ANALYSIS
1. Standard of Review: Motion for Summary Judgment*
Summary judgment is proper only when “there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of Jaw." Fed R. Civ. P. 56(c).. A genuine issue
for trial 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). This standard places

in Support of Mtn. for Sum. J. at 14-15.) Because Doing Steel does not present any substantive reasons
why it is entitled to summary judgment on its own breach of contract claim, we do not consider that
claim in the context of the present opinion. Likewise, Doing Steel’s motion requests summary judgment
with regard to Castle’s first and second affirmative defenses, but includes discussion that pertains to
Castle’s third affirmative defense. Doing Steel has not officially moved for summary judgment on
Castle’s third affirmative defense or provided any documentation which would support such a motion.
We therefore focus solely on the issue of whether summary judgment is proper with regard to Castle’s
first and second affirmative defenses.

“We note Doing Steel’s partial failure to comply with the straightforward requirements of Local
Rule 56.1. The Northern District promulgated Local Rule 56.1 “to assist the court in quickly and
effectively identifying the disputed and undisputed material facts. It is designed to conserve judicial time
and resources.” Sunil R. Harjani, Local Rule 56.1: Common Pitfalls in Preparing a Summary Judgment
Statement of Facts, CBA Record, Oct. 2002, at 42 (citing Bordelon v. Chicago Sch. Reform Bd. of
Trustees, 233 F.3d 524, 527 (7th Cir. 2000)). The Seventh Circuit has “consistently and repeatedly
upheld a district court’s discretion to require strict compliance with its local rules governing summary
judgment.” Bordelon, 233 F.3d at 527 (citations omitted).

Local Rule 56.1(a)(3) requires the movant to file a statement of material facts that “shall consist
of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts
of the record, and other supporting material relied upon to support the facts set forth in that paragraph.”
Doing Steel complied with that portion of the rule. The nonmoving party must then file a similarly
structured, concise response to the movant’s statement and submit a statement “of any additional facts
that require the denial of summary judgment.” L.R. 56.1(b)(3)(B). Castle complied with this portion of
the rule, submitting several paragraphs of additional facts to support its position.

Doing Steel, however, did not follow the third requirement of the rule, which provides that “[i]f
additional material facts are submitted by the opposing party . . . the moving party may submit a concise
reply,” also in the form of short numbered paragraphs. L.R. 56.1(a)(1). The rule further requires that,
“[a]ll material facts set forth in the [ponmoving party’s response] will be deemed admitted unless
controverted by the statement of the moving party.” /d. Although Doing Steel filed a reply in which it
rebutted several of Castle’s legal and factual arguments, it did not submit a paragraph by paragraph
response to Castle’s statement of additional material facts, as is required by Local Rule 56.1. Thus, we
may, in our discretion, deem Castle’s statement of additional material facts admitted for purposes of this
opinion, Metropolitan Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002). Because Doing Steel
has complied with most of Rule 56.1, we decline to do so in this case. The parties are warned, however,
of the potential consequences of failure to comply with Rule 56.1 in the future.

4


‘work of those contractors and not toward performing Doing Steel’s work. Because Article 10.1.2

does not specifically authorize Castle to collect damages for the overtime charges, Doing Steel
reasons, Castle has no recourse for Doing Steel’s delays under the Subcontract. Again, we disagree.
One of Doing Steel’s contractual responsibilities was to maintain the schedule of work set by Castle
for the school project. (Subcontract, Article 3.2.) Doing Steel’s alleged failure to do so constituted a
failure to perform its work. Thus, any damages incurred by Castle in remedying that situation can be
considered a cost of “performing [Doing Steel’s] work.”

