Leif Hinterberger v. City of Indianapolis ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐3365
LEIF HINTERBERGER, et al.,
Plaintiffs‐Appellants,
v.
CITY OF INDIANAPOLIS,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16‐cv‐1341 — Sarah Evans Barker, Judge.
____________________
ARGUED JUNE 1, 2020 — DECIDED JULY 15, 2020
____________________
Before RIPPLE, WOOD, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Courts expect parties to know and
follow local rules of practice. Failing to do so can prove fatal.
Leif Hinterberger’s case shows how and why. The district
court rejected his statement of facts for violating the Southern
District of Indiana’s rule governing summary judgment prac‐
tice. The statement misrepresented the evidence, contained
inaccurate and misleading citations to the record, and pre‐
sented improper arguments rather than materially disputed
2 No. 19‐3365
facts. We empathize with the district court’s exasperation and
see no abuse of discretion in its striking Hinterberger’s state‐
ment. Nor did the district court commit any error in entering
summary judgment against Hinterberger on each of his
claims. So we affirm.
I
A
Leif Hinterberger sought to establish a commercial and
residential development—a so‐called mixed‐use develop‐
ment—in Indianapolis’s midtown area. Through a series of
letters and meetings, the City led Hinterberger to believe it
would help fund the development. But the deal ultimately fell
through, leaving Hinterberger without any public funding for
the project and substantial losses. He sued the City in federal
court to recover.
The ill‐fated project began in 2005, when Hinterberger ac‐
quired land at the intersection of 49th Street and College Av‐
enue with the intention of developing a small commercial es‐
tablishment called the Uptown. He originally planned not to
seek any public assistance. But that changed when Hinter‐
berger spoke to Maury Plambeck, the director of the Indian‐
apolis Department of Metropolitan Development, about the
project later that summer. Plambeck suggested that Hinter‐
berger acquire the other half of the block to add a residential
component. Plambeck noted that the City could help pay for
the mixed‐use development through various means, such as
federal grants and tax increment financing (often short‐
handed as TIF). He recommended that Hinterberger work
with Charles Cagaan, a partner with Mansur Real Estate who
No. 19‐3365 3
was more familiar with this public funding process. Hinter‐
berger did so over the next couple of years.
By 2007 Hinterberger had finished his financial analyses,
acquired the adjacent land as Plambeck suggested, and ob‐
tained a rezoning of the property. He was ready to begin con‐
struction, which he estimated would take between 16 and 19
months. But around this time, the economy took a sharp
downturn and the Uptown development stalled.
The outlook brightened over the next few years. The City
sent Hinterberger several letters renewing its commitment to
the Uptown and proposing various conditional public financ‐
ing options. A letter dated April 4, 2008, for example, stated
that “the City of Indianapolis is prepared to offer financial
support” to the tune of over $1 million in grants. And in a No‐
vember 12, 2009 letter, the City offered to borrow $750,000 to
help get the project started. Each of those (and other) letters
contained preconditions that Hinterberger had to satisfy to re‐
ceive public funding. Hinterberger never met the precondi‐
tions, however, and the City never dispersed any funds to
support the Uptown.
What resulted for Hinterberger was acute financial dis‐
tress. By 2010 he defaulted on his loans and had to sell the
additional property that he had purchased for apartments
three years earlier.
Despite these difficulties, in September 2011 the City still
reassured Hinterberger with a “letter of support” that was
“intended to show investors that the City is fully committed
to the Uptown Project.” Indeed, the City reiterated its previ‐
ous offer of $1 million in grant support for the Uptown if Hin‐
terberger could regain control of the entire block. It also noted
4 No. 19‐3365
that it was considering implementing a Midtown TIF redevel‐
opment district that would encompass the site, and TIF funds
might be available soon. Hinterberger pushed forward, hop‐
ing he could still realize his project.
But establishing a Midtown TIF district took time. The
City created it in July 2012, but TIF funding did not become
available for distribution until May 2015. In the meantime,
Hinterberger went bankrupt and what remained of his prop‐
erty was sold at a sheriff’s sale on August 15, 2012. So, after
seven years of work on the Uptown project, Hinterberger lost
everything. Years later—after the TIF money had become
available—the City worked with other firms to redevelop the
midtown neighborhood.
