engaged in any extreme and outrageous conduct because PSI clearly had a right to
refuse Johnson’s partial payment. As is indicated above, it is not clear whether or
not PSI had the right to sell Johnson’s personal property when it did or whether its
conduct was otherwise unfair.

However, Johnson has not pointed to any action by PSI that could be deemed
by a reasonable trier of fact to be “beyond all possible bounds of decency.” Jd.
There is evidence pointed to by Johnson that would allow a reasonable trier of fact to
conclude for instance that PSI breached its contractual obligations and engaged in
unfair conduct. However, there is not sufficient evidence that PSI employees
engaged in any conduct that was “beyond all possible bounds of decency.” Id.
Thus, no reasonable trier of fact could conclude that such conduct was extreme and
outrageous.

In addition, there is insufficient evidence for a reasonable trier of fact to
conclude that PSI’s alleged misconduct caused Johnson’s severe emotional distress.
Johnson admits as “undisputed” pursuant to Local Rule 56.1 that her psychiatrist
testified from his notes taken from sessions with Johnson in 2002 and that he had
questioned Johnson about the stress in her life. (R SF 43). Johnson admits that
nowhere in her psychiatrist’s notes is there any reference to the loss of her personal
property that was sold by PSI. (R SF 43). Johnson admits pursuant to Local Rule
56.1 that her psychiatrist testified that if Johnson had indicated that her stress had

been caused by the sale of her personal property it would have been included in his

20


We note that the above analysis does not dispose of the entire negligence
claim or the entire breach of contract claim. In addition to the refusal by PSI to
accept the personal check of Johnson and the refusal to return her property, Johnson
specifically alleges as part of her negligence and breach of contract claims that PSI
is liable for selling her personal property. (SA Compl. Par. 39, 43). The
determination of whether or not PSI was obligated to accept a personal check for
payment, does not automatically resolve the issue of whether PSI breached the terms
of its contract with Johnson by selling her property or was negligent by selling her
property. What PSI could do with Johnson’s property while holding it is a separate
issue from whether PSI was obligated to accept her payment and return the property
or control of the storage space where the property was located.

PSI does present a cursory argument in its reply regarding the propriety of the
sale of Johnson’s personal property. (Reply 8). However, a party cannot introduce
new arguments for the first time in its reply brief and thereby avoid giving the
opposing side an opportunity to respond to the arguments. See Aliwoli v. Gilmore,
127 F.3d 632, 635 (7th Cir.1997)(quoting United States v. Feinberg, 89 F.3d 333,
340-41 (7th Cir.1996) for statement that "[t]he reply brief is not the appropriate
vehicle for presenting new arguments or legal theories to the court."); Weizeorick v.
ABN AMRO Mortgage Group, Inc., 2004 WL 1880008, at *2 (N.D.III.2004)(holding
that "[i]t is elementary that parties may not raise new arguments or present new facts

in their reply, thus depriving their opponent of the opportunity to respond.").

14


the paragraph contains legal arguments and multiple facts. (R SF 6). Paragraph 6
does not contain legal arguments. Neither does the paragraph contain an excessive
amount of facts. Nothing limits a party to providing only one fact per paragraph
under Local Rule 56.1. The key point is that Johnson does not offer a legitimate
dispute of the fact that the clause referred to by PSI was included in the storage
contract between PSI and Johnson. PSI has also offered as an exhibit a copy of the
loan document which contains the clause that is now disputed by Johnson. (Hatch

Affdvt. PS 000003).

