oo

But even if that admission were not fatal to Chatham's
claim, Chatham faces other difficulties as well. It seeks to
avoid the causation question by pointing to provisions in the
Redevelopment Agreement that identified conditions it could not
have satisfied until Beverage completed its own performance, so
that it contends “the Court may now hold as a matter of law that
Beverage's breaches did contribute to the delayed generation and
payment of TIF financing” (Chatham Mem. 2).

But that argument is obviously oversimplistic, for it leaves
open the question whether there were other requirements that
Chatham had to meet to obtain the execution of the Redevelopment
Agreement that did not hinge on Beverage-related performance. If
Chatham still could not have met those requirements until after
Beverage actually delivered on its performance, Chatham cannot
win on this claim.

What has just been said expresses the fundamental concept
that a complained-of breach by a defendant must have been a
proximate cause, though not necessarily the proximate cause, of
plaintiff's injuries--something that the parties had to know was
a key issue from Opinion 28-29:

Another piece of the puzzle would depend on whether any

cause that is ascribable to Chatham, so that it could

not have obtained the redevelopment agreement anyway,

broke the link that could impose liability on Beverage.

This of course is a matter on which Chatham has the burden of

persuasion. On that score, the seminal opinion in Anderson v.


agreements” (Dep. 43), went on to say that they were then
“preparing to sign the redevelopment agreement” (id. 43-44).
After further inquiry by Beverage's counsel in connection with
some other problems that had been encountered in connection with
the construction project, Spathies admitted under oath (id. 49):
Q. Okay. Is a requirement to getting the tax
increment financing that the redevelopment agreement
between Chatham Club and the City be signed?
A. Yes.
Q. Okay. Does Chatham Club maintain that
Beverage is in any way responsible for the delay in the
signing of the redevelopment agreement?
A. No.

It would be difficult to envision a more unequivocal
admission of a lack of causation between any delay attributable
to Beverage and Chatham's asserted damage stemming from a delay
in its receipt of TIF financing in consequence of the
Redevelopment Agreement and the events to follow. That alone
could suffice to defeat Chatham's position, and it is really

inexplicable for Chatham's counsel to have been totally silent in

terms of a response on that subject.?

1

‘Totally silent,” that is, by way of any actual response.
Instead Chatham Mem. 4 n.3 purports to draw some significance
from the Opinion's non-mention of that admission on Chatham's
part. But Opinion at 28-29 had no occasion to do so, for its
brief treatment simply focused on the absence of definitive input
from the parties on the possibility that Beverage might otherwise
have been a contributing cause to the non-receipt of TIF funds.
At this stage Beverage's admission argument remains unchallenged.

3


Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) teaches in the
analogous context of summary judgment motions that the party
bearing such a burden must present affirmative evidence in
support of its position--an obligation that is underscored where,
as here, Chatham is confronted with an unexplained admission on
its part that Beverage did not cause the loss of TIF funds.

Accordingly, unless Chatham supplements its response on or
before June 4, 2003 to satisfy its burden, this Court will be
constrained to grant Beverage's Rule 54(b) motion. If Beverage
wishes to tender its own filing within the same time frame to
identify any deficiencies on Chatham's part (independent of
Beverage's asserted delays) that it believes made the execution
of the Redevelopment Agreement unavailable to Chatham before

Beverage satisfied its own obligations, it is free to do so.

Milton I. Shadur
Senior United States District Judge

Date: May 21, 2003


Minute Qsder Form (06/57)

United States District Court, Northern District of [linois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 01 C 1396 DATE 5/21/2003
CASE Beverage Realty vs. Chatham Club, LLC
TITLE
[In the following box (a) indicate the party filing the motion, ¢-g., plaintiff, defendant, 3rd party plaintiff, and (b) stale briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
(ap) a) Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Qa Answer brief to motion due__ . Reply to answer brief due.
(4) im Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) im ‘Trial{set for/re-set for] on at
@) a [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(¢m) OLocal Rule 41.1 OFRCP41(a\(1) OO FRCPA1(a)(2).
ao [Other docket entry] Enter Memorandum Opinion and Order. Accordingly, unless Chatham
supplements its response on or before June 4, 2003 to satisfy its burden, this Court will be constrained
to grant Beverage’s Rule 54(b) motion. If Beverage wishes to tender its own filing within the same time
frame to identify any deficiencies on Chatham’s part that it believes made the execution of the
Redevelopment Agreement unavailable to Chatham before Beverage satisfied its own obligations, it is
free to do so.
(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. sumer of notices
V | Notices mailed by judge’s staff. MAY 22 2003

Notified counsel by telephone. date dockered,

Docketing to mait notices.

Mail AO 450 form. docketiny depoiy initials

Copy to judge/magistrate judge,
sravac03

O23 Pov ay ato waited novice
courtroom: wee Gt

deputy’s
initials

SN SN

US. ; Rateltime received in

1+ Lgential Clerk's Offiee> 7 mailing deputy initiais

i


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION R

a

&

BEVERAGE REALTY, INC., MAY 2 2 2003

Plaintiff,
v. No. 01 C 1396

CHATHAM CLUB, LLC,

Defendant.

MEMORANDUM OPINION AND ORDER

Each side in this hotly-contested claim and counterclaim
litigation earlier filed an Fed. R. Civ. P. (“Rule”) 56 motion
for summary judgment that caused this Court to jump through the
required procedural hoops by reviewing the extensive
documentation submitted by the parties, only to generate a
lengthy February 19, 2003 memorandum opinion and order
(“Opinion”) that was compelled to grant only a portion of the
relief sought by one of the litigants while denying every other
aspect of the motions. Next Beverage Realty, Inc. (“Beverage”)
filed a Rule 54(b) motion to dismiss part of the Chatham Club,
L.L.c. (“Chatham”) counterclaim that sought to recover damages
based on its loss of tax increment financing (“TIF”) funds. At
this Court's direction Beverage then filed a May 1 supplemental
memorandum of law and accompanying documentation, followed by
Chatham's May 16 response to the supplemented motion. Those
submissions have triggered this memorandum opinion and order.

Initially Beverage had launched a twofold attack on

lo


4

Chatham's TIF claim:

1. Because Chatham had not then entered into a
Redevelopment Agreement with the City of Chicago (a
necessary precondition to its receipt of TIF funding),
Beverage could assertedly not be liable in any event for
interfering with Chatham's potential contractual right to
receive such funds.

2. Chatham had expressly admitted that Beverage was
net responsible for Chatham's inability to enter into such a
Redevelopment Agreement.

When it turned out that a Redevelopment Agreement had in fact
been entered into on April 2, 2003 (just nine days before
Beverage submitted its Rule 54(b) motion), that first asserted
bar to Chatham's claim was no longer viable. But as to the
second ground, Chatham's just-received response mysteriously says
not a word--even more mysteriously, Chatham's counsel
surprisingly reassert an entitlement on Chatham's part to a
partial summary judgment on the issue of causation.

On that score the situation is that Beverage took the
deposition of two witnesses whom Chatham had designated under
Rule 30(b) (6) to testify on its behalf. And one of those
designees, Billie Jo Spathies (“Spathies”), after testifying on
May 15, 2002 as to a number of difficulties that had caused the

City to be “unwilling and unable to sign the redevelopment