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Post by moderndaycoach on Jun 17, 2019 14:14:05 GMT -5
I personally think the whole thing is old news and overblown. The people who seem to do all of this complaining sound like they are jealous of everything Sports Performance has accomplished and will continue to accomplish. Let it go. This reads as someone completely ignorant of the situation other than what they have heard about, or someone that has been effected by the negativity directed at the butler's in their own business dealings. No one is jealous of what all of those athletes have accomplished, everyone is just outraged a child rapist has walked free and aggressively tried to destroy peoples lives for speaking out against him and his wife in the decades that have followed the initial outing of the travesties.
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Post by itsallrelative on Jun 17, 2019 15:42:33 GMT -5
Am I the only one who is wondering why the JVA and AAU who know that Rick is still coaching allow SPRI to register teams. I would hope that all organization that know clubs are allowing banned coaches to still coach just disallow the clubs from participating in any events. Maybe I am the only one that feels that way but allowing banned coaches to coach team registered with your organization just seems wrong to me. Unless there is video proof of Rick coaching these teams, to ban them is to invite a lawsuit....right??? He's not on their rosters, website, etc....
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Post by Phaedrus on Jun 17, 2019 19:34:54 GMT -5
Am I the only one who is wondering why the JVA and AAU who know that Rick is still coaching allow SPRI to register teams. I would hope that all organization that know clubs are allowing banned coaches to still coach just disallow the clubs from participating in any events. Maybe I am the only one that feels that way but allowing banned coaches to coach team registered with your organization just seems wrong to me. Unless there is video proof of Rick coaching these teams, to ban them is to invite a lawsuit....right??? He's not on their rosters, website, etc.... I think AAUs or it might be Disney who said he is banned from the facilities. So he doesn't game coach, at the AAUS. Can't prove that he is or is not coaching the team practices because they are practicing at their private practice facility.
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Post by Deleted on Jun 21, 2019 6:19:59 GMT -5
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants. Case No. 1:18-cv-1465 Honorable Matthew F. Kennelly PLAINTIFF’S MOTION PURSUANT TO FED. R. CIV. P. 56(d) Plaintiff, Laura Mullen (“Plaintiff”), pursuant to Fed. R. Civ. P. 56(d), through her undersigned counsel, respectfully moves this Court for certain additional discovery that is required to respond to the motion for summary judgment filed by Defendants GLV, Inc., Rick Butler, and Cheryl Butler (together, “Defendants”). In support of this Motion, Plaintiff states as follows: 1. On May 28, 2019, Defendants filed their motion for summary judgment. (Dkt. 144.) 2. On June 6, 2019, the Court ordered Plaintiff to file a Federal Rule of Civil Procedure 56(d) statement containing certain discovery needed in order to respond to Defendants’ summary judgment motion. (Dkt. 152.) 3. Fed. R. Civ. P. 56(d) states that “f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, Case: 1:18-cv-01465 Document #: 154 Filed: 06/20/19 Page 1 of 5 PageID #:4172
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Post by volleyjeep on Jun 21, 2019 11:52:32 GMT -5
2. On June 6, 2019, the Court ordered Plaintiff to file a Federal Rule of Civil Procedure 56(d) statement containing certain discovery needed in order to respond to Defendants’ summary judgment motion. (Dkt. 152.) 3. Fed. R. Civ. P. 56(d) states that “ f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, Case: 1:18-cv-01465 Document #: 154 Filed: 06/20/19 Page 1 of 5 PageID #:4172 For those that are stupid like me, what does this mean?
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Post by Phaedrus on Jun 21, 2019 12:47:53 GMT -5
From a lawyer friend.
It means Butlers asked for the case to be dismissed without a trial (summary judgment). Plaintiff has to respond, but said we can’t adequately respond with XYZ information, so extend the deadline for us to respond and allow us to get additional discovery. Court asked plaintiff to clarify what discovery they wanted and needed to respond.
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Post by Deleted on Jun 21, 2019 14:04:57 GMT -5
The full docket is 20pgs with exhibits. Working from mobile so having some trouble posting effectively. If full docket is not visible on courtlistener.com, I will post full docket next week.
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Post by why on Jun 27, 2019 22:42:43 GMT -5
Can anyone explain what a MOTION by Defendants Cheryl Butler, Ricky Butler, GLV, Inc for leave to file Response and Cross-Motion for Sanctions in Excess of 15 Pages means?
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Post by mikegarrison on Jun 27, 2019 22:50:03 GMT -5
Can anyone explain what a MOTION by Defendants Cheryl Butler, Ricky Butler, GLV, Inc for leave to file Response and Cross-Motion for Sanctions in Excess of 15 Pages means? Short answer is: "This kind of stuff is why, if you are ever in a similar situation, you need to hire a lawyer instead of trying to just represent yourself".