B. Paragraph 14 of Statement of Material Facts

PSI asserts, in its statement of material fact Paragraph number 14, that in
October of 2001 Johnson presented two personal checks to PSI for rent payments
and that the checks were returned for insufficient funds. (SF 14). Johnson disputes
the facts arguing that the facts are hearsay because PSI cites “only to its own
records, for which no foundation has been provided.” (R SF 14). However,
Johnson fails to explain why such facts would be hearsay. PSI cites in support of its
facts the affidavit of Timothy Hatch (“Hatch”) who was employed as a District
Manager for PSI in 2002, and who claims to have personal knowledge of the facts
regarding Johnson’s tenant file. (Hatch Affdvt. Par. 1). Further, attached to the
Hatch affidavit are business records kept by PSI that show that Johnson paid her rent

with two checks on October 18, 2001, and that the checks were returned on


notes. (R SF 44). Johnson admits, pursuant to Local Rule 56.1, that she told her
psychiatrist about a job that she held in 2001 with “Nestle,” before the sale of her
goods in January of 2002. (R SF 46). Johnson admits that her psychiatrist testified
that Johnson said that she was under stress because she had to take an unpaid leave
of absence from her job at “Nestle” because of a disability. (R SF 46). Johnson also
admits that she told her psychiatrist that she found her commute to work stressful
and that her job “exacerbated” her disability. ( R SF 46). Johnson also admits that
her psychiatrist testified that when he first saw Johnson in 2002 he diagnosed her
with a type of depression that she had been suffering from “for at least two years.” (
R SF 52). In fact, Johnson admits that she had a history of emotional problems long
before the sale of her property. (R SF 49).

Johnson also claims that she lost her job at Avon due to the stress caused by
the sale of her personal property. Johnson’s damages theory in this action is in part
based upon the lost income from her Avon job. However, Johnson admits, pursuant
to Local Rule 56.1, that she was not hired until months after her property was sold.
(R SF 39). Johnson further admits that when she applied for the position with Avon
in April of 2002 “she categorized her ‘present health’ as ‘Excellent,’” and that she
was able to complete an extensive interview process with Avon “without any
emotional episodes.” (R SF 40). Johnson fails to point to sufficient evidence for a
reasonable trier of fact to conclude that the sale of her personal property by PSI

caused her such stress that it caused her to lose her job at Avon. Thus, no reasonable

21


consumers.” /d. at 961.

In the instant action, the sale of Johnson’s property due to her failure to pay
rent constitutes a forfeiture which is not favored under Illinois law. See Raffel v.
Medallion Kitchens of Minnesota, Inc., 139 F.3d 1142, 1145 (7 Cir. 1998)(stating
that “forfeitures or penalties are disfavored under Illinois law.”); First Nat. Bank and
Trust Co. of Evanston v. First Nat. Bank of Skokie, 533 N.E.2d 8, 14 (Il.App. Ct.
1988)(agreeing with the defendants that there is an established legal “principle that
the law abhors a forfeiture and will not enforce a forfeiture clause in a contract if an
injustice would result therefrom” and that “[c]onversely, it is well settled that the
law enforces a contractual right to a forfeiture, when that right to the forfeiture is
clear, unequivocal and will not result in an injustice.”). Johnson claims in the instant
action that her personal property, which had great sentimental value, was forfeited
despite the fact that she was in route with the funds to pay her past due rent.
Johnson further claims that employees of PSI made statements to Johnson on the
phone which indicated that PSI was willing to wait for Johnson to arrive to avoid the
necessity of her forfeiting her personal property. Thus, the Illinois public policy that
disfavors a forfeiture and its rationale is directly at issue in this action. PSI argues
that since it complied with the Storage Act, PSI followed Illinois public policy.
However, PSI is not absolved from violating any public policy simply because it
complied with the Storage Act.

We also conclude that the alleged misconduct of PSI would be oppressive. If

18


action into that of the State.” Jd. at 164. Similarly, in the instant action, the Storage
Act merely authorized and acquiesced in certain conduct by PSI. Johnson has not
pointed to evidence that would show that the State of Illinois compelled or coerced
PSI to act or was sufficiently involved in the sale.