Furthermore, under Illinois law, a contract does not limit the type of relief available to a
party unless the contract itself “clearly indicate[s] that the intent of the parties was to make the
stipulated remedy exclusive.” Board of Regents v. Wilson, 326 N.E.2d 216, 220 (IIl.App.Ct. 1975)
(citations omitted); see also Brian McDonagh, S.C. v. Moss, 565 N.E.2d 159, 161 (Ill.App.Ct. 1990)
(noting that merely providing for one type of remedy in a contract “does not preclude other remedies
available to them in the event of a breach.”). Doing Steel does not argue that the remedies listed in
the Subcontract were meant to be exclusive, nor is there any indication in the Subcontract itself that
the parties intended to preclude other remedies. We therefore find that the Subcontract does not
preclude Castle’s second affirmative defense.

Turning then to the factual sufficiency of Castle’s second affirmative defense, Doing Steel
once again fails to meet its initial burden of demonstrating the absence of a genuine issue of material
fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In its summary judgment motion,
Doing Steel never actually denies that it failed to comply with Castle’s schedule of work, asserting
simply that it “continuously performed” work on the school project. (PI.’s L.R. 56.1 Statement { 8.)

The bare assertion that it “continuously performed” does not speak to the issue of whether Doing


“had not completed installation of a particular handrail (thereby negating any fact issue with regard to
that task) but arguing that it left no other work unfinished.’ (PI.’s L.R. 56.1 Statement { 11) (“[alt
the time it ceased work, the only item remaining under the Subcontract Agreement was the
fabrication and installation of twenty linear feet of handrail.”). However, Doing Steel does not point
to any “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file”
that would demonstrate the absence of a genuine issue of material fact on the issue of whether it had
any other work left to perform. Celotex, 477 U.S. at 323. The only evidentiary authority that Doing
Steel cites in its Local Rule 56.1 Statement is a citation to its own Statement of Contested Issues of
Fact and Law in the parties’ Final Pretrial Order. (PI’s L.R. 56.1 Statement, Ex. F J 60) (emphasis
added). In that portion of the final pretrial order, Doing Steel asserts that, “[t}he completion of these
handrails had no structural significance to the building, in no way impeded any other contractor’s or
subcontractor’s completion of their work, and the cost of completing the handrails was
approximately $1496.00.” Jd. This statement has nothing to do with the issue raised on summary
judgment by Doing Steel, i.e. whether Castle could demonstrate at trial that it incurred costs in
completing Doing Steel’s work (aside from the costs of installing the handrail). Thus, Doing Steel
does not even meet its basic burden of “‘showing’ - - that is, pointing out to the district court - - that
there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.

Although this is a sufficient ground upon which to deny summary judgment, we also observe
that Castle has met its burden of setting forth specific facts to show that there is a genuine issue of
material fact on the issue of post-termination costs, Fed. R. Civ. P. 56(e). In its response to Doing

Steel’s motion, Castle argues that, in addition to the cost of installing the handrail, Doing Steel was

‘Incidentally, if we accept Doing Steel’s claims as true, then we would be inclined to grant
summary judgment in favor of Castle, since Doing Steel admits to liability for the cost of the handrail
installation.


‘the initial burden on the moving party to 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
US. 317, 323 (1986) (citations omitted). Once the moving party has met this burden of production,
the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial."
Fed. R. Civ. P. 56(¢). In deciding whether summary judgment is appropriate, we must accept the
nonmoving party's evidence as true, and draw all inferences in that party's favor. See Anderson, 477
USS. at 255.

IL Discussion

A. First Affirmative Defense: Set Off for Costs Incurred by Castle After
Doing Steel’s Termination

In its first affirmative defense, Castle claims that it is entitled to a set off against any
damages awarded to Doing Steel. Upon its termination from the Subcontract, Castle argues, Doing
Steel became liable for costs incurred in completing Doing Steel’s assigned tasks. Doing Steel does
not contest the legal sufficiency of Castle’s defense since the Subcontract explicitly allows Castle to
recover the costs of performing Doing Steel’s work upon Doing Steel’s termination. (Subcontract,
Art. 10.1.2.) Rather, Doing Steel argues that summary judgment is proper because Castle has not
presented sufficient evidence to create a genuine issue of material fact for trial on the issue of
whether Castle is entitled to any post-termination costs.