B
Litigation followed. On May 31, 2016, Hinterberger sued
the City of Indianapolis, Mansur Real Estate Services, and
Cagaan in the Southern District of Indiana. The complaint ad‐
vanced eight claims, including ones under the U.S. Constitu‐
tion, against the City of Indianapolis. Hinterberger likewise
alleged claims under Indiana law against all defendants.
Discovery proceeded for almost two years. The City even‐
tually filed a motion for summary judgment, which the dis‐
trict court granted in full. How the district court came to that
decision is front and center in this appeal. And the proper
starting point comes with a few words of background on sum‐
mary judgment practice in federal court.
Summary judgment is all about determining whether facts
are disputed to a degree to warrant a trial or instead entitle a
party to prevail as a matter of law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986). The procedure
No. 19‐3365 5
emerged in England in the late nineteenth century, entered
practice in state courts around 1930, and today is entrenched
in state and federal practice. See FED. R. CIV. P. 56 advisory
committee’s note to 1937 amendment; see also Arthur R. Mil‐
ler, The Pretrial Rush to Judgment, 78 N.Y.U. L. REV. 982, 1017–
18 (2003).
Summary judgment practice requires the parties and
courts alike to roll up their sleeves. Discerning the existence
of a “genuine dispute as to any material fact” can be tedious
and time consuming. Today’s Federal Rules recognize this
and strive to ease the burden on courts by requiring a “party
asserting that a fact cannot be or is genuinely disputed” to
support that position by citing “particular parts of materials
in the record” or, conversely, “showing that the materials
cited do not establish the absence or presence of genuine dis‐
pute, or that an adverse party cannot produce admissible ev‐
idence to support the fact.” FED. R. CIV. P. 56(c)(1).
Local rules often provide even further direction and have
the force of law. See Hollingsworth v. Perry, 558 U.S. 183, 191
(2010). Though the specifics may vary, many districts require
the parties to submit factual statements to assist with identi‐
fying and isolating the disputed from the undisputed—all to
help the court assess whether a particular claim should pro‐
ceed to trial or instead can be resolved on the existing record.
The aim is not to make busywork but instead “to alert the
court to precisely what factual questions are in dispute and
point the court to the specific evidence in the record that sup‐
ports a party’s position on each of these questions.” Waldridge
v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).
The Southern District of Indiana’s Local Rule 56‐1 specifi‐
cally requires that a party seeking summary judgment
6 No. 19‐3365
include a section called “Statement of Material Facts Not in
Dispute.” See S.D. Ind. Local Rule 56‐1. The party opposing
summary judgment must then respond with a “Statement of
Material Facts in Dispute” that “identifies the potentially de‐
terminative facts and factual disputes that the party contends
demonstrate a dispute of fact precluding summary judg‐
ment.” Id. In addition to prohibiting the inclusion of any ar‐
gument—which should be saved for briefing—the Local Rule
requires that all asserted material facts be supported by spe‐
cific citations. See id. The obligation falls to the parties, not the
district court. The movant’s facts are admitted unless the non‐
movant “specifically controverts” them in its factual state‐
ment, shows them to be unsupported, or demonstrates that
reasonable inferences can be drawn in its favor. Id.
After the City moved for summary judgment, Hinter‐
berger submitted his own Statement of Material Facts in Dis‐
pute. The district court rejected the statement in its entirety
for failing to comply with Local Rule 56‐1. Striking Hinter‐
berger’s statement had the practical effect of the court credit‐
ing in full the facts presented by the City in its Rule 56‐1 state‐
ment. Right to it, the court’s wholesale rejection of Hinter‐
berger’s statement doomed his case, for the facts presented by
the City left Hinterberger with no evidentiary basis to prevail
on any claim. In the end, the court entered summary judg‐
ment for the City and ordered Hinterberger’s attorneys to
show cause why they should not be sanctioned for their con‐
duct pursuant to Federal Rule of Civil Procedure 11(c).