Johnson also attempts to distinguish the cases cited by PSI arguing that in
those cases the plaintiff was seeking to hold individuals liable under 42 U.S.C. §
1983 (“Section 1983"), and Johnson is seeking to simply hold the Storage Act
unconstitutional. In American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999),
the plaintiffs made a similar argument “hoping to avoid the traditional application of
[the Court’s] state-action cases. ...” Jd. at 50. In Sullivan, the plaintiffs
“attempt[ed] to characterize their claim as a ‘facial’ or ‘direct’ challenge to the
utilization review procedures contained in the Act, in which case, the argument goes,
[the Court] need not concern [itself] with the ‘identity of the defendant’ or the ‘act or
decision by a private actor or entity who is relying on the challenged law.”” /d. The
Court in Sullivan rejected such an argument stating that the argument “ignores [the
Court’s] repeated insistence that state action requires both an alleged constitutional
deprivation ‘caused by the exercise of some right or privilege created by the State or
by a rule of conduct imposed by the State or by a person for whom the State is
responsible,’ and that ‘the party charged with the deprivation must be a person who
may fairly be said to be a state actor.’” Jd. (emphasis in original). Thus, Johnson

likewise cannot avoid the state actor requirement simply by seeking to hold the

10


Johnson is incorrect. Whether or not Johnson started her job four months after the
sale is a factual issue and is not a legal issue. Johnson thus admits, pursuant to Local

Rule 56.1, that she began working for Avon four months after PSI sold her personal

property.

II. Storage Act Claims (Counts J and IT)

PSI argues that it is entitled to summary judgment on the Storage Act claims
because Johnson has not alleged any state action. Johnson alleges that the Storage
Act is “unconstitutional under the due process clause of the Fourteenth Amendment
to the Constitution of the United States, both on its face and as applied.” (SA
Compl. Par. 27). Johnson specifically contends that the Storage Act is
unconstitutional because it “provides no adequate post-deprivation remedies, nor
does it afford adequate notice prior to sale.” (Ans. SJ. 2). PSI argues that Johnson’s
Storage Act claims fail because there is no evidence that shows a state action to
support such claims. In support of PSI’s position, PSI cites Malone v. Illinois, 2001
WL 1803656 (S.D. Ill. 2001) for the proposition that “[i]t is well established that
purely private action is immune from the restrictions of the Fourteenth Amendment.”
Id. at *3. PSI also cites Cremin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 957
F.Supp. 1460 (N.D.III. 1997) for the proposition that “[s]tate action exists ‘only
when it can be said that the State is responsible for the specific conduct of which the

plaintiff complains.’” /d. at 1468 (quoting Blum v. Yartesky, 457 U.S. 991, 1004


November 17, 2001. (Hatch Affdvt. Ex. PS 000010). Johnson has failed to show
that the above evidence would be inadmissible at trial and thus, in the absence of a
proper citation by Johnson to support her denial of Paragraph 14, the paragraph is
admitted pursuant to Local Rule 56.1. Local Rule 56.1; Dent v. Bestfoods, 2003 WL

22025008, at *1 n.1 (N.D. Ill. 2003).

C. Paragraph 43 of Statement of Material Facts

PSI asserts, in Paragraph 43 of its statement of material facts, that Johnson’s
psychiatrist took notes during his sessions with Johnson in 2002 and that the notes
reflect that Johnson talked about what was causing her stress, but she did not
mention the sale of her personal property by PSI. ( SF 43). Johnson responds to
paragraph 43 by stating “Undisputed.” (R SF 43). However, Johnson proceeds to
also point to other evidence and explain her admission. Such additional legal

argument in a Local Rule 56.1 response is improper.

D. Paragraph 39 of Statement of Material Facts

PSI asserts, in Paragraph 39 of its statement of material facts 39, that Johnson
did not begin her job with Avon until four months after the sale of her property. ( SF
39). Johnson responds to Paragraph 39 by acknowledging that “Plaintiff's hire and
start dates are undisputed.” ( R SF 39). However, Johnson also objects to the start

date referred to in Paragraph 39 arguing that such a statement is legal argument.


the trier of fact finds that PSI did not have a legal right to sell Johnson’s personal
property, then the sale of her personal property would be a drastic measure. Since
PSI had exclusive control over her property, to sell her property without legal
justification and deprive her any further opportunity to recover the property would
be an oppressive act. It is clear that such sales and unfair conduct can wreak havoc
on the lives of such consumers. Therefore, we conclude that the alleged misconduct
in the instant action is the type of unfair conduct that can support a claim under the
Fraud Act. Therefore, we deny PSI’s motion for summary judgment on the Fraud

Act claim.