As stated above, in assessing a summary judgment motion, we must first consider whether
Doing Steel has met its initial burden of production, identifying evidence that would demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Doing Steel attempts to meet its burden by admitting that when it ceased working on the project it


B) Second Affirmative Defense: Set Off for Delay

In its second affirmative defense, Castle claims that it is entitled to damages’ in the amount
paid by Castle as a result of Doing Steel’s alleged delays in completing its work on the school
project. Doing Steel believes that the Subcontract does not allow for recovery for delays in
performance. We disagree. The Subcontract is replete with covenants regarding the timing of the
construction project. For example, Article 3.1 of the Subcontract states that, “[t]ime is of the essence
for both parties.” In Article 3.2, Doing Steel agreed to be bound by Castle’s schedule of work, and,
in Article 3.4, it promised that it would coordinate its work with other contractors “so as not to delay,
interfere or damage such other contractors’ or suppliers’ work or performance.” Finally, Article
10.1.1 of the Subcontract specifically enumerates remedies that are available in case Doing Steel
fails to maintain Castle’s schedule of work.

In spite of all of the contractual promises Doing Steel made to complete its work on time,
Doing Steel claims that Castle cannot recover for delay and overtime costs because Article 10.1.2 of
the Subcontract limits contractual remedies to those costs incurred by Castle in “performing [Doing
Steel’s] work.” Presumably, Doing Steel's rationale is that, even if Castle paid overtime to other

contractors to make up for Doing Steel’s tardiness, those payments ultimately went to complete the

7Castle labels its second affirmative defense as one for “damages.” This is a misnomer. There is
no such thing as an affirmative defense for “damages” under federal law. Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure, Civil 2d., § 1271 (1990) (noting that federal common law
dictates the types of claims that may be asserted as affirmative defenses). In fact, Castle seems to be
asserting yet another set off defense, claiming that it is entitled to a set off against any damages awarded
to Doing Steel because of Doing Steel’s alleged delays in performing on the Subcontract. See Codest
Eng’g v. Hyatt Int'l Corp., 954 F. Supp. 1224, 1230 (N.D. IIL. 1996) (recognizing set off as an affirmative
defense in a breach of contract action). Castle is not prejudiced by this mistake in nomenclature,
however, since a failure to correctly label a defense is not grounds for dismissal of that defense as long as
the opposing party is not prejudiced by the mistake. Wright & Miller, § 1274. Here, Doing Steel is not
prejudiced by the mistake because the substance of Castle’s defense is the same regardless of whether it
is labeled as a claim for damages or as one for set off. We therefore consider the merits of Doing Steel’s
summary judgment motion with regard to Castle’s second affirmative defense.


Minute Onder Form (06/97)

United States District Court, Northern District of Minois

COFRCP4(m) ClLocal Rule 41.1 CUFRCP41(a(1) CI FRCP41(a)(2).

& 70-2) Castle Construction Corporation’s First and Second Affirmative Defenses.

a) (For further detail see order attached to the original minute order.]

neipe Mgtrte Judge Marvin Aspen “oan Asioed Sudge

CASE NUMBER 02 C 1674 DATE 2/18/2004
CASE Doing Steel, Inc. vs. Castle Construction Corporation
TITLE

[In the following box (a) indicate the party filing the motion, ¢-g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.

DOCKET ENTRY:

qa Oo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

Q) Oo Answer brief to motion due__. Reply to answer briefdue__.

(4) oO Ruling/Hearingon__—setfor__—_sat

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__ set for __—at.

(6) oO Pretrial conference(held/continued to} [set for/re-set for]on___setfor__—sat__.

(7) o Trial{set for/re-set for]on__—_aat.

