(Defs. Ex. C at 2.) The Initial Disclosures also provide that 

witness Terry Hiestand will testify to “damages resulting from the 

breach” and witnesses “Kent Mishler/Horizon Bank employees” will 

testify to “damages resulting from the default.” (Id. at 2-3.) 

The Initial Disclosures attached the Lease Agreement, which is 

governed by Utah law. (Id.) Under Utah law, damages for breach 

of contract “may include general (or direct) and consequential (or 
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special) damages.” Trans-W. Petroleum, Inc. v. U.S. Gypsum Co., 

379 P.3d 1200, 1202 (Utah 2016). 

General damages for a breach of contract or lease are 

measured by the market value of the very thing promised, 

at the time of performance. Such general damages are 

said to be implied in law because they are the probable 

and necessary result of the injury. Hence, they are 

damages which everybody knows are likely to result from 

the harm described. 

Id. at 1206–07 (internal citations, quotation marks and brackets 

omitted). Consequential damages “are reasonably within the 

contemplation of, or reasonably foreseeable by, the parties at the 

time the contract was made.” Id. at 1202 (citation and internal 

quotation marks omitted). “While the standard for determining the 

amount of damages is not so exacting as the standard for proving 

the fact of damages, there still must be evidence that rises above 

speculation and provides a reasonable, even though not necessarily 

precise, estimate of damages.” Atkin, Wright & Miles v. Mtn. 

States Tel. & Tel. Co., 709 P.2d 330, 336 (Utah 1985). 

Defendants cite Sulaiman v. Biehl & Biehl, Inc., No. 15 C 

04518, 2016 WL 5720476 (N.D. Ill. Sept. 30, 2016), to argue that 

the Court should dismiss Plaintiffs’ claims based on their Initial 

Disclosures. In Sulaiman, the plaintiff alleged an Illinois 

Consumer Fraud and Deceptive Business Practices Act (“ICFA”) 

claim, but had not requested actual damages. Id. at *8. Plaintiff 

later argued that he had actual damages of “his time and energy 

spent calling Biehl to dispute the debt.” Id. The court held 
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that the plaintiff failed to meet the disclosure requirements of 

Rule 26(a)(1)(A)(iii) because he failed to identify evidence of 

actual damages that he suffered as a result of the alleged ICFA 

violation. Id. This Court finds Sulaiman to be distinguishable. 

Unlike Sulaiman, here Plaintiffs allege a breach of contract and 

damages resulting from the breach of contract, and the contract 

itself provides a method of determining damages for a breach.2

While Defendants argue that they have “no idea” of the damages 

alleged by Plaintiffs, the Lease Agreement shines light on this 

issue, at least as to Plaintiffs’ breach of contract claim.3 The 

Lease Agreement provides that the Lease had a thirteen-year term, 

and that SPMC would pay Rent of approximately $4,300 per month, 

Equity Payments to compensate Plaintiffs for their $60,000 of 

equity in the Bowling Alley, utilities, and taxes, among other 

obligations. The Amended Complaint alleges that SPMC failed to 

perform terms of the Lease, and abandoned the Bowling Alley after 

eleven months of the thirteen-year term. (Am. Compl. ¶29-¶30.) 

                                                            

2 Defendants also cite several cases addressing Plaintiffs’ attempts to submit 

damages evidence after the close of discovery. See, e.g., Dynegy Mktg. & Trade 

v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011) (affirming exclusion of 

declaration submitted months after discovery closed); Ablan v. Bank of Am. 

Corp., No. 11 CV 4493, 2014 WL 6704293, at *5 (N.D. Ill. Nov. 24, 2014) (adopting 

report and recommendation barring plaintiffs from relying on or introducing new 

evidence at summary judgment or trial), aff'd, 665 F. Appx. 544 (7th Cir. 2016). 

Because Plaintiffs’ admissions are deemed admitted and discovery is closed, 

this is not at issue here. 

3 Because the Court grants summary judgment in Defendants’ favor on Plaintiffs’ 

other claims for the reasons provided below, it does not address the sufficiency 

of Plaintiffs’ Initial Disclosures as to those claims.
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The Lease Agreement addresses default and remedies therefore, 

including Plaintiffs’ entitlement to recover unpaid rent. (DE 

#24-1 at ¶18.1-¶18.2.) Because the Lease Agreement provides a 

reasonable, even though not necessarily precise, estimate of 

damages for SPMC’s alleged breach of contract under Utah law, the 

Court finds that Plaintiffs’ Initial Disclosures satisfy Rule 

26(e) as to the breach of contract claim. 

Standing 

The Court will address Defendants’ contention that Plaintiffs 

lack standing to sue before considering the merits of their claims. 

