1

 Unless otherwise noted, the facts in this section are uncontested and come from the

parties’ Rule 56.1 statement of facts or exhibits in support thereof. We note that none of the

facts alleged in the background section of Brdecka’s response brief are supported by exhibits. 

Accordingly, we will not consider those unsupported facts. See Mingo v. Roadway Express,

Inc., 135 F. Supp. 2d 884, 893-94 (N.D. Ill. 2001); Bell Enters. Venture v. Santanna Natural Gas

Corp., 2002 U.S. Dist. LEXIS 19460, *5 (N.D. Ill. 2002) (recognizing that the Court must

disregard factual contentions in the Rule 56.1 statement of facts or response which are

conclusory or unsupported by the record or admissible evidence).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL J. BRDECKA, )

)

Plaintiff, )

) No. 02 C 3076

v. )

) Mag. Judge Michael T. Mason

GLEANER LIFE INSURANCE SOCIETY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

Plaintiff, Michael J. Brdecka (“Brdecka”), filed an action against Gleaner Life

Insurance Society (“Gleaner”) for intentional misrepresentation, interference with

prospective economic advantage and an accounting. The intentional misrepresentation

claims were dismissed in 2002. Gleaner now moves for summary judgment. For the

following reasons, Gleaner’s motion for summary judgment is granted.

Background1

Gleaner is a tax-exempt fraternal benefits society. Gleaner offers life insurance and

tax-deferred annuities to members and prospective members through a network of

independent special representatives. Gleaner refers to purchasers of its deferred annuities

as “members” due to the legal relationship between a fraternal benefits society and an
2

 The terms “override payments” and “trail income” are repeatedly used throughout the

parties’ briefs but are not defined. It appears that these terms refer to a form of payment or

commission.

2

insured individual. 

The special representatives who sell annuities and other products to Gleaner

members act as agents for Gleaner. They are not party to the annuity agreement between

Gleaner and the member. When a special representative sells a Gleaner product such as

an annuity, Gleaner pays a commission directly to that special representative. Gleaner

enters into a Special Representative Agreement with each of its special representatives.

Under the terms of the Special Representative Agreement, Gleaner or the special

representative can terminate the agreement, with or without cause, with ten days written

notice.

In addition to special representatives, Gleaner also has a network of managers or

general agents who are given the right to establish their own agency and receive

commissions on sales made by special representatives under their direction. Gleaner

enters into a Manager’s Agreement with each of its managers or general agents. 

On May 24,1991 Brdecka, entered into a Special Representative Agreement and a

Manager’s Agreement with Gleaner. Pursuant to the Special Representative Agreement,

Gleaner paid compensation in the form of commissions directly to Brdecka for sales he

made of Gleaner products. In conjunction with the Manager’s Agreement, Brdecka

recruited special representatives for Gleaner who Gleaner then authorized to sell its

products. Brdecka received override payments and trail income2

 from Gleaner on sales

made by the special representatives in his agency pursuant to the Manager’s Agreement.
3 Brdecka denies that there was no oral contract between plaintiff and Gleaner that

Gleaner would not or could not promote special representatives in his agency. Brdecka

contends that he had an oral conversation with Joe Burnett and Frank Dick about this issue. 

However, the deposition testimony Brdecka relies on does not support the existence of a

contract prohibiting Gleaner from promoting special representatives in Brdecka’s agency. 

Indeed, Brdecka admitted that there was no written contract prohibiting Gleaner from promoting

special representatives in Brdecka’s agency. Furthermore, Brdecka admitted that neither Mr.

Burnett nor Mr. Dick told him that the special representative in his agency would always be

considered part of his group as long as they worked for Gleaner.

3

For example, if the total commission on a Gleaner product was 8.5%, 7% would be paid

by Gleaner to the special representative who sold the Gleaner product and 1.5% would be

paid by Gleaner to Brdecka in the form of an override payment. Brdecka was not entitled

to receive commissions, renewals, overrides or trail income for sales made by Gleaner

special representatives other than those within his agency. 

When Brdecka created his agency, among the special representatives he introduced

to Gleaner was Norm Chiodras (“Chiodras”). Chiodras entered into a Special

Representative Agreement with Gleaner. As with the other special representatives in

Brdecka’s agency, Brdecka did not have a written or oral contract directly with Chiodras,

nor did Brdecka enter into a written or oral non-compete agreement with Chiodras.