(8) oO [Bench/Jury trial] [Hearing] held/continued to__at

(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

ao [Other docket entry] Enter Memorandum Opinion and Order: This Court denies Doing Steel’s
motion for partial summary judgment (53-1 & 54-1, & 70-1) or, in the alternative, to Strike (53-2, 54-2,

No notices required, advised in open court.

No notices required. “umber of notices

Document
Number

Y | Notices maited by judge’s staff. FEB 18 2004

Notified counsel by telephone. gute de

Docketing to mail notices.

Mail AO 450 form. eae ile

waeQ ie sages
Copy to judge/magistrate judge. LuAaca | nasa
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courtroom ee : nay date mailed notice
GL deputy’s it] Ores a
initials —
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* _“cetitral Clerk's Office mailing deputy iniiala



pronouncement, however, that “(t]he evidence need not be admissible in form (for example,
affidavits are not normally admissible at trial), but it must be admissible in content.” Stinnett v. Iron
Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). For example, Doing
Steel challenges the submission of invoices which purport to reflect overtime costs incurred by
Castle in making up for Doing Steel’s failure to comply with the construction schedule. Doing Steel
argues that we should disregard these documents because they contain no language linking the
overtime charges with Doing Steel’s alleged delays. In essence, Doing Steel is claiming that we

should not consider those documents because they are not properly authenticated. See Fed. R. Evid.
901(a). While it is true that these documents would need to be authenticated to be admissible at trial,
the only relevant issue for purposes of summary judgment is whether their content is admissible,
which it is. For example, Castle could call the person who performed the overtime work to testify
that he did the work at a given cost and then call someone else to demonstrate that the overtime work
was necessary as a result of Doing Steel’s delays. We may therefore consider the invoices for
purposes of the present motion.

Doing Steel advances similar faulty evidentiary arguments with regard to the remainder of
Castle’s proffered evidence. Since Doing Steel does not cite to any evidence that is inadmissible in
content, however, we consider all of the evidence put forth by Castle in considering the merits of
Doing Steel’s motion for partial summary judgment. We find that Castle has more than met its
burden of showing that there is a genuine issue of material fact with regard to Castle’s second

affirmative defense.

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“Steel caused any delays on the project, and certainly does not suggest the absence of a genuine issue
of material fact on the issue.

Furthermore, Doing Steel offers only one piece of affirmative evidence in support of its
assertion that it “continuously performed.” Specifically, Doing Steel provides invoices, which were
submitted by Castle to the school district, in which Castle requested payment for work performed by
Doing Steel. Doing Steel argues that these requests are evidence of Doing Steel’s satisfactory
performance of the Subcontract. It is true that the pay requests may constitute evidence at trial on
the question of whether Doing Steel performed some of its tasks under the Subcontract. However,
the pay slips do not speak at all to the issue of whether or not Doing Steel performed some its work
late or whether Castle incurred costs as a result of those alleged delays. Thus, the submissions do
not demonstrate the absence of a genuine issue of material fact with regard to Castle’s second
affirmative defense.

Furthermore, we note that Castle has met its burden of setting forth specific facts showing
that there is a genuine issue for trial on its second affirmative defense. See Fed. R. Civ. P. 56(e).
Castle submitted a stack of invoices from various contractors purporting to catalogue the overtime
costs incurred by Castle in correcting Doing Steel’s delays. In addition, Castle provides deposition
transcripts of Robert Gates, Castle’s Vice President, and Reid Specht, Castle’s Superintendent,
which detail the costs associated with Doing Steel’s alleged failure to maintain Castle’s schedule of
work,

Doing Steel attempts to rebut much of this evidence by challenging its admissibility at trial.
It is true that, in ruling on a motion for summary judgment, a court may only consider evidence that
would be admissible at trial. Fed. R. Civ. P. 56(e) (requiring that supporting affidavits “shall set

forth such facts as would be admissible at trial.”). Doing Steel misses the Seventh Circuit’s