V. ITED Claim (Count VI

PSI argues that it is entitled to summary judgment on the ITED claim. For an
IIED claim, a plaintiff must establish that: “(1) the defendant's conduct was extreme
and outrageous; (2) the defendant either intended that his conduct should inflict
severe emotional distress, or knew that there was a high probability that his conduct
would cause severe emotional distress; (3) the defendant's conduct in fact caused
severe emotional distress.” Dunn v. City of Elgin, Illinois, 347 F.3d 641, 651 (7°
Cir. 2003)(quoting Doe v. Calumet City, 641 N.E.2d 498, 506 (1994)). For conduct
to be extreme and outrageous the conduct “must be so extreme as to go beyond all
possible bounds of decency and be regarded as intolerable in a civilized

community.” Id. PSI argues that there is not sufficient evidence to show that PSI

19


under in the instant action. (Ans. SJ 3). However, the Court in Edmonson did not,
as Johnson suggests, create three separate tests for state action. Instead the Court
merely referred to them as “certain principles of general application,” thereby
indicating that the considerations were mere factors rather than separate and distinct
tests. Id.

In Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978), the Court was presented
with a situation that is similar to the one presented in the instant action. Specifically,
In Flagg Bros., the Court was presented with a state statute that authorized a
warehouse owner to sell the goods being stored in the warehouse by the owner’s
customers. /d. at 151. The Court pointed out that “[w]hile as a factual matter any
person with sufficient physical power may deprive a person of his property, only a
State or a private person whose action ‘may be fairly treated as that of the State
itself,’ ... may deprive him of ‘an interest encompassed within the Fourteenth
Amendment's protection’... .” /d. at 157. The Court found that the state statute in
question merely provided authorization to the defendant to sell property, but that
“recognizing the traditional place of private arrangements in ordering relationships
in the commercial world, . . . can hardly be said to have delegated to [the defendant]
an exclusive prerogative of the sovereign.” Jd. at 160. The Court concluded by
noting that the Court’s “cases state ‘that a State is responsible for the . . . act of a
private party when the State, by its law, has compelled the act’” and that the Court

“has never held that a State's mere acquiescence in a private action converts that


IN THE UNITED STATES DISTRICT COURT aan

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
Jonyse Johnson )
Plaintiff,
v. } No. 03 C 6517
PS Illinois Trust,
Defendant. )
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant PS Illinois Trust’s (“PSI”)
motion for summary judgment. For the reasons stated below, we grant in part and

deny in part the motion for summary judgment.

BACKGROUND
Plaintiff Jonyse Johnson (“Johnson”) alleges that in July of 2001 she entered
into a contract with PSI for the storage of her possessions in a storage locker.
Johnson alleges that in 2001 she made monthly payments to PSI until the end of the
year when she missed two payments. Johnson claims that on December 5, 2001, she

received a letter from PSI informing her that she had until January 3, 2002, to make


Fines Clause of the Eighth Amendment. However, the Eighth Amendment prohibits
stated action. See e.g. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal,
Inc., 492 U.S. 257, 262 (1989). As is illustrated above, Johnson has not pointed to
sufficient evidence of any state action in the instant action. Specifically, the Eighth
Amendment Excessive Fines Clause restricts the government’s power to impose
fines, but such a restriction does not restrict the award of money damages in a civil
action. Jd, at 262-63. In the instant action, Johnson has not presented evidence that
shows that the State of I!linois imposed fines on Johnson or prosecuted Johnson for
violating the Storage Act. See id. at 263-64 (stating that the Excessive Fines Clause
“does not constrain an award of money damages in a civil suit when the government
neither has prosecuted the action nor has any right to receive a share of the damages
awarded.”). Therefore, we grant PSI’s motion for summary judgment on the Storage

Act claims (Counts I and II).

IIL. Negligence and Breach of Contract Claims nts T id IV

PSI argues that it is entitled to summary judgment on the negligence and
breach of contract claims (Counts III and IV). PSI argues that Johnson’s negligence
and breach of contract claims are based upon the fact that PSI refused to accept
Johnson’s personal check as payment for her past due rent. (SJ 5-6). PSI argues that
it cannot be found to have been negligent or to have breached its contract with

Johnson because the storage contract unequivocally provided that PSI reserved the

12


Storage Act unconstitutional on its face.