Standing is an essential component of Article III’s case-orcontroversy requirement. Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992). There are three 

standing requirements: injury in fact, causation, and 

redressability. See id. at 561. Each element of standing is “an 

indispensable part of the plaintiff's case . . . [that] must be 

supported in the same way as any other matter on which the 

plaintiff bears the burden of proof, i.e., with the manner and 

degree of evidence required at the successive stages of the 

litigation.” Id. at 561. Defendants argue that Plaintiffs lack 

standing because they fail to establish injury in fact, i.e.,

damages. “To establish injury in fact, a plaintiff must show that 

he or she suffered ‘an invasion of a legally protected interest’ 

that is ‘concrete and particularized’ and ‘actual or imminent, not 
‐19‐ 

conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 

1540, 1548, 194 L. Ed. 2d 635 (2016) (quoting Lujan, 504 U.S. at 

560). “A ‘concrete’ injury must be ‘de facto’; that is, it must 

actually exist.” Id. (citation omitted). 

Plaintiffs’ Amended Complaint asserts claims of breach of 

contract and fraudulent inducement. Count I alleges that SPMC 

breached the Lease by abandoning the property and failing to: 

secure the Bond; pay the rent, taxes and assessments; maintain 

insurance; and maintain the Bowling Alley in good order and 

condition. (Am. Compl. ¶29-¶30.) Count III alleges that 

Defendants fraudulently induced Plaintiffs to enter into the Lease 

by misrepresenting that SPMC: (1) had enough capital to pay for 

the Bond, insurance, and utilities; (2) would secure the Bond when 

in fact no bond had been obtained, and Brinton knew that no bond 

would be obtained when they entered the Lease; and (3) was 

authorized to conduct business in Indiana when the company was not 

registered or licensed in Indiana prior to entering the Lease. 

(Id., ¶50, ¶¶52-53.) To prevail on these claims, Plaintiffs must 

prove they suffered damages. See Carmichael v. Higginson, 402 

P.3d 146, 149 n.5 (Utah Ct. App. 2017) (plaintiff must prove 

damages under breach of contract claim); Wheatcraft v. Wheatcraft, 

825 N.E.2d 23, 30 (Ind. Ct. App. 2005) (plaintiff must prove 
‐20‐ 

misrepresentation “proximately caused the injury or damage” to 

prevail on fraud claim).4

Defendants cite Plaintiffs’ admissions as evidence of their 

lack of damages. Plaintiffs failed to answer Defendants’ requests 

for admission within the thirty days allowed by Rule 36(a)(3) of 

the Federal Rules of Civil Procedure. As such, the matters were 

deemed admitted by operation of the Federal Rules. See Fed. R. 

Civ. P. 36(a)(3). “A matter admitted under [Rule 36] is 

conclusively established.” Fed. R. Civ. P. 36(b). Plaintiffs’ 

admissions conclusively establish that they have no evidence that 

they incurred damages proximately caused by: (1) nonpayment of 

Rent and utilities on the Bowling Alley from June 1, 2013, through 

June 10, 2014 (the date SPMC vacated the property); (2) SPMC’s 

making of Equity Payments to Plaintiffs before SPMC vacated the 

property; (3) absence of liability insurance on the Bowling Alley 

before SPMC vacated the property; and (4) the timing of SPMC’s 

registration to do business in Indiana. (Defs. Ex. E at 6-7.) 

But Plaintiffs’ admissions do not negate all of their alleged 

damages. For example, the admissions do not address the damages 

                                                            

4 Magistrate Judge Springmann determined that Indiana law applies to Plaintiffs’ 

fraud claim, and that Utah law applies to the breach of contract and alter ego 

claims. (DE #19 at 5.) The Court need not separately consider the alter ego 

claim in Count II because under Utah law, “[a]lter ego theory is not an 

independent claim for relief; rather, it is a theory of liability.” Jones & 

Trevor Mktg., Inc. v. Lowry, 2012 UT 39, 284 P.3d 630, 640 n.1 (Utah 2012) 

(citation omitted).  
‐21‐ 

allegedly caused by SPMC’s failure to pay Rent or Equity Payments 

after it vacated the property on June 10, 2014. 

Defendants also argue that Plaintiffs have no standing 

because their Initial Disclosures’ failure to satisfy Rule 

26(1)(A)(iii) leaves them with no admissible damages. The Court 

has found that Plaintiffs’ Initial Disclosures, including the 

Lease Agreement, provide evidence of damages for breach of contract 

under Utah law. Thus, this argument is unavailing. Considered in 

the light most favorable to Plaintiffs, the evidence that SPMC did 

not secure the Bond and vacated the Bowling Alley prior to the 

expiration of the Lease, coupled with the Lease Agreement’s remedy 

provisions, provide sufficient evidence of damages to satisfy the 

injury in fact requirement for standing. Therefore, the Court 

will consider the merits of Plaintiffs’ claims. 