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. responsible for, and failed to complete, some aluminum work on the school project. Doing Steel
retorts that it is impossible for Castle to recover under the Subcontract for aluminum work because
1) Doing Steel is not a fabricator of aluminum; and 2) Article 15.2 of the Subcontract specifically
provides that the scope of work is only to “furnish and install all structural and miscellaneous steel
work.” (PI.’s L.R. 56.1 Statement {f 6-7) (emphasis in original). There are several problems with
these arguments. First, Doing Steel points to no evidence to support its assertion that it is not a
fabricator of aluminum. Second, although Doing Steel correctly cites one portion of Article 15.2 of
the Subcontract, it fails to note the remainder of that Article. Article 15.2 also requires Doing Steel
to perform all work in accordance with “specification division 5." Specification division SA, which
arguably could be considered a part of specification division 5,° describes requirements for
performing aluminum work. (Def.’s L.R. 56.1 Statement, Ex. Y, § 5A.07) (providing that “[w]here
aluminum is to be fastened to steel supporting members or other dissimilar metal parts, keep
aluminum from direct contact with such parts. . .”). While this portion of the Subcontract does not
necessarily prove that Doing Steel was required to produce aluminum, it suggests that supplying
aluminum may have been one of Doing Steel’s contractual duties. Thus, there is a genuine issue of
material fact for trial as to what costs (if any) Castle incurred in performing Doing Steel’s work after
Doing Steel’s termination. Summary judgment is therefore denied with respect to Castle’s first

affirmative defense.

‘The parties do not present arguments on the issue of whether, by contracting to complete the
work listed in specification division 5, Doing Steel was also bound to perform the work described in
specification division 5A. We therefore do not consider that issue in the present motion, noting only that
Castle has presented enough evidence to create a genuine issue of material fact for trial.

7


There are several areas of disagreement between the parties. First, they dispute the amount of
work Doing Steel left unfinished after Castle terminated Doing Steel from the school project. Castle
claims that Doing Steel never provided or installed aluminum railings, as was required by the
Subcontract. (Def.’s L.R. 56.1 Statement f] 6-7.) The parties agree that Doing Steel never fabricated
or installed any aluminum for the school project. Id. However, Doing Steel denies that it was required
to do so, claiming that it works only with steel, that it is “neither an installer nor fabricator of
aluminum,” and that it was only contractually required to perform work related to furnishing and
installing steel work for the school project. (Pl.’s L.R. 56.1 Statement {f 6-7.)

The parties also disagree over whether Doing Steel completed its work in a timely manner.
Doing Steel claims that it worked “continuously” on the school project from December of 1999 to
December of 2000. (Pl.’s L.R. 56.1 Statement { 8.) Castle responds that Doing Steel began work on
the project over one month late, created numerous other delays, and that those delays prevented other
contractors from beginning their portions of the school project as scheduled. (Def.’s L.R. 56.1 Statement
21.) Ultimately, Castle asserts that it was required to make up for Doing Steel’s tardiness, incurring
“$144,655.27 in acceleration costs stemming from overtime paid to subcontractors, roofer expenses for
changing the sequence of work, overtime paid to Castle, and overhead expenses” in order to complete
the school project on time. (Def.’s L.R. 56.1 Statement J 25.)

Doing Steel brought the present action in 2002, alleging that Castle breached the Subcontract
by failing to pay Doing Steel. Castle asserts three affirmative defenses based on Doing Steel’s alleged
failure to perform under the Subcontract. Two of Castle’s affirmative defenses are the subject of the

present motion for summary judgment?

3Doing Steel styles its motion as one for “partial” summary judgment on Castle’s first two
affirmative defenses. However, at the end of its motion, Doing Steel requests that we “enter judgment in
its favor and against Defendant Castle Construction, [and that we] grant Doing Steel damages.” (Mem.