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Post by Deleted on Jun 28, 2019 9:26:39 GMT -5
Full Docket #154:
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants. Case No. 1:18-cv-1465 Honorable Matthew F. Kennelly PLAINTIFF’S MOTION PURSUANT TO FED. R. CIV. P. 56(d) Plaintiff, Laura Mullen (“Plaintiff”), pursuant to Fed. R. Civ. P. 56(d), through her undersigned counsel, respectfully moves this Court for certain additional discovery that is required to respond to the motion for summary judgment filed by Defendants GLV, Inc., Rick Butler, and Cheryl Butler (together, “Defendants”). In support of this Motion, Plaintiff states as follows: 1. On May 28, 2019, Defendants filed their motion for summary judgment. (Dkt. 144.) 2. On June 6, 2019, the Court ordered Plaintiff to file a Federal Rule of Civil Procedure 56(d) statement containing certain discovery needed in order to respond to Defendants’ summary judgment motion. (Dkt. 152.) 3. Fed. R. Civ. P. 56(d) states that “f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, Case: 1:18-cv-01465 Document #: 154 Filed: 06/20/19 Page 1 of 5 PageID #:4172 2 the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). 4. To be clear, Plaintiff believes that Defendants’ motion for summary judgment should be denied outright for various procedural, factual, and legal deficiencies. Procedurally, Defendants’ motion for summary judgment, which introduces new and previously-undisclosed facts and legal theories into their defense, comes well in advance of the close of fact discovery and yet Defendants insist upon a stay of all discovery. (See dkt. 148.) Moreover, it improperly seeks summary judgment solely on Mullen’s individual claims, wholly ignoring the fact that a class has been certified in this matter. Factually, the summary judgment motion relies on Declarations of witnesses (see dkt. 144-15, 144-16, 144-21, and 144-22) who have neither fully answered Plaintiff’s discovery nor been deposed, in spite of Plaintiff’s efforts to complete written and oral discovery (see Declaration of Jay Edelson, Exhibit 1). Finally, even assuming these issues failed to raise a dismissal-prohibitive genuine dispute of material fact, Defendants’ legal theories aren’t sound: Defendants claim (1) that their facility is not open to the “public” so the Illinois Physical Fitness Services Act does not apply, even though members of the public participate in GLV-sponsored events; (2) that Plaintiff could not have been deceived because news articles and other publications discussed the allegations of sexual abuse against Rick Butler, even though each contained Rick Butler’s denials of each allegation; and (3) that Plaintiff received the benefit of the bargain by participating at Sports Performance, despite incurring costs and expenses as a result of Defendants’ fraud, deception and concealment for a program she never would have enrolled her daughters in had she known the truth. 5. Notwithstanding, Defendants’ motion also raises several arguments that require further factual development before Plaintiff can fully respond. Case: 1:18-cv-01465 Document #: 154 Filed: 06/20/19 Page 2 of 5 PageID #:4173 3 6. Plaintiff therefore seeks to complete additional written and oral discovery on a number of topics. The specific additional discovery required is set forth in the Declaration of Jay Edelson, attached hereto as Exhibit 1. 7. Accordingly, Plaintiff submits that the Court, if not inclined to deny Defendants’ summary judgment motion outright, should defer Defendants’ motion to allow time for Plaintiff to propound and complete the discovery described in the accompanying Rule 56(d) affidavit attached as Exhibit 1. WHEREFORE, Plaintiff Laura Mullen respectfully requests that this Court enter an Order: (1) denying Defendants’ motion for summary judgment outright; (2) deferring briefing and ruling on Defendants’ motion for summary judgment; (3) permitting Plaintiff to conduct written and oral discovery on the topics set forth in Jay Edelson’s accompanying Rule 56(d) affidavit, attached as Exhibit 1 to this motion; and (4) providing such other and further relief as the Court deems reasonable and just. Respectfully submitted, LAURA MULLEN, individually and on behalf of the class of similarly situated individuals, Dated: June 20, 2019 By: /s/ Sydney M. Janzen One of Plaintiff’s Attorneys Jay Edelson jedelson@edelson.com Eve-Lynn J. Rapp erapp@edelson.com Christopher L. Dore cdore@edelson.com Alfred K. Murray II amurray@edelson.com Sydney M. Janzen sjanzen@edelson.com Case: 1:18-cv-01465 Document #: 154 Filed: 06/20/19 Page 3 of 5 PageID #:4174 4 EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Case: 1:18-cv-01465 Document #: 154 Filed: 06/20/19 Page 4 of 5 PageID #:4175 5 CERTIFICATE OF SERVICE I, Sydney M. Janzen, an attorney, hereby certify that on June 20, 2019, I served the above and foregoing Plaintiff’s Motion Pursuant to Fed. R. Civ. P. 56(d), by causing a true and accurate copy of such paper to be filed and transmitted to all counsel of record via the Court’s CM/ECF electronic filing system. /s/ Sydney M. Janzen Case: 1:18-cv-01465 Document #: 154 Filed: 06/20/19 Page 5 of 5 PageID #:4176 Exhibit 1 Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 1 of 15 PageID #:4177 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants. Case No. 1:18-cv-1465 Honorable Matthew F. Kennelly DECLARATION OF JAY EDELSON IN SUPPORT OF PLAINTIFF’S MOTION PURSUANT TO FED. R. CIV. P. 56(d) I, Jay Edelson, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am an attorney admitted to practice in the State of Illinois, over the age of 18, and fully competent to make this Declaration. 2. I am the Founder and Chief Executive Officer at the law firm Edelson PC (the “Firm”). 3. I, along with other attorneys at my Firm, have been appointed Class Counsel in this action. (See dkt. 101.) 