The Court in Sullivan stated that “[i]n cases involving extensive state
regulation of private activity, [the Court has] consistently held that ‘[t]he mere fact
that a business is subject to state regulation does not by itself convert its action into
that of the State for purposes of the Fourteenth Amendment.’” /d. at 52 (quoting
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974)). The Court also
noted that the “[flaithful application of the state-action requirement in these cases
ensures that the prerogative of regulating private business remains with the States
and the representative branches, not the courts” and thus, private parties “will not be
held to constitutional standards unless ‘there is a sufficiently close nexus between
the State and the challenged action of the regulated entity so that the action of the
latter may be fairly treated as that of the State itself.”” /d. (stating “[w]hether such a
“close nexus’ exists . .. depends on whether the State ‘has exercised coercive power
or has provided such significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the State.’”). The Court in Sullivan also
reiterated the principle from Flagg Bros. that “[a]ction taken by private entities with
the mere approval or acquiescence of the State is not state action.” Jd. Thus, since
Johnson has failed to point to evidence that shows that a state action caused any
deprivation of Johnson’s rights, Johnson cannot prevail on her due process claim
(Count I).

Johnson’s second claim is based upon alleged violations of the Excessive

11


(1982)).

Johnson argues in response that in Edmonson v. Leesville Concrete Co., Inc.,
500 U.S. 614, 621-22 (1991), the United States’ Supreme Court established three
separate “tests” for determining whether or not there is a state action. (Ans. SJ 3).
In Edmonson the Court applied the “state-action analysis” established in Lugar v.
Edmondson Oil Co., 457 U.S. 922 (1982). 500 U.S. at 620. Under such an
analysis, the court must first determine “whether the claimed constitutional
deprivation resulted from the exercise of a right or privilege having its source in
state authority. ...” Jd. Secondly, the court must determine “whether the private
party charged with the deprivation could be described in all fairness as a state actor. .
..” Id. As part of the second step in the “state-action analysis,” the Court indicated
that there are “certain principles of general application” which should be considered.
Id. Johnson argues that the Court establishes three separate tests, but the Court
refers to them as principles. /d. The principles that should be considered to
determine “whether a particular action or course of conduct is governmental in
character” are: “the extent to which the actor relies on governmental assistance and
benefits,” whether “the actor is performing a traditional governmental function,” and
whether “the injury caused is aggravated in a unique way by the incidents of
governmental authority. ...” Jd. at 621. Johnson attempts to distinguish much of
the case law cited by PSI on the grounds that the case law dealt with a different

“test” enunciated in Edmonson, than the “test” that Johnson is seeking to proceed


trier of fact could find that PSI’s alleged misconduct caused Johnson severe
emotional distress. Based upon all of the above analysis, we grant PSI’s motion for

summary judgment on the ITED claim.

CONCLUSION

Based on the foregoing analysis, we grant PSI’s motion for summary
judgment on the Storage Act claims (Counts I and II) and the negligence and breach
of contract claims (Counts III and IV) to the extent that they are based upon the
refusal of Johnson’s payment by check. We deny PSI’s motion for summary
judgment on the negligence and breach of contract claims (Counts III and IV) to the
extent that they are based upon the sale of Johnson’s personal property. We also
deny PSI’s motion for summary judgment on the Fraud Act claim (Count V). We

grant PSI’s motion for summary judgment on the ITED claim (Count VI).

Samuel son Des 4 5 a

United States District Court Judge

Dated: August 17, 2005

22


non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212
F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

I. Statement of Material Facts Objections

Pursuant to Local Rule 56.1, Johnson was required to respond to PSI’s
statement of material facts. However, instead of responding to many of PSI’s facts,
Johnson moved to strike the facts. First of all, to the extent that Johnson desired to
move to strike such facts, the proper manner to do so would be in a formal motion
rather than by incorporating the various objections into her Local Rule 56.1
response. However, as we shall explain below, regardless of the fact that Johnson
did not file a proper motion to strike, Johnson’s objections lack any merit. We shall

address a few pertinent examples below.