Additionally, no written agreement existed between Brdecka and Gleaner prohibiting

Gleaner from promoting the special representatives in Brdecka’s agency.3

From the beginning of his relationship with Gleaner, Chiodras was one of the top

sellers among all of Gleaner’s special representatives. On sales that Chiodras made

between 1991 through October of 1999, Gleaner paid commissions directly to Chiodras and

an override commission on such sales directly to Brdecka. In 1999, Gleaner promoted

Chiodras and gave him his own agency, similar to that of Brdecka’s, to reward Chiodras’

performance and to insure his continued success and satisfaction with Gleaner. As a result
4

of Chiodras’ promotion, Brdecka no longer received the override commissions or trail

income on Chiodras’ sales. 

Gleaner members have no obligation to purchase Gleaner products from Brdecka

or the special representatives in his agency. The members are free to purchase Gleaner

products from any Gleaner special representative. Further, Gleaner members have the

right to choose which Gleaner products to purchase. The members also have a right to

rollover their Gleaner products into other Gleaner products or into products of other

companies. 

In this action, Brdecka contends that: (1) Gleaner interfered with Brdecka’s

prospective business advantage of ongoing relationships with Gleaner members and (2)

Gleaner interfered with his prospective business advantage of an ongoing relationship with

Chiodras.

Legal Analysis

Summary judgment is proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c); see also, Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986). The moving party has the burden of demonstrating the absence

of genuine issues of material fact. Celotex, 477 U.S. at 323. “A genuine issue of material

fact exists only if there is sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.” Alexander v. Dept. of Health and Family Services, 263 F.3d

673, 680 (7th Cir. 2001). When making this determination, we review the record in the light

most favorable to the nonmovant, and draw all reasonable inferences in his favor. Id.
5

However, once the moving party has met its burden, the opposing party must come forward

with specific evidence, not mere allegations or denials of the pleadings, which

demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639, 642

(7th Cir. 1987). Federal Rule of Civil Procedure 56(c) “mandates summary judgment when

the nonmoving party fails to establish the existence of an element essential to its case and

on which that party will bear the burden of proof at trial.” Jefferson v. City of Chicago, 2000

U.S. Dist. LEXIS 22081, *10 (N.D. Ill. 2000). 

The Local Rules for the Northern District of Illinois impose on a party contesting

summary judgment an exacting obligation to highlight which factual averments are in

conflict as well as what record evidence there is to confirm the dispute. Waldridge v.

American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994). Brdecka properly responded

to Gleaner’s statement of facts by admitting the truth of each fact or controverting the facts

with support from the record. However, Brdecka failed to submit his own statement of facts

in accordance with Local Rule 56.1(b)(3). Brdecka’s response to Gleaner’s motion for

summary judgment includes a background section which realleges the allegations in his

amended complaint. These facts are not supported by references to affidavits, parts of the

record or other supporting materials and therefore, they do not comply with Rule 56.1(b)(3).

This Court has the discretion to admit improperly controverted facts and to ignore

statements of fact that are not properly supported. Flaherty v. Gas Research Inst., 31 F.3d

451, 453 (7th Cir. 1994). The facts in the background section of Brdecka’s response brief

are completely unsupported and therefore, we will not consider them. See Bordelon v.

Chicago School Reform Board of Trustees, 233 F.3d 524, 528 (7th Cir. 2000) (recognizing

that “the district court is entitled to limit its analysis of the facts on summary judgment to
6

evidence that is properly identified and supported in the parties’ statements.”).

I. Tortious Interference with Prospective Economic Advantage

In Count V of the amended complaint, Brdecka alleges that Gleaner interfered with

his prospective economic advantage. Under Illinois law, “[t]o avoid summary judgment on

his tortious interference claim, [Brdecka] must provide evidence from which a jury

reasonably could find that he had a reasonable expectation of entering into or continuing

a valid business relationship, that the defendants knew of his expectation, that they

intentionally interfered with his expectation, and that he was damaged as a result of the

interference.” Croft v. Inlight Risk Management, Inc., et al., 2002 U.S. Dist. LEXIS 16998,

*19-20 (N.D. Ill. 2002) (citing Schuler v. Abbott Laboratories, 265 Ill. App. 3d 991, 994, 639

N.E.2d 144, 147 (1st Dist. 1993)). Furthermore, Brdecka must show that the defendant’s

interference is directed to a third party. Schuler, 265 Ill. App. 3d at 994, 639 N.E.2d at 147.