4. This Declaration is submitted pursuant to Federal Rule of Civil Procedure 56(d), which provides: (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 2 of 15 PageID #:4178 2 Background 5. This Court certified a class of “all individuals who paid money to the defendants for youth volleyball instruction through the Sports Performance program provided by or through GLV, Inc. in the State of Illinois between February 27, 2013 and January 10, 2018.” (Dkt. 101.) This class seeks to litigate violations of the Illinois Physical Fitness Services Act (815 ILCS 645/1, et seq.) (Counts I and II); violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1, et seq.) (Count III); fraud (Count IV); fraudulent concealment (Count V); and unjust enrichment (Count VI). Plaintiff propounded written discovery in order to discover facts relevant to each claim and noticed the deposition of Defendants’ Rule 30(b)(6) witness, Rick Butler, Cheryl Butler, Troy Gilb, and Erik Vogt. 6. On April 18, 2019, Defendants filed a Motion for Extension of Time to Respond to All Outstanding Discovery Requests, which identified several sets of Plaintiff’s discovery requests that remained outstanding, including interrogatories, requests for production of documents, and requests for admission of facts. (Dkt. 132 ¶¶ 2-7.) Defendants asked the Court for an extension until May 30, 2019 in order to answer the outstanding discovery, which the Court granted (see dkt. 135).1 7. Two days before Defendants’ responses to outstanding discovery were due, Defendants filed a “Motion for Summary Judgment on All Claims” (dkt. 144), and also filed a “Motion to Stay Discovery Pending Resolution of Defendants’ Motion for Summary Judgment on All Counts” (dkt. 148). 1 In the initial motion for an extension of time, Defendants requested additional time because “the documents which require review are almost all in hard-copy form and include lengthy transcripts from prior court files which require review.” (Dkt. 132, ¶ 10). The same comment was reiterated over a month later in Defendants’ Motion to Stay (dkt. 148, ¶ 9). Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 3 of 15 PageID #:4179 3 8. Defendants’ summary judgment motion relies on Declarations from six (6) individuals: Rick Butler (dkt. 144-15); Cheryl Butler (dkt. 144-16); Troy Gilb (dkt. 144-21); Erik Vogt (dkt. 144-22); Luke Stapleton (dkt. 144-23); and Claudine Dale (dkt. 144-24). 9. The Declarations attached in support of summary judgment raise factual and legal issues that Defendants have not previously answered through fact discovery. Yet, Defendants’ Motion to Stay requested that the Court order Plaintiff to respond to the Motion without obtaining any additional discovery. (See dkt. 148, ¶¶ 3, 8, 16-18.) 10. To date, Defendants’ complete written discovery responses remain outstanding. None of the witnesses whose depositions have been noticed by Plaintiff have been deposed. 11. Defendants’ Motion (dkt. 144, and supporting Memorandum in Support of the Motion (dkt. 153)) should be denied outright for various procedural, factual, and legal deficiencies. 12. In the alternative, Plaintiff provides the Court with this Declaration to demonstrate that she cannot present all facts essential to support its opposition to the Motion unless it is allowed an opportunity to discover facts asserted within Defendants’ arguments. 13. In the event the Court limits the scope of discovery to facts needed for Plaintiff’s response to the motion for summary judgment, and the Court subsequently denies Defendants’ motion, Plaintiff is entitled to finish discovery on the remaining issues needed to adequately prepare her case for trial, including re-deposing Defendants and the witnesses on all claims contained in the Complaint. 14. Specifically, the topics and specific items of information detailed below are discoverable and essential to Plaintiff’s opposition of the issues presented in Defendants’ Motion. Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 4 of 15 PageID #:4180 4 Written Discovery 15. Further written discovery directed to all Defendants is needed to fully respond to the arguments and new evidence Defendants present in their bid for early summary judgment. Plaintiff seeks to propound limited written discovery requests upon all Defendants about the following topics and items of information: A. Illinois Physical Fitness Services Act (“IPFSA”) contract claims. Defendants argue they are not subject to IPFSA because they do not provide physical fitness services “to the public.” Despite asserting 26 affirmative defenses, dkt. 79, Defendants have not previously raised this defense to liability and Plaintiff has not propounded discovery on this new theory. Plaintiff therefore needs discoverable information, documents, and communications concerning the following items related to Defendants’ business operations and volleyball services offered to the public: i. Defendants’ process to determine eligibility for tryouts, invitations for tryouts, player selection in the program after tryouts, further evaluation of players, and selection for individual teams. ii. Defendants’ profits from the contracts with Plaintiff and the Class during the Class Period. This request concerns the same subject matter as certain unanswered discovery requests already propounded to Defendants on March 29, 2019 (Interrogatory No. 20 to GLV; Interrogatory No. 17 to Rick Butler; Interrogatory No. 9 to Cheryl Butler; Request for Production No. 13 directed to all Defendants). Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 5 of 15 PageID #:4181 5 iii. Defendants’ use of their facilities for all camps, tournaments, academies, leagues, clinics, lessons, programs, workshops, non- Sports Performance players and teams, including any criteria used to determine who is allowed to participate in any of these activities, and any agreements and insurance provisions relating to such use. iv. GLV, Inc.’s annual reports filed with the Illinois Secretary of State during the Class Period stating the purpose of the company and source(s) of revenue. v. Representations made to governmental authorities concerning GLV’s volleyball facility in conjunction with an application for building zoning variances, tax exemptions, or related items. B. Claims based on Defendants’ deception and/or omission. Defendants argue Plaintiff was not deceived because certain information about the allegations of Rick Butler’s history or sexual abuse of young girls was available in the public record or from Defendants directly. To be clear, this lawsuit does not claim that Defendants concealed or omitted allegations about Rick Butler, but rather the truth of those allegations.2 Nonetheless, in order to respond to Defendants’ arguments Plaintiff needs discoverable 2 Plaintiff reads Defendants’ summary judgment motion as not putting the truth of the underlying allegations of sexual abuse at issue, as the answer is disputed between the Parties and will be the focus of trial. If Defendants’ are contesting the veracity of the claims of sexual abuse in their motion for summary judgment, Plaintiff is entitled to discovery into the claimed instances of sexual assault and rape, much of which are included in the currently outstanding discovery. In the event Defendants’ motion for summary judgment is denied, Plaintiff is entitled to discovery showing the underlying sexual abuse allegations are true. (See dkt. 101 p. 5.) Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 6 of 15 PageID #:4182 6 information, documents, and communications concerning the following items related to Defendants’ deception: i. All instances where Defendants publicly discussed the allegations. ii. Defendants’ responses and denials to the allegations that Rick Butler sexually abused players in the 1980’s from parents, players, media, or other entities. This request concerns the same subject matter as certain incompletely answered discovery requests already propounded to Defendants on May 7, 2018 (Interrogatory No. 4 to GLV; Interrogatory Nos. 5 and 12 to Rick Butler; Interrogatory Nos. 2, 4, and 5 to Cheryl Butler) and May 10, 2018 (Request for Production No. 1 directed to all Defendants). iii. All instances where Defendants provided, included, or attached documents concerning Rick Butler’s sexual history with players to Defendants’ informational and marketing materials, such as the USAV investigation, AAU investigation, and DCFS findings, and all instances where Defendants made such documents publicly available on its website or other published material. iv. Any acts of sexual abuse or sexual contact with Defendants’ players not identified in the complaint or current answers to discovery. This request concerns the same subject matter as certain incompletely answered discovery requests already propounded to Defendants on May 7, 2018 (Interrogatory No. 1 to GLV; Interrogatory No. 1 to Rick Butler; Interrogatory No. 1 to Cheryl Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 7 of 15 PageID #:4183 7 Butler). C. Defendants’ unfair business practices. Defendants argue they did not engage in unfair business practices and Plaintiff had alternative choices for volleyball services. Plaintiff needs discoverable information, documents, and communications concerning the following items related to Defendants’ unfair business practices: i. Defendants’ statements to Plaintiff and Class Members regarding the allegations against Rick Butler, to the extent Defendants’ responses to outstanding discovery requests need to be supplemented. This request concerns the same subject matter as certain answered discovery requests already propounded to Defendants on April 17, 2018 (Interrogatory Nos. 1 to GLV), May 7, 2018 (Interrogatory No. 4 to GLV; Interrogatory Nos. 5 and 12 to Rick Butler; Interrogatory Nos. 2, 4, and 5 to Cheryl Butler) and May 10, 2018 (Request for Production No. 1 directed to all Defendants). ii. Defendants’ knowledge and information concerning competitor volleyball clubs, including: a. Defendants’ statements concerning the quality, type, and benefit of the services provided by competitors; and b. Rates charged by competitors for similar services. iii. Defendants’ valuation of volleyball services if information about the allegations were included in marketing and informational Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 8 of 15 PageID #:4184 8 materials provided to consumers. iv. Defendants’ claims during the Class Period that players have opportunities for college scholarships and other unique volleyball teams such as the Olympics. v. The frequency and manner in which Defendants raise the possibility of college scholarships with players and parents. D. Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) claims. In addition to the above-referenced arguments concerning deception and unfair business practices, Defendants argue they did not violate the ICFA because no duty to disclose existed, Defendants had no knowledge of the falsity of the statement, and did not intend to conceal information. The discoverable information, documents and communications that Plaintiff requires to respond to these arguments is encompassed in the topics discussed supra. E. Damages. Defendants argue that Plaintiff has not sustained an injury-infact and has not suffered any recoverable damages. Plaintiff needs discoverable information, documents and communications concerning the following items related to Defendants’ knowledge of Plaintiff’s injuries and damages: i. All costs incurred by a Class Member for participating in Defendants’ volleyball program during the Class Period, including expenses for participating on teams and travelling to tournaments. ii. Any changes in pricing at Defendants’ facility, any valuations of Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 9 of 15 PageID #:4185 9 GLV, Inc. performed, any decline in membership at GLV, any decline in scholarships to Class Members, any decline in volleyball tournament participation by competitor clubs, or statements made to Defendants by colleges or professional volleyball associates about the allegations of sexual abuse. iii. Defendants’ knowledge that the reputation of Sports Performance has been diminished as a result of the allegations of sexual abuse against Rick Butler. Oral Discovery 16. Oral Discovery directed to all Defendants. Plaintiff needs to depose the witnesses listed below. If the depositions are limited in scope to the subjects identified above in written discovery requests and the specific subjects identified below for each witness, Plaintiff is entitled to re-depose these witnesses to collect evidence needed to prepare for trial and requests that the Court preserve this right in its Order granting discovery pursuant to Rule 56(d): A. Deposition of Defendants’ Rule 30(b)(6) witness: i. GLV’s process to determine eligibility for tryouts, invitations for tryouts, player selection in the program after tryouts, further evaluation of players, and selection for individual teams. ii. Defendants’ use of the facility for all camps, tournaments, academies, leagues, clinics, lessons, programs, workshops, and teams including any criteria used to determine who is allowed to participate in any of these activities, any agreements and insurance provisions relating to such use. Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 10 of 15 PageID #:4186 10 iii. Drafting, editing, revising, and updating “Sports Performance Player/Parent Contract.” iv. All facts concerning the costs incurred by a Class Member for participating in Defendants’ volleyball program during the Class Period, including expenses for participating on teams and travelling to tournaments. v. All facts related to changes in pricing at Defendants’ facility, any valuations of GLV, Inc. performed, any decline in membership at GLV, any decline in scholarships to Class Members, or statements made to Defendants by colleges and/or professional volleyball associates about the allegations of sexual abuse. B. Deposition of Rick Butler: i. Role, position, and length of employment in said role/position with GLV, Inc. (Declaration ¶ 2.) ii. Role during try outs, invitations extended for players to play for Defendant, and selection of players on individual teams. (Dec. ¶¶ 3, 4, 8.) iii. Meetings with players/parents pursuant to “open-door policy regarding the allegations.” (Dec. ¶ 11.) iv. Meetings with parents and players to discuss the allegations, the USAV investigation and ban, the DCFS investigation, and related issues. (Dec. ¶ 12.) v. “everal meetings with smaller groups of parents or individual Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 11 of 15 PageID #:4187 11 families regarding the allegations”. (Dec. ¶ 13.) vi. Player or parent questions asked of Rick Butler as a result of the above-referenced meetings, and Rick Butler’s response to those questions. vii. Drafting, editing and revising the e-mail sent by Claudine Dale on January 12, 2018. (Dec. ¶ 14.) viii. Drafting, editing and revising the e-mail sent by Luke Stapleton on March 1, 2018. (Dec. ¶ 15.) ix. Player or parent questions asked of Rick Butler as a result of the above-referenced e-mails, and Rick Butler’s responses to those questions. C. Deposition of Cheryl Butler: i. Role, position, and length of employment in said role/position with GLV, Inc. (Declaration ¶ 2.) ii. Role during try outs, invitations extended for players to play for Defendant, and selection of players on individual teams. (Dec. ¶¶ 3, 4, 8.) iii. Meetings with players/parents pursuant to “open-door policy regarding the allegations.” (Dec. ¶ 11.) iv. Meetings with parents and players to discuss the allegations, the USAV investigation and ban, the DCFS investigation, and related issues. (Dec. ¶ 12.) v. “everal meetings with smaller groups of parents or individual Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 12 of 15 PageID #:4188 12 families regarding the allegations”. (Dec. ¶ 13.) vi. Player or parent questions asked of Cheryl Butler as a result of the above-referenced meetings, and Cheryl Butler’s response to those questions. vii. Drafting, editing and revising the e-mail sent by Kelly Stapleton on July 12, 2017. (Dec. ¶ 14.) viii. Drafting, editing and revising the e-mail sent by Claudine Dale on January 12, 2018. (Dec. ¶ 15.) ix. Player or parent questions asked of Cheryl Butler as a result of the above-referenced e-mails, and Cheryl Butler’s response to those questions. D. Deposition of Troy Gilb: i. Role, position, and length of employment in said role/position with GLV, Inc. (Declaration ¶ 2.) ii. All facts related to e-mail exchanges with Plaintiff referenced in Defendants’ Motion. (Dec. ¶ 3.) E. Deposition of Erik Vogt: i. Role, position, and length of employment in said role/position with GLV, Inc. (Declaration ¶ 2.) ii. All facts related to e-mail exchanges with Plaintiff referenced in Defendants’ Motion. (Dec. ¶ 3.) F. Deposition of Luke Stapleton: i. Role, position, and length of employment in said role/position with Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 13 of 15 PageID #:4189 13 GLV, Inc. (Declaration ¶ 2.) ii. Player or parent questions asked of Luke Stapleton as a result of the above-referenced e-mail sent on March 1, 2018. (Rick Butler Dec. ¶ 15.) iii. All facts related to e-mail exchanges with Plaintiff referenced in Defendants’ Motion. (Dec. ¶ 3.) 17. The foregoing evidence is discoverable pursuant to Federal Rule of Civil Procedure 26(b)(1) because it is “relevant” to Plaintiff’s claims that Defendants have never publicly admitted the allegations were true and that she and the Class suffered an injury, sustained actual damages, were deceived by Defendants’ action and inaction, suffered unfair and oppressive conduct by Defendants and are otherwise entitled to the relief sought. 18. The foregoing evidence is also essential to demonstrate the existence of disputes of material facts that are central to the disposition of this case. 19. Plaintiff is presently unable to present this evidence to the Court for consideration of Defendants’ Motion because any such evidence is solely and exclusively within the possession and/or control of Defendants or their agents. 20. Accordingly, this Court should grant Plaintiff relief under Federal Rule of Civil Procedure 56(d). Defendants’ motion for summary judgment should be deferred to allow time for Plaintiff to propound limited discovery regarding the foregoing evidence, allow Defendants time to answer the discovery requests and sit for depositions, allow Plaintiff to conduct expert discovery, and then hold a status hearing where the Court can set a briefing schedule on Defendants’ summary judgment motion. * * * Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 14 of 15 PageID #:4190 14 I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th day of June, 2019 at Chicago, Illinois. /s/ Jay Edelson Jay Edelson Case: 1:18-cv-01465 Document #: 154-1 Filed: 06/20/19 Page 15 of 15 PageID #:4191
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Post by Deleted on Jul 2, 2019 10:28:22 GMT -5
LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. Case No. 18-cv-1465 GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB Honorable Matthew F. Kennelly and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants. DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION PURSUANT TO FED. R. CIV. P. 56(d) Defendants, GLV, Inc. d/b/a Sports Performance Volleyball Club and Great Lakes Center (“GLV”), Rick Butler (“Rick”), and Cheryl Butler (“Cheryl”) respectfully submit this Response in Opposition to Plaintiff’s Motion Pursuant to Fed. R. Civ. P. 56(d). In support of this Motion, Defendants state as follows: 1. On June 20, 2019, Plaintiff filed a Motion Pursuant to Fed. R. Civ. P. 56(d) arguing, without sufficient factual support, that Defendants’ Motion for Summary Judgment should be denied outright because it introduces “new” facts (facts which are, notably, within the knowledge of Plaintiff Laura Mullen) related to Mullen’s individual claims. This argument is without legal merit and factual support, and Plaintiff’s request should be denied. 2. Plaintiff argues that if the Court does not deny the Motion for Summary Judgment outright, then the Court should defer Defendants’ motion to allow time for Plaintiff to propound and complete the discovery described in the accompanying Rule 56(d) affidavit.