A. Paragraph 6 of Statement of Material Facts

PSI asserts in Paragraph 6 of its statement of material facts that the storage
contract between PSI and Johnson contains certain language indicating that PSI
could reserve the right to require that payment be made by cash, certified check, or
money order. (SF 6). PSI also contends that Johnson testified that she read and

initialed the paragraph. (SF 6). Johnson disputes Paragraph number 6 claiming that


Also, regardless of the fact that PSI did not present its arguments regarding
the sale of Johnson’s personal property, there are clearly other legal issues not
addressed by PSI in its motion and factual disputes that must be resolved by the trier
of fact. For instance, Johnson claims that she did not realize that PSI would not
accept a check when Johnson attempted to make a partial payment by check the day
before the auction. PSI points to the contract language that allows for PSI to
demand cash or a money order or certified check, but PSI also acknowledges that its
policy was to allow the manager discretion to accept personal checks. It has not
been resolved the extent that Johnson was familiar with the policy of accepting
checks and whether she was informed that no future checks would be accepted by
PSI after her two prior checks had been returned for lack of funds. If Johnson had a
justifiable belief that she could have paid by check on the date before the sale,
another unresolved issue is whether PSI could go ahead and sell her property the
morning after she attempted to make her payment after instilling the belief in
Johnson that she could pay by check. In fact, PSI admits that prior to the refusal of
Johnson’s payment by check PSI had accepted checks from Johnson. (SF 14). PSI
has not shown that Johnson was clearly informed that no more payments could be
made by check. Further, according to PSI’s policy manual the decision was likely
made by PSI’s manager on the day before the sale when Johnson tendered the
payment.

Another issue left unaddressed by PSI is the effect of the alleged statements


involving trade or commerce.” Robinson v. Toyota Motor Credit Corp., 775 N.E.2d
951, 960 (Ill. 2002). PSI argues that no reasonable trier of fact could find that PSI
engaged in a deceptive act because Johnson knew that PSI had the right to demand
payment in cash or by certified check or money order. PSI further argues that
Johnson was notified that if she did not pay her past due rent within fourteen days,
her personal property would be sold. PSI claims that Johnson acknowledges that she
did not tender a proper payment to PSI by 10:30 a.m. on the day of the announced
sale and that Johnson knew that her property was going to be sold. PSI argues that
in the instant action “there is no evidence of any dishonest, unethical or fraudulent
behavior.” (Mem. 10).

Johnson responds to PSI’s arguments by stating that “‘a reasonable jury could
certainly conclude that Defendant’s conduct in refusing Plaintiff's tender of payment
and proceeding to sell off her goods amounts to an unfair act” and that “Plaintiffs
allegations clearly support a claim for unfairness under the CFA.” (Ans. 10-11).
Johnson argues that she can prevail on the Fraud Act claim because of unfair
conduct on the part of PS]. The Supreme Court of Illinois has recognized that,
despite the above elements that apply to deceptive conduct, a plaintiff can recover
under the Fraud Act for “unfair as well as deceptive conduct.” Robinson, 775
N.E.2d at 960. In determining whether conduct is unfair conduct, a court should
consider: “(1) whether the practice offends public policy; (2) whether it is immoral,

unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to

17


Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). In seeking a grant of summary judgment the moving party must
identify “those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the non-moving party’s case.” Jd. at
325. Once the movant has met this burden, the non-moving party cannot simply rest
on the allegations in the pleadings, but, “by affidavits or as otherwise provided for in
[Rule 56], must set forth specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). A “genuine” issue in the context of a motion for
summary judgment is not simply a “metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rather, a genuine issue 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 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596,
599 (7th Cir. 2000). The court must consider the record as a whole, in a light most

favorable to the non-moving party, and draw all reasonable inferences that favor the


