1ST Class Legal (I.S.), Ltd. v. Niro, et al.

Northern District of Illinois, ilnd-1:2016-cv-06793

REPLY by Plaintiff 1st Class Legal (I.S.), Ltd., Counter Defendant 1st Class Legal (I.S.), Ltd. to Rule 56 statement {{44}} and Additional Facts Requiring Denial of Summary Judgment and Additional Material Facts

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Case: 1:16-cv-06793 Document #: 49 Filed: 03/14/17 Page 1 of 5 PageID #:573 MARC S. MAZER WEILL & MAZER, A Professional Corporation 90 New Montgomery Street Suite 1400 San Francisco, CA 94105 Telephone: (415) 421-0730 STEVE M. VARHOLA LYMAN LAW FIRM, LLC 227 West Monroe Street, Suite 2650 Chicago, Illinois 60606 (312) 762-9517 Attorneys for Plaintiff and Counter-Defendant 1st CLASS LEGAL (I.S.), LTD. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 1st CLASS LEGAL (I.S.), LTD., a foreign) Case No.: 16-cv-6793 corporation,)) Plaintiffs,)) Honorable Robert. M. Dow, Jr. v.)) RAYMOND NIRO, individually and doing) business as NIRO, HALLER & NIRO, an) Illinois Law Partnership, NIRO LAW, LTD.,) an Illinois Corporation, formerly known as) NIRO, HALLER & NIRO, LTD.,)) Defendants.)) and related Counter claim)) PLAINTIFF-COUNTERDEFENDANT'S REPLY TO NIRO'S ADDITIONAL FACTS REQUIRING DENIAL OF SUMMARY JUDGMENT AND ADDITIONAL MATERIAL FACTS Plaintiff-Counterdefendant 1st CLASS LEGAL (I.S.), LTD. ("Plaintiff") responds to Defendant Niro Law, Ltd.'s (hereinafter "Niro") "additional facts" as follows: 10. Plaintiff objects to this asserted fact based upon Niro's Exhibit 1 on the grounds that it lacks any foundation. The interpretation of one of a chain of 13 emails is pure speculation on the part of Niro. The referenced email is subject to various interpretations. Plaintiff objects PLAINTIFF'S REPLY TO NIRO'S ADDITONAL FACTS CASE NO. 1:16-cv-06793 1 Case: 1:16-cv-06793 Document #: 49 Filed: 03/14/17 Page 2 of 5 PageID #:574 to this asserted fact on the grounds that it is not relevant to the pending Motion and does not necessarily relate to the subject loans but, instead, refers to a totally unrelated matter entitled "Grail and some others". Furthermore, the asserted fact cannot be considered because it is extrinsic evidence. "Under Illinois's 'four corners' rule, if a written agreement is unambiguous, then the scope of the parties' obligations must be determined from the contract language without reference to extrinsic evidence." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 372 (7th Cir. 2009); see also, Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 993 (7th Cir. 2007). 11. Plaintiff objects to this asserted fact based upon Niro's Exhibit 2 on the grounds that it lacks foundation, and is not relevant to the issues in the pending Motion. Niro has not claimed that the subject written agreements are ambiguous and, therefore, the interpretation of the agreements in issue are a matter of law. Furthermore, the asserted fact cannot be considered because it is extrinsic evidence. "Under Illinois's 'four corners' rule, if a written agreement is unambiguous, then the scope of the parties' obligations must be determined from the contract language without reference to extrinsic evidence." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 372 (7th Cir. 2009); see also, Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 993 (7th Cir. 2007). 12. Plaintiff objects to this asserted fact based upon Niro's Exhibit 3 on the grounds that it lacks foundation, is hearsay, and regardless, it is not relevant to the issues pending in this Motion. No ambiguity has been claimed, and no extrinsic evidence is proper. Therefore, the interpretation of the agreements in issue are a matter of law. Furthermore, the asserted fact cannot be considered because it is extrinsic evidence. "Under Illinois's 'four corners' rule, if a written agreement is unambiguous, then the scope of the parties' obligations must be determined PLAINTIFF'S REPLY TO NIRO'S ADDITONAL FACTS CASE NO. 1:16-cv-06793 2 Case: 1:16-cv-06793 Document #: 49 Filed: 03/14/17 Page 3 of 5 PageID #:575 from the contract language without reference to extrinsic evidence." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 372 (7th Cir. 2009); see also, Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 993 (7th Cir. 2007). 