2 3. Rule 56(d) states, “When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). 4. Rather, Plaintiff submitted a fifteen-page Declaration of Jay Edelson in support of her Motion Pursuant to Fed. R. Civ. P. 56(d), requesting various discovery which is unrelated to Defendants’ Motion for Summary Judgment and which is largely within Plaintiff’s own knowledge and experience. 5. Defendants’ Motion for Summary Judgment rests on two primary arguments: (1) Laura Mullen and the Class did not suffer a legally sufficient injury, and (2) Laura Mullen was not deceived. Plaintiff conspicuously fails to provide any argument or connection between the discovery she seeks and the arguments set forth in Defendants’ Motion for Summary Judgment. 6. A party invoking the protections of Rule 56(d) “must state the reasons why the party cannot adequately respond to the summary judgment motion without further discovery and must support those reasons by affidavit.” Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006). Plaintiff fails to provide the reasons why she cannot respond to the summary judgment motion, which focuses on her personal claims. Plaintiff instead attempts to differentiate her claims with those of the class in order to justify irrelevant discovery requests which would only serve to unnecessarily prolong the Court’s determination of Defendants’ Motion for Summary Judgment. 7. Plaintiff’s Motion and the attached Declaration from Jay Edelson fail to explain how Plaintiff is unable to present facts to oppose Defendants’ summary judgment motion which is based on matters within Laura Mullen’s personal knowledge. In support of her Motion, Plaintiff
3 is required to submit an affidavit which demonstrates “how postponement of a ruling on the motion will enable [it], by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.” Korf v. Ball State University, 726 F.2d 1222, 1230 (7th Cir. 1984) (quoting Lamb’s Patio Theatre v. Univ. Film Exchanges, 582 F.2d 1068, 1071 (7th Cir. 1978)). 8. The Seventh Circuit “has noted that the party seeking further time to respond to a summary judgment motion must give an adequate explanation to the court of the reasons why the extension is necessary.” Farmer v. Brennan, 81 F.3d 1444, 1449 (7th Cir.1996). Because Plaintiff has failed to provide an adequate explanation to justify her requests for additional discovery, which are irrelevant to the arguments set forth in Defendants’ Motion for Summary Judgment, her requests should be denied. Written Discovery Related to Plaintiff’s Injury and Actual Damages 9. In Defendants’ Motion for Summary Judgment, Defendants argue that Plaintiff has not alleged a sufficient injury to give rise to her request for relief. Mullen claims that she was injured because she “subjected her daughters to their potentially dangerous volleyball programs and paid substantial money in the process” (Dkt. 57, p. 25), however, Defendants argue that simply suing to receive her money back does not create an injury in fact where none exists. (Dkt. 144, p. 3) (citing Koronthaly v. L’Oreal USA, Inc., 374 Fed.Appx. 257, 258 (3d Cir. 2010)). 10. Plaintiff’s Rule 56(d) Motion seeks discovery which is irrelevant to the argument made by the Defendants in the Motion for Summary Judgment, such as: (i) All costs incurred by a Class Member for participating in Defendants’ volleyball program during the Class Period. Mullen is required to prove her injury and damages, and the costs incurred by a Class Member is not relevant to whether Mullen has suffered a legally sufficient injury to bring her claims; (ii) Any changes in pricing at Defendants’ facility, any valuations of GLV, Inc. performed, any decline in membership at GLV, any decline in scholarships to Class Members, any decline in volleyball tournament participation by competitor clubs, or
4 statements made to Defendants by colleges or professional volleyball associates about the allegations of sexual abuse. None of this information is relevant to whether Laura Mullen has suffered a legally sufficient injury. (iii) Defendants’ knowledge that the reputation of Sports Performance has been diminished as a result of the allegations of sexual abuse against Rick Butler. This information is not relevant to whether Laura Mullen has suffered a legally sufficient injury. 11. Plaintiff has not alleged that she received less than the value for which she bargained. (Dkt. 144, Exhibit B, No. 4) Rather, Mullen simply claims that she would not have paid the fees had she been informed of certain information. Id. Defendants argue that Mullen has not suffered a legally sufficient injury, because she received the benefit of the bargain. 12. In support of their Motion for Summary Judgment, Defendants provided the Court with numerous emails which they contend support their argument that Mullen received the benefit of the bargain. (Dkt. 144, Group Exhibit K) The discovery requested by the Plaintiff is not relevant to the arguments made by the Defendants in their Motion for Summary Judgment and therefore should be denied. Written Discovery Related to Claims Based on Defendants’ Alleged Deception or Omission 13. Plaintiff filed this lawsuit alleging that she was deceived by the Defendants. Plaintiff is required to prove that deceptive statements were made to her and the circumstances under which those statements were made. See Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 155 (Ill. 2002). Defendants argue that Mullen was aware of the information she claims was concealed from her when she brought her daughters to Sports Performance. (Dkt. 144, p. 12) No additional discovery is necessary will inform Laura Mullen of alleged misstatements upon which she brings her claims. 14. Defendants argue in their Motion for Summary Judgment that Laura Mullen posted on certain online message boards discussing details of the allegations in 2015, yet she returned to