Gleaner argues that it is entitled to summary judgment because there is no third

party with whom Brdecka had a prospective business relationship. Gleaner claims that it

had independent contractual relationships with the all the parties involved and therefore,

it could not have interfered with Brdecka’s prospective economic advantage. In particular,

Gleaner argues that because it was the only party to pay Brdecka, it could not interfere with

its own relationship with him. Generally, a party cannot tortiously interfere with its own

business relationship. Emery v. Northeast Ill. Reg'l Commuter R.R. Corp., 2003 U.S. Dist.

LEXIS 16403, *33 (N. D. Ill. 2003) (citing Quist v. Bd. of Trs. of Cmty. Coll. Dist. No. 525,

258 Ill. App. 3d 814, 629 N.E.2d 807, 811-12 (3rd Dist.1994)). However, Brdecka argues

that Gleaner tortiously interfered with Brdecka’s ongoing business relationships with the

Gleaner members. 
4 Apparently, while Brdecka would have received commissions if members renewed their

existing annuities, he was not entitled to commissions on the new annuity. Therefore, according

to Brdecka, Gleaner’s alleged promotion of the sale of the new annuity deprived him of

commissions he expected to receive on the renewals. 

7

A. Brdecka’s Relationships with the Gleaner Members

 Brdecka contends that the Gleaner members are necessary third parties for

purposes of his tortious interference claim. Specifically, Brdecka argues that he had a

reasonable expectation of continued commissions on renewals of the Liquidity Plus

Annuity, Liquidity 2000 Annuity and the Retirement Edge Annuity (“the old annuities”).

Gleaner purportedly interfered with Brdecka’s relationships with the Gleaner members by

promoting the sale of a new annuity rather than issuing Gleaner members renewals of the

old annuities.4

 However, Brdecka submitted no evidence in support of his claim that

Gleaner promoted the sale of the new annuity. Indeed, all of the facts detailing Brdecka’s

development of the old annuities, his entitlement to commissions on those annuities and

his claim that Gleaner directed its special representative to issue the new annuity rather

than renewals of the old annuities come from the background section of Brdecka’s

response brief. As set forth above, none of these facts are supported by references to

affidavits, parts of the record or other supporting materials and therefore, we will not

consider them. See Bell, 2002 U.S. Dist. LEXIS 19460 at *5.

Simply put, Brdecka has failed to come forward with any evidence that Gleaner

directed any tortious conduct towards the Gleaner members. Accordingly, Brdecka’s claim

that Gleaner tortiously interfered with his relationships with the Gleaner members fails as

a matter of law. See Fields v. Feldmann Eng'g & Mfg. Co., 1994 U.S. Dist. LEXIS 11396,

*42 (N.D. Ill. 1994) (recognizing that a claim for tortious interference with prospective
8

economic advantage requires action toward a third party); see also, Allen Saltzman

Associates, Inc. v. Aileen, Inc., 633 F. Supp. 1161, 1163 (N.D. Ill. 1986) (finding that

defendant was entitled to judgment as a matter of law on plaintiff’s claim for tortious

interference with business relations because there was no evidence that the defendant

directed any tortious conduct towards plaintiff’s customers). 

B. Brdecka’s Relationship with Chiodras

Brdecka also contends that Gleaner interfered with his ongoing relationship with

Chiodras. According to Brdecka, Gleaner interfered with his prospective economic

advantage by promoting Chiodras in order to cease paying Brdecka the override

commissions and trail income on Chiodras’ sales.

Assuming that Chiodras is an appropriate third party for Brdecka’s tortious

interference claim, in order to survive summary judgment, Brdecka still must come forward

with specific evidence from which a jury could find that he had a reasonable expectation

of continuing a valid business relationship with Chiodras. Croft, 2002 U.S. Dist. LEXIS

16998 at *19-20. In Illinois, “a reasonable expectation of a business relationship is more

than a ‘mere hope’ of developing or continuing a relationship.” Cooper v. Durham School

Services, 2003 U.S. Dist. LEXIS 25005, *26-27 (N.D. Ill. 2003) (citing Williams v. Weaver,

145 Ill. App. 3d 562, 495 N.E.2d 1147, 1152 (1st Dist. 1986)). 

Here, the evidence shows that Gleaner entered into a Special Representative

Agreement with Chiodras. However, that Special Representative Agreement could be

terminated, with or without cause, by either Gleaner or Chiodras with ten days written

notice. Further, Brdecka admitted that he did not enter into a non-compete agreement with

Chiodras nor did Brdecka have a written or oral contract with Chiodras. Additionally, there
9

was no written or oral agreement between Brdecka and Gleaner prohibiting Gleaner from

promoting Chiodras or any of the other special representatives in Brdecka’s agency. 