13. Plaintiff objects to this asserted fact based upon Niro's Exhibit 4 on the grounds that it lacks foundation and is not relevant to the issues pending in this Motion. No ambiguity has been claimed, and no extrinsic evidence is proper. Therefore, the interpretation of the agreements in issue are a matter of law. Furthermore, the asserted fact cannot be considered because it is extrinsic evidence. "Under Illinois's 'four corners' rule, if a written agreement is unambiguous, then the scope of the parties' obligations must be determined from the contract language without reference to extrinsic evidence." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 372 (7th Cir.2009); see also, Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 993 (7th Cir.2007). 14. Plaintiff objects to this asserted fact based on Niro's Exhibit 5 on the grounds that it lacks foundation and is not relevant to the issues raised in the pending Motion. No ambiguity has been claimed, and no extrinsic evidence is proper. Therefore, the interpretation of the agreements in issue are a matter of law. Furthermore, the asserted fact cannot be considered because it is extrinsic evidence. "Under Illinois's 'four corners' rule, if a written agreement is unambiguous, then the scope of the parties' obligations must be determined from the contract language without reference to extrinsic evidence." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 372 (7th Cir. 2009); see also, Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 993 (7th Cir. 2007). 15. Plaintiff objects to this asserted fact based on Niro's Exhibit 6 on the grounds it lacks foundation and it is not relevant to the issues raised in this pending Motion. No ambiguity PLAINTIFF'S REPLY TO NIRO'S ADDITONAL FACTS CASE NO. 1:16-cv-06793 3 Case: 1:16-cv-06793 Document #: 49 Filed: 03/14/17 Page 4 of 5 PageID #:576 has been claimed, and no extrinsic evidence is proper. Therefore, the interpretation of the agreements in issue are a matter of law. Furthermore, the asserted fact cannot be considered because it is extrinsic evidence. "Under Illinois's 'four corners' rule, if a written agreement is unambiguous, then the scope of the parties' obligations must be determined from the contract language without reference to extrinsic evidence." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 372 (7th Cir. 2009); see also, Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 993 (7th Cir. 2007). PLAINTIFF'S ADDITIONAL UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 16. In Defendant's Exhibit 3 attached to its "Additional Facts" submitted in opposition to this Motion, there is an email from Ray Niro to Plaintiff dated October 14, 2013, also produced by Niro in discovery in this action, which states that "the court granted summary judgment of patent invalidity and no infringement in Oplus, so you should not make further payments in that case." Ray Niro also stated in the email to "Hold payments on 21srl, as well". 17. Plaintiff's Exhibit 3 (attached hereto) is an example of a "drawdown request" produced by Niro in discovery in this action, in which Niro characterized the Loan Agreement as a Loan. Niro produced copies of each of its "drawdown requests" submitted pursuant to the Master Loan Agreement in the same format, each of which characterized the advance as a loan. 18. Plaintiff's Exhibit 4 (attached hereto) is a December 1, 2011 email from Ray Niro indicating that Niro wanted the subject Loan Agreement to be characterized as a Loan because it was concerned about "ethics issues" so Ray Niro suggested that the structure "may have to be a loan for the payment of expenses and fees, not the splitting of legal fees with non-lawyers. Dated: March 14, 2017 PLAINTIFF'S REPLY TO NIRO'S ADDITONAL FACTS CASE NO. 1:16-cv-06793 4 Case: 1:16-cv-06793 Document #: 49 Filed: 03/14/17 Page 5 of 5 PageID #:577 Respectfully submitted, 1ST CLASS LEGAL (I.S.), LTD. By: /s/Marc S. Mazer Marc S. Mazer WEILL & MAZER, A Professional Corporation 90 New Montgomery Street, Suite 1400 San Francisco, CA 94105 (415) 421-0730 Attorneys for Plaintiff and Counter-Defendant 1st Class Legal (I.S.), Ltd. CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that on March 14, 2017, he caused the foregoing Plaintiff and Counter-Defendant's, 1st CLASS LEGAL, LTD., Reply to Niro's Additional Facts Requiring Denial of Summary Judgment and Additional Material Facts to be served upon all counsel of record via the court's electronic docketing system. Dated: March 14, 2017 1ST CLASS LEGAL (I.S.), LTD. By: /s/Steve M. Varhola Steve M. Varhola LYMAN LAW FIRM, LLC 227 West Monroe Street, Suite 2650 Chicago, Illinois 60606 (312) 762-9517 Attorneys for Plaintiff and Counter-Defendant 1st Class Legal (I.S.), Ltd. PLAINTIFF'S REPLY TO NIRO'S ADDITONAL FACTS CASE NO. 1:16-cv-06793 5