5 Sports Performance for an additional two years after learning substantial details of the claims in her Complaint. Id. 15. Plaintiff’s Rule 56(d) Motion seeks discovery which is irrelevant to the argument made by the Defendants in the Motion for Summary Judgment, such as: (i) All instances where Defendants publicly discussed the allegations, which is irrelevant to whether Laura Mullen was aware of the information she claims Defendants fraudulently concealed from her and the Class; (ii) Defendants’ responses and denials to the allegations that Rick Butler sexually abused players in the 1980’s from parents, players, media, or other entities, which is within the knowledge of Laura Mullen to the extent those denials relate to her claims; (iii) All instances where Defendants provided, included, or attached documents concerning Rick Butler’s sexual history with players to Defendants’ informational and marketing materials, which was already answered in discovery; (iv) Any acts of sexual abuse or sexual contact with Defendants’ players not identified in the complaint or current answers to discovery, which was also previously answered in discovery. 16. For the reasons enumerated above, Plaintiff’s request for additional discovery related to Defendants’ alleged deception or omission should be denied. Written Discovery Related to Defendants’ Alleged Unfair Business Practices 17. Plaintiff has alleged that GLV’s conduct violates public policy, that it is so oppressive as to leave her with little alternative except to submit to it, and that its conduct caused her to suffer an injury. (Dkt. 1, ¶ 221) Defendants argue in their Motion for Summary Judgment (p. 3) that Plaintiff’s evidence of this claim “is woefully insufficient because Mullen’s daughters played volleyball at Sports Performance Volleyball Club, Fusion Volleyball Club, and Sky High Volleyball Club (Def. SOF ¶ 25-26, Exhibit C, No. 14), undermining any notion that she was left with little alternative to participation in the Sports Performance program.” (Dkt. 144, p. 3) (citing Galvan v. Northwestern Memorial Hosp., 382 Ill.App.3d 259, 265 (1st Dist. 2008)).
6 18. Plaintiff’s Rule 56(d) Motion seeks discovery which is irrelevant to the argument made by the Defendants in the Motion for Summary Judgment, such as: (i) Defendants’ statements to Plaintiff and Class Members regarding the allegations against Rick Butler, which is within Plaintiff’s own knowledge; (ii) Defendants’ statements concerning the quality, type, and benefit of the services provided by competitors, which, if any such statements were made, would be within Plaintiff’s own knowledge and are irrelevant to whether Laura Mullen had alternatives available to her; (iii) Rates charged by competitors for similar services, which is not information known to Defendants and, instead, lies within Plaintiff’s own knowledge, since she actually paid those competitors for their volleyball services; (iv) Defendants’ valuation of volleyball services if information about the allegations were included in marketing and informational materials provided to consumers, which is both speculative and irrelevant to the arguments in the Motion for Summary Judgment; (v) Defendants’ claims during the Class Period that players have opportunities for college scholarships and other unique volleyball teams such as the Olympics, which is within Plaintiff’s knowledge and is not relevant to the arguments in Defendants’ Motion for Summary Judgment; and (vi) The frequency and manner in which Defendants raise the possibility of college scholarships with players and parents, which, again, is within Plaintiff’s knowledge and is not relevant to the arguments in Defendants’ Motion for Summary Judgment. (Dkt. 154, Exhibit 1, p. 8) 19. None of the information sought by the Plaintiff is relevant to whether Laura Mullen had other options available to her and whether she utilized those options, therefore her request for additional discovery should be denied. Written Discovery Related to the Illinois Physical Fitness Services Act 20. Plaintiff seeks written discovery as well as depositions to “determine eligibility for tryouts, invitations for tryouts, player selection in the program after tryouts, further evaluation of players, and selection for individual teams.” (Dkt. 154, Exhibit 1, p. 4)
7 21. This information is relevant to the Defendants’ argument that the Sports Performance program requires a try-out to be accepted into the program. However, Laura Mullen’s children attended these try-outs for each year they participated in the program. Mullen is well aware of GLV’s “process to determine eligibility for tryouts,” which is simple: athletes under 18 years of age who seek to play volleyball at an elite level are eligible to attend a try-out. 22. Plaintiff’s request for additional discovery regarding the Defendants’ try-out process is simply an attempt to delay this Court from ruling on the Motion for Summary Judgment. Plaintiff requests additional discovery which is unrelated to the arguments made by Defendants in their Motion for Summary Judgment, such as: (i) Player selection in the program after tryouts, further evaluation of players, and selection for individual teams, which is irrelevant to the arguments in Defendants’ Motion for Summary Judgment and to the extent that it may be relevant, is within the knowledge of the Plaintiff; (ii) Defendants’ profits from the contracts with Plaintiff and the Class during the Class Period; (iii) Defendants’ use of their facilities for all camps, tournaments, academies, leagues, clinics, lessons, programs, workshops, non-Sports Performance players and teams; (iv) GLV, Inc.’s annual reports filed with the Illinois Secretary of State; (v) Representations made to governmental authorities concerning GLV’s volleyball facility in conjunction with an application for building zoning variances, tax exemptions, or related items. (Dkt. 154, Exhibit 1, p. 5) 23. Plaintiff has failed to connect the above requested discovery to the arguments set forth in Defendants’ Motion for Summary Judgment. In fact, the above discovery is unrelated to the arguments in Defendants’ Motion for Summary Judgment, and Mullen’s request is merely an attempt to prolong the discovery process.