Count I - Breach of Contract Claim 

SPMC moves for summary judgment on Count I of the Amended 

Complaint. Count I alleges that SPMC breached the Lease by 

abandoning the Bowling Alley and failing to: secure the Bond; pay 

rent, taxes and assessments; maintain the insurance coverage; and 

maintain the Property in good order and condition. (DE #24 at 5 

(Am. Compl. ¶¶29-30).) In Utah, “[t]he elements of a prima facie 

case for breach of contract are (1) a contract, (2) performance by 

the party seeking recovery, (3) breach of the contract by the other 

party, and (4) damages.” Carmichael, 402 P.3d at 149 n.5 (citation 
‐22‐ 

omitted). As noted above, damages for breach of contract under 

Utah law “may include general (or direct) and consequential (or 

special) damages.” Trans-W. Petroleum, 379 P.3d at 1202. Relying 

on Plaintiffs’ admissions, SPMC argues that their breach of 

contract claim should be dismissed based on a lack of evidence of 

damages.5 “Admissions made under Rule 36, even default admissions, 

can serve as the factual predicate for summary judgment.” United 

States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987) (citations 

omitted); see Fed. R. Civ. P. 56(c)(1)(A). Plaintiffs’ admissions 

conclusively establish that they have no evidence of damages 

proximately caused by the absence of liability insurance or 

nonpayment of Rent, Equity Payments, or utilities from June 1, 

2013, through June 10, 2014, when SPMC vacated the Bowling Alley; 

and that when SPMC vacated the Bowling Alley, the bowling alley 

computers and scoring system were fully operable. (Defs. Ex. E at 

6-9.) However, these admissions do not address the damages 

allegedly caused after SPMC vacated the Bowling Alley. 

The evidence demonstrates that on June 9, 2014, Plaintiffs 

informed SPMC that it must submit the Bond to avoid being in 

default under the Lease, and that SPMC vacated the Bowling Alley 

the following day. While the Amended Complaint alleges SPMC 

abandoned the Bowling Alley, Defendants assert that Plaintiffs 

                                                            

5 SPMC also argues that summary judgment should be granted on Count I because 

Plaintiffs’ Initial Disclosures fail to satisfy Rule 26(a)(1(A)(iii). The Court 

has considered and rejected this argument, and need not address it again here. 
‐23‐ 

locked SPMC out of the Bowling Alley. Considering the evidence 

before the Court in the light most favorable to Plaintiffs, there 

is a genuine issue of material fact as to whether SPMC breached 

the Lease. The Lease Agreement provides for remedies for breach 

of the Lease’s provisions, including Plaintiffs’ entitlement to 

recover unpaid rent. Because there is evidence sufficient to raise 

a genuine issue of material fact as to Plaintiffs’ damages under 

the Lease Agreement, the Court denies SPMC’s motion for summary 

judgment as to Count I. 

 Count III - Fraud Claim 

 Defendants move for summary judgment on Count III of the 

Amended Complaint. Count III alleges that Defendants fraudulently 

induced Plaintiffs to enter into the Lease. “To constitute a valid 

claim for fraud, the complaining party must prove there was a 

material misrepresentation of past or existing fact made with 

knowledge or reckless ignorance of its falsity, and the 

misrepresentation caused reliance to the detriment of the person 

relying upon it.” Am. United Life Ins. Co. v. Douglas, 808 N.E.2d 

690, 701 (Ind. Ct. App. 2004) (citation omitted). “To prevail on 

a fraud claim, a plaintiff claiming both breach of contract and 

fraud must prove that the breaching party committed the separate 

and independent tort of fraud and that such fraud resulted in 

injury distinct from that resulting from the breach of contract.” 
‐24‐ 

Dean v. Kruse Found., Inc. v. Gates, 932 N.E.2d 763, 768 (Ind. Ct. 

App. 2010) (citation omitted). 

Defendants argue that Plaintiffs’ fraud claim is a 

repackaging of the breach of contract claim, with no alleged injury 

distinct from the breach of contract. The Court agrees. Indiana 

“bar[s] fraud claims where the damages arising from the fraud claim 

are not separate and distinct from the damages resulting from a 

breach of contract.” Garmin Wurzburg Gmbh v. Auto. Imagineering 

& Mfg., LLC, No. 314CV02006PPSCAN, 2016 WL 3072011, at *2 (N.D. 