3


56.1 Statements of Material Facts. In 1999, Defendant Castle Construction entered into a contract with
Illinois School District #148 to build a school in Dolton, Illinois. On September 8, 1999, Plaintiff Doing
Steel entered into a subcontract agreement with Castle for steel work to be done in connection with the
school construction project. (Pl.’s L.R. 56.1 Statement, Ex. A) (“Subcontract”). Castle agreed to pay
$721,000 to Doing Steel for “satisfactory performance” of Doing Steel’s obligations under the
Subcontract. (Subcontract, Art. 4.) Castle also authorized Doing Steel to perform extra work by
approving change orders to the original Subcontract agreement in the amount of $9,146.95,” for a total
contract price of $730,146.95.

Doing Steel began work on the project in December 1999 and stopped working in December of
2000. On January 5, 2001, Castle issued a notice terminating Doing Steel as a subcontractor. Doing
Steel filed the present lawsuit in July 2002, claiming that it stopped working on the project in 2000
because it had not been paid by Castle for ten months and that it is still owed $220,651.95 under the
Subcontract, (Pl.’s L.R. 56.1 Statement 8.) Both parties agree that Castle requested and received from
the school district payments “based on the amount of structural steel in place” totaling $114,520.50, and
that Castle never passed that money on to Doing Steel. Castle claims that the reason Doing Stee! was
not paid was because Doing Steel had not provided “satisfactory performance” as required by the
Subcontract because it failed to meet construction deadlines, interfered with the work of other
contractors, and ultimately left some of its work unfinished, (Def.’s L.R. 56.1 Statement { 8.) Doing
Steel, on the other hand, maintains that it satisfactorily performed most of its contractual obligations.

(Pl.’s L.R. 56.1 10.)

Doing Steel claims that the excess amount authorized was $11,447.95. The documentation that
Doing Steel provides, however, adds up to only $9,146.95. Doing Steel accidentally provided two copies
of one of the change orders and thus added that charge into its calculation of the total amount of the
change orders twice.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS POCKETED

CORPORATION, an Illinois corporation,

Defendant.

EASTERN DIVISION
FEB 1 8 2004

DOING STEEL, INC., a Missouri ) .
corporation, )
)
Plaintiff, )
)

v. ) Case No. 02 C 1674

)
CASTLE CONSTRUCTION )
)
)
)
)

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff, Doing Steel, Inc., (“Doing Steel”) filed a three-count complaint against Defendant
Castle Construction Corporation (“Castle”) alleging breach of contract, conversion, and breach of
fiduciary duty. In an earlier opinion, we dismissed Doing Steel’s conversion and breach of fiduciary
duty claims. See Doing Steel, Inc. v. Castle Const. Corp., No. 02-C-1674, 2002 WL 31664476 (N.D.
Il. Nov. 21, 2002). Doing Steel then filed the present Motion for Partial Summary Judgment or, In the
Alternative, to Strike Castle Construction Corporation’s First and Second Affirmative Defenses. For
the reasons set forth below, we deny both the motion for partial summary judgment as well as the
motion to strike.’

BACKGROUND
The following facts, unless otherwise specified, have been culled from the parties’ Local Rule

‘Although Doing Steel has labeled its motion as one for summary judgment or, in the alternative,
to strike, we confine our discussion to whether summary judgment is appropriate. Federal fe Civil

Procedure 12(f) requires that a motion to strike be presented “by a party within 20 days after the service

of the pleading upon the party.” Doing Steel’s motion was presented almost two months after Castle

filed its responsive pleading, well after the twenty day deadline. We therefore need not consider the

merits of the motion to strike. | Q 0


CONCLUSION
For the foregoing reasons, this Court denies Doing Steel’s Motion for Partial Summary

Judgment or, In the Alternative, to Strike Castle Construction Corporation’s First and Second

Affirmative Defenses. It is so ordered. ZInD

||.) MARVINE. ASPEN 7
||, | United States District Judge
jon 8

Dated ue ho Sf

7

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