But even after winning its summary judgment motion, the
City still did not have a final judgment, as another defendant
remained in the case. Desiring finality, the City filed a motion
under Federal Rule of Civil Procedure 54(b), which allowed
No. 19‐3365 7
the district court to find that there was no just reason for delay
and in turn to direct entry of partial final judgment as to the
City. See Constr. Indus. Ret. Fund of Rockford, Ill. v. Kasper
Trucking, Inc., 10 F.3d 465, 468 (7th Cir. 1993). Hinterberger
then appealed.
II
Hinterberger’s underlying appeal entails meaningful
complexity, with claims relating to multiple constitutional
rights, torts, a contract, and an Indiana statute. Our resolution
of the appeal does not require us to wade into those complex‐
ities, however. Because we see no abuse of discretion in the
district court’s decision to reject Hinterberger’s Rule 56‐1
statement, we must accept the facts as the district court did—
as presented by the City. Even viewing those facts in the light
most favorable to Hinterberger, he cannot prevail on any
claim. Each of his claims lack evidentiary support in the rec‐
ord—a reality that even Hinterberger’s counsel (to his credit)
candidly acknowledged during oral argument.
A
The case begins and ends with the recognition that district
courts may require strict compliance with their local rules—a
point we have recognized time and again. See, e.g., Metro. Life
Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002); Bordelon v.
Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 528 (7th Cir.
2000). We review their enforcement only for an abuse of dis‐
cretion, see Friend v. Valley View Comm. Sch. Dist. 365U, 789
F.3d 707, 710 (7th Cir. 2015), and further “give a district
judge’s interpretation of [her] court’s local rules . . . consider‐
able weight,” Cichon v. Exelon Generation Co., 401 F.3d 803, 809
(7th Cir. 2005).
8 No. 19‐3365
In response to the City’s summary judgment motion, Hin‐
terberger filed a statement of disputed material facts as re‐
quired by Local Rule 56‐1. The statement identified nine top‐
ical areas of allegedly disputed facts and from there explained
those facts in paragraphs. Measured by its appearance, Hin‐
terberger’s statement looked compliant.
But the district court’s careful review revealed that Hinter‐
berger’s statement, as the court put it, “ha[d] all the appear‐
ance of diligence and competence without a crumb of their
substance.” The court found that the statement failed to re‐
spond to the City’s account of the material facts and instead
presented a version of events replete with impermissible ar‐
gument and unsupported by citations to record evidence. The
statement, the court concluded, altogether failed to identify
the potentially determinative facts that Hinterberger con‐
tended required resolution at a trial. The court did not mince
its words: “Put simply, this is not lawyering in good faith. It
is lawyering by confusion, equivocation, and obfuscation. It is
antilawyering.”
Our own review of Hinterberger’s summary judgment
submission shows that the district court’s frustration was well
placed. A sampling of the various problems with Hinter‐
berger’s Rule 56‐1 statement proves the point:
 The statement is laden with improper and un‐
supported argument. For example, it claims that
“[a]dditional discussions with City representa‐
tives . . . repeated the promises of gap financing,
and furthered Hinterberger’s reliance and com‐
pliance with demands made on him” and “[t]he
City and its agents were actively involved in de‐
stroying not only the Uptown project and the
No. 19‐3365 9
neighboring Uptown Business Center but also
Hinterberger’s livelihood and reputation.” But
these representations come with no citations to
record evidence, as required by Local Rule 56‐1.
 Many of the citations are misleading, seemingly
added only to create the appearance of support.
For instance, one sentence about the City’s in‐
terference with Hinterberger’s attempt to nego‐
tiate the repurchase of his property purports to
draw support from Exhibit 104. But our own re‐
view shows that Exhibit 104 contains 28 fully re‐
dacted (entirely blacked‐out) pages. In another
place, Hinterberger’s statement cites both Ex‐
hibit 49 and Exhibit 126, which it turns out are
the exact same email.