her payment in full and prevent PSI from auctioning off Johnson’s possessions in the
storage locker. Johnson further alleges that on January 2, 2002, she paid part of her
past due payments in cash and tried to pay the other portion by check, but the PSI
property manager refused to take the check. According to Johnson, she was told to
return on the morning of January 3, 2002, and pay the remainder of the past due
payments. Johnson claims that she called PSI at approximately 9:45 a.m. on the
morning of January 3, 2001, and told the PSI property manager that she was on her
way to the PSI storage facility with the remainder of her past due payments.
Johnson claims that she arrived at 11:10 a.m. and was told that her possessions had
already been auctioned off. In Johnson’s second amended complaint, she includes
two claims for declaratory and injunctive relief under the declaratory judgment act,
28 U.S.C. §2201, in which Johnson seeks a declaration that the Illinois Self-Service
Storage Facility Act (“Storage Act”), 770 ILCS 95/1, et seq. is unconstitutional
(Counts J and II). The second amended complaint also includes a negligence claim
(Count Ill), a breach of contract claim (Count IV), a claim alleging a violation of
the Illinois Consumer Fraud and Deceptive Business Practices Act, Act, 815 ILCS
505/1 et seg. (“Fraud Act”)(Count V), and an Intentional Infliction of Emotional
Distress claim (“IIED”)(Count VI). PSI now moves for summary judgment on all

claims.

LEGAL STANDARD


right to require payment to be made in cash, by money order, or by certified check.
(SJ 6). Johnson responds by arguing that PSI’s internal policy manual (“policy
manual”) indicated that PSI was supposed to accept payments made by personal
check. (SAF 18). However, the policy manual also specifically states that the
procedures which allow for payment by personal check, may not apply if the
customer has given PSI bad checks in the past and that it is within the District
Manager’s discretion to decide whether or not to accept payment by personal check
in such a circumstance. ( R SAF 18)(SAF Ex. 3). Johnson admits, pursuant to Local
Rule 56.1, that prior to her final attempt to make a partial payment by personal
check, Johnson presented PSI with two personal checks that were returned for
insufficient funds. (R SF 14). Thus, in summation, the policy manual provides the
manager with discretion as to whether to accept payment by personal check if there
has been a prior history of bad checks from a customer. Johnson has admitted,
pursuant to Local 56.1, that she twice presented checks to PSI that were returned for
insufficient funds. (R SF 14). Thus, PSI’s manager would have been acting within
his discretion in refusing payment from Johnson by personal check. Johnson also
admits, pursuant to Local Rule 56.1, that the contract that Johnson entered into with
PSI provided that PSI could require payment by certified check, cash, or money
order. (R SF 6). Thus, in regards to the refusal by PSI to accept the partial payment
by Johnson made by personal check, no reasonable trier of fact could find in favor of

Johnson and we grant PSI’s motion for summary judgment on that claim.

13


made by its employees to Johnson on the phone while she was en route to the PSI
facility on the day of the sale. Johnson testified at her deposition that she called
PSI’s office several times on the phone while she was in route to the PSI facility on
the day of the sale and spoke with employees of PSI. (Johnson dep. 123). Johnson
claims that she kept asking: “Where are you guys in terms of my stuff?, Where’s my
stuff?” (Johnson dep. 123). Johnson claims that she informed the PSI employees
that she was on her way and had the cash with her to pay and she was told “Oh well,
as long as you get here, it’s Okay.” (Johnson dep. 123). Thus, first of all, there is a
factual issue as to whether the PSI employees made the above alleged statements.
Secondly, the trier of fact is presented with the issue of whether to draw an inference
from the above statements by PSI employees that they were telling Johnson that PSI
would not sell her property as long as Johnson arrived in a timely manner. If the
trier of fact were to draw such an inference, the effects of such a promise by PSI
employees upon PSI’s contractual obligations and duties of care are issues that have

not been addressed by PSI in its motion for summary judgment.

IV. Fraud Act Claim (Count V)

PSI argues that it is entitled to summary judgment on the Fraud Act claim.
Under Illinois law, for a Fraud Act claim, a plaintiff must establish: “(1) a deceptive
act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on

the deception; and (3) the occurrence of the deception during a course of conduct

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