8 Declarations Submitted in Support of Defendants’ Motion for Summary Judgment 24. “A party seeking Rule 56(d)’s protection must make a good faith showing that it cannot respond to the movant’s affidavits. Kalis v. Colgate–Palmolive Co., 231 F.3d 1049, 1058 n. 5 (7th Cir. 2000). This requires an affidavit from the nonmovant identifying the material facts that it anticipates discovering. See Grundstat v. Ritt, 166 F.3d 867, 873 (7th Cir. 1999) (finding vague assertions that discovery would develop genuine issues of material fact insufficient to grant continuance). 25. Plaintiff claims that “Defendants’ summary judgment motion relies on Declarations from six (6) individuals: Rick Butler (dkt. 144-15); Cheryl Butler (dkt. 144-16); Troy Gilb (dkt. 144-21); Erik Vogt (dkt. 144-22); Luke Stapleton (dkt. 144-23); and Claudine Dale (dkt. 144-24).” (Dkt. 154, Exhibit 1, p. 3) However, four of those Declarations consist of three paragraphs and were submitted to authenticate the emails attached as exhibits to Defendants’ Motion for Summary Judgment. 26. The Declarations of Rick and Cheryl Butler reference certain meetings which have taken place regarding the allegations, which were referenced in certain emails sent to class members. (Dkt. 144, Exhibit N, Exhibit O) Plaintiff seeks depositions and written discovery regarding the meetings. However, what took place at those meetings is not relevant to the argument made by Defendants in their Motion for Summary Judgment that Rick and Cheryl publicly acknowledged the allegations, so they cannot have also been concealing them. (Dkt. 144, p. 23) 27. Specifically, the Motion for Summary Judgment states, “Rick and Cheryl Butler have held meetings and sent several emails to the Sports Performance parents throughout the class period, where they discussed the allegations and related events. It would be impossible for
9 Defendants, at that same time, to conceal information which they were publicly acknowledging to those whom Plaintiff claims were unaware.” Id. 28. Plaintiff does not appear to contest that the emails were, in fact, sent to class members, and Plaintiff has not established how further discovery on the meetings is necessary to respond to Defendants’ contention that they did not intend to conceal information which they acknowledged to members of the class. 29. The remaining information Plaintiff seeks in the form of written discovery and depositions is the role of Rick and Cheryl Butler in the Sports Performance program and try-out process, which is not information necessary to formulate a defense to Defendants’ Motion for Summary Judgment. 30. For the same reasons discussed above, Plaintiff’s unnecessary request to conduct depositions of the GLV employees who provided Declarations authenticating their emails should be denied. 31. “The decision to cut off discovery is committed to the management skills of the district court.” Stevo v. Frasor, 662 F.3d 880, 886 (7th Cir. 2011). 32. Plaintiff’s Motion Pursuant to Rule 56(d) is insufficient, as it fails to establish why the Plaintiff requires such extensive discovery, particularly after 14 months of discovery has already been completed in this matter and Defendants’ Motion for Summary Judgment is based upon facts squarely within Laura Mullen’s knowledge. 33. However, in the event that this Court does deem any of Plaintiff’s discovery requests to be necessary and reasonable, Defendants request that the discovery be limited to written discovery.
10 WHEREFORE, Defendants respectfully request that this Court enter an Order denying Plaintiff’s Motion Pursuant to Rule 56(d) in full and providing such other and further relief as the Court deems reasonable and just. Date: July 1, 2019 Respectfully Submitted, GLV, INC., RICK BUTLER, and CHERYL BUTLER By: /s/ Danielle D’Ambrose
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Post by azvb on Jul 2, 2019 10:59:47 GMT -5
memyself&I, thank you again for the updates. BUT, a summary would be so helpful. In English. Using small words those of us who majored in P.E. can understand. Please, and thank you.
And why can’t I highlight your screen name?
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Post by wilkat on Jul 2, 2019 11:03:44 GMT -5
Seriously this is way too much information. You must be the Plaintiff or someone involved to post this much on a volleyball blog. Wow!
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Post by azvb on Jul 2, 2019 12:08:50 GMT -5
memyself&I, thank you again for the updates. BUT, a summary would be so helpful. In English. Using small words those of us who majored in P.E. can understand. Please, and thank you. And why can’t I highlight your screen name? Username: four @four Huh. So I should search user names, not screen names?
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Post by trainermch on Jul 2, 2019 23:54:11 GMT -5
Huh. So I should search user names, not screen names? Hover your cursor over the name and username appears.
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