 Some citations reveal serious misstatements of
the record evidence. One part of Hinterberger’s
statement represents that a particular witness,
Ryan Vaughn, characterized the City’s letters of
commitment as “unconditional.” The statement
comes with a citation to Vaughn’s deposition
testimony. But in his deposition, Vaughn only
testified that that the letters were “casual” and
“pretty clear that those offerings [were] contin‐
gent.” Another part of Hinterberger’s statement
represents that a different City employee “testi‐
fied that he could not work with Hinterberger
due to Vaughn’s statements.” But that em‐
ployee’s deposition does not even mention
Vaughn or his comments.
10 No. 19‐3365
Faced with such noncompliance with Local Rule 56‐1, the
district court committed no abuse of discretion in striking
Hinterberger’s statement of disputed material facts. Or, as we
put a similar observation on a prior occasion, Hinterberger’s
statement was “so full of argument, evasion, and improper
denials that it defeat[ed] the whole point of [the summary
judgment rule]—to identify just what facts are actually in dis‐
pute.” Bordelon, 233 F.3d at 528. Striking the entire statement
(rather than only the offending material) was not too harsh
because requiring the district court to sift through “improper
denials and legal argument in search of a genuinely disputed
fact” would defeat the purpose of the rule. Id. at 529. The dis‐
trict court does not shoulder the obligation to separate the fair
from the foul, doing the work for the parties and identifying
what facts are truly disputed and may require resolution at a
trial.
It makes no difference that the district court, alongside
striking Hinterberger’s Rule 56‐1 statement, declined to sanc‐
tion his counsel. The district court had considerable discretion
in deciding whether to issue Rule 11 sanctions. See 5A
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE & PROCEDURE § 1336.1 (4th ed.); National Hockey
League v. Metro. Hockey Club, 427 U.S. 639 (1976). Striking a
noncompliant Rule 56‐1 statement that creates an intolerable
amount of work for the court but later declining to impose
sanctions was reasonable. Though it was Hinterberger (and
not his counsel) that ultimately paid the price of the deficient
Rule 56‐1 statement, it is well established that “[a]ttorneys’ ac‐
tions are imputed to their clients, even when those actions
cause substantial harm. A litigant bears the risk of errors
made by his chosen agent.” Wade v. Soo Line R.R. Corp., 500
F.3d 559, 564 (7th Cir. 2007).
No. 19‐3365 11
B
Given the district court’s acceptance of the City’s facts, all
claims resolve in its favor at summary judgment. Without his
own statement of material facts, Hinterberger had no way to
show a factual dispute.
We do not need to march through each of Hinterberger’s
claims against the City. Two brief examples illustrate the
point.
Hinterberger brought a so‐called class of one claim under
the Equal Protection Clause of the Fourteenth Amendment.
See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To
survive summary judgment, he had to point to evidence cre‐
ating a trial issue on whether he “has been intentionally
treated differently from others similarly situated” when
“there is no rational basis for the difference in treatment.” Id.
But such evidence is altogether lacking in the population
of summary judgment facts credited and considered by the
district court. Missing from Hinterberger was any evidence to
rebut the City’s argument that it rationally treated other de‐
velopers differently because they had better timing and met
the conditions of the public funding. This would be a difficult
claim even with his Rule 56‐1 statement. Without it, the claim
fails out of the gate.
Hinterberger’s state law claims likewise fail. He alleged
that the City breached the nondisclosure agreement signed by
Charles Cagaan on behalf of Mansur Real Estate. But, as it ob‐
served in its own Rule 56‐1 statement of undisputed facts, the
City was not a party to the agreement. We do not consider any
facts Hinterberger attempts to offer on appeal about the City
agreeing to the terms through its agent or Cagaan’s privity to
12 No. 19‐3365
the City. And because “[i]t goes without saying that a contract
cannot bind a nonparty,” Northbound Grp., Inc. v. Norvax, Inc.,
795 F.3d 647, 650 (7th Cir. 2015), the summary judgment rec‐
ord cannot be said to reveal a factual dispute.
For these reasons, we AFFIRM.