Ind. June 1, 2016) (citing Epperly v. Johnson, 734 N.E.2d 1066, 

1073 (Ind. Ct. App. 2000) (finding that the plaintiff's fraud claim 

failed because the defendant's misrepresentation was merely a 

breach of the parties' contract; “[t]he misrepresentation did not 

result in injury distinct from that resulting from the breach, and 

it thus is not independently actionable as fraud”)). There is no 

evidence before the Court of an injury resulting from Defendants’ 

allegedly fraudulent conduct that is separate and distinct from 

the alleged injury resulting from the breach of the Lease. (See

also Am. Compl. ¶57 (alleging in Count III that Plaintiffs were 

“damaged when [SPMC] abandoned the Property after fulfilling only 

eleven (11) months of the thirteen (13) year lease.”).) Therefore, 

Defendants’ motions for summary judgment on Count III is GRANTED. 
‐25‐ 

 Count II - Alter Ego Claim 

 Brinton moves for summary judgment on Count II of the Amended 

Complaint, which alleges that Brinton should be held liable for 

SPMC’s conduct under an alter ego theory of liability. The Lease 

Agreement and its addendum provide that the Lease was between 

Plaintiffs and SPMC as tenant, and are signed by Brinton as 

managing member of SPMC. (DE #24-1 at 1, 8-10.) Under Utah law, 

“[t]he alter ego doctrine is an exception to the general rule that 

limits stockholders’ liability for obligations of the 

corporation.” Lowry, 284 P.3d at 635 (citation omitted). “If a 

party can prove its alter ego theory, then that party may ‘pierce 

the corporate veil’ and obtain a judgment against the individual 

shareholders even when the original cause of action arose from a 

dispute with the corporate entity.” Id. (citation omitted). A 

party may pierce the corporate veil when (1) there is “such unity 

of interest and ownership that the separate personalities of the 

corporation and the individual no longer exist” and (2) “the 

observance of the corporate form would sanction a fraud, promote 

injustice, or an inequitable result would follow.” Norman v. 

Murray First Thrift & Loan Co., 596 P.2d 1028, 1030 (Utah 1979) 

(citations omitted). Utah courts consider the following factors 

in determining whether the formalities element of the Norman test 

is satisfied: 
‐26‐ 

(1) undercapitalization of a one-man corporation; (2) 

failure to observe corporate formalities; (3) nonpayment 

of dividends; (4) siphoning of corporate funds by the 

dominant stockholder; (5) nonfunctioning of other 

officers or directors; (6) absence of corporate records; 

(7) the use of the corporation as a facade for operations 

of the dominant stockholder or stockholders; and (8) the 

use of the corporate entity in promoting injustice or 

fraud. 

Lowry, 284 P.3d at 636 (citing Colman v. Colman, 743 P.2d 782, 786 

(Utah Ct. App. 1987)). “Where a party moves for summary judgment 

in an alter ego case, the court must evaluate the entire 

relationship between the corporation and its officers and ask 

whether there are disputed facts relevant to Norman's two-part 

test for piercing the corporate veil.” Id. at 638. “[E]vidence 

of even one of the Colman factors may be sufficient to suggest 

both elements of a party's alter ego theory.” Id. 

Defendants argue that the alter ego claim should be dismissed 

because Plaintiffs have no admissible evidence supporting this 

theory of liability. Defendants cite Plaintiffs’ admissions that 

they have no evidence that, during the period between June 1, 2013, 

and June 10, 2014: SPMC was undercapitalized; SPMC’s cash and 

assets were not kept separate from other entities; SPMC did not 

maintain accurate financial records; Brinton used SPMC assets for 

the benefit of other entities; SPMC was a sham used by Brinton to 

protects his own assets; or SPMC had no real business organization. 

(Defs. Ex. E at 7-8.) In addition, Defendants proffer evidence 

that Brinton’s personal funds are kept separate from any entity’s 
‐27‐ 

funds, including SPMC’s funds, as well as documentation of SPMC’s 

business registrations, license, operating agreement, tax returns, 

separate bank account, and articles of organization. The record 

before the Court does not proffer any evidence of the 

undercapitalization of SPMC, siphoning of funds by Brinton, 

nonfunctioning of other members, an absence of company records, or 

failure to observe company formalities. Because there is no 

genuine issue of material fact as to any of the Coleman factors, 

Brinton’s motion for summary judgment on Count II is GRANTED. 

CONCLUSION 

 For the reasons set forth above, Defendant Gary Brinton’s 

motions for summary judgment (DE #126 and DE #131) are GRANTED; 

Defendant Seven Peaks Marketing Chicago, LLC’s motion for summary 

judgment (DE #128) is GRANTED IN PART AND DENIED IN PART; 

Plaintiffs’ motion for leave to file a response to Defendants’ 

motions for summary judgment instanter (DE #133) is DENIED. Counts 

II and III are DISMISSED. Count I remains pending against Seven 

Peaks Marketing Chicago, LLC. 

DATED: March 28, 2018 /s/ RUDY LOZANO, Judge 

 United States District Court