The evidence submitted by Gleaner demonstrates that Brdecka did not have a

reasonable expectation of continuing a valid business relationship with Chiodras. Indeed,

at any time, Chiodras could have ended his ongoing business relationship with Brdecka by

leaving his agency to work for someone else. There was no contract or non-compete

agreement to prevent such an action. Further, the relationship between Brdecka and any

of his special representatives, including Chiodras, could have ended by virtue of a

promotion. This is exactly what happened when Gleaner promoted Chiodras. There was

no contract prohibiting Gleaner from promoting Chiodras or any other special

representative in Brdecka’s agency. Additionally, Gleaner and Chiodras both had the right

to terminate the Special Representative Agreement without cause. Such a termination

would have ended the existing business relationship between Brdecka and Chiodras

because Chiodras would no longer be authorized to sell Gleaner products.

Brdecka has failed to come forward with specific evidence which demonstrates that

the existence of a genuine issue of material fact with respect to whether he had a

reasonable expectation of continuing a valid business relationship with Chiodras. We are

not obliged to scour the record for factual disputes. Flaherty, 31 F.3d at 453. Based on

the foregoing, we find that Brdecka did not have a reasonable expectation of continuing a

valid business relationship with Chiodras or any of the other special representatives in his

agency for that matter. Therefore, Brdecka’s claim that Gleaner tortiously interfered with
5

 Because Brdecka’s tortious interference claim fails as a matter of law, we need not

address Gleaner’s argument that it is entitled to a competitive privilege.

10

his ongoing business relationships with Chiodras fails as a matter of law.5 

Because Brdecka has failed to come forward with any evidence to establish: (1) that

Gleaner directed any tortious conduct towards the Gleaner members, or (2) that he had a

reasonable expectation of continuing a valid business relationship with Chiodras, Gleaner’s

motion for summary judgment on Brdecka’s claim for tortious interference with prospective

economic advantage is granted.

II. Accounting

Brdecka also requests an accounting. To prove a claim for an accounting in Illinois,

a plaintiff must establish the absence of an adequate remedy at law and either a breach

of a fiduciary relationship, a need for discovery, fraud, or the existence of mutual accounts

which are of a complex nature. Kinesoft Dev. Corp. v. Softbank Holdings, Inc., 2000 U.S.

Dist. LEXIS 18919, *20 (N.D. Ill. 2000); 3Com Corp. v. Electronic Recovery Specialists,

Inc., 104 F. Supp. 2d 932, 941 (N.D. Ill. 2000) (citing Mann v. Kemper Financial

Companies, Inc., 247 Ill. App. 3d 966, 618 N.E.2d 317, 327 (1st Dist. 1992)). While the

lack of an adequate legal remedy is the essential prerequisite to an accounting claim,

Illinois courts will excuse a plaintiff’s failure to establish the absence of an adequate remedy

at law if the accounting claim is based on a breach of fiduciary duty. 3Com Corp., 104 F.

Supp. 2d at 941.
11

Brdecka argues that he is entitled to an accounting from Gleaner because a fiduciary

relationship existed between the parties. Gleaner contends that we should enter summary

judgment on the accounting claim because Brdecka failed to demonstrate the existence of

a fiduciary relationship. However, even if Brdecka established the existence a fiduciary

relationship between the parties, his accounting claim still fails. 

To prove his accounting claim, Brdecka must also establish a breach of the alleged

fiduciary relationship. Kinesoft, 2000 U.S. Dist. LEXIS 18919 at *20. Here, Brdecka has

not come forward with a single piece of evidence to demonstrate that Gleaner breached

any fiduciary duty it may have owed him. In the complaint, Brdecka alleged that Gleaner

committed a fraud against him. However, the intentional misrepresentation claims were

dismissed in 2002 and Brdecka has not offered any additional evidence to establish a

breach of the alleged fiduciary relationship. Accordingly, because Brdecka failed to

establish the existence of an element essential to his accounting claim, Gleaner’s motion

for summary judgment on the accounting claim is granted.

Conclusion

For the reasons set forth above, Gleaner’s motion for summary judgment is granted.

It is so ordered.

ENTER:

______________________________

MICHAEL T. MASON

United Stated Magistrate Judge

Dated: June 6, 2005