‘Antilawyering’ means court defeat for would-be Indy developer, 7th Circuit affirms

by Olivia Covington

Failure to follow local court rules led to defeat for a would-be developer suing the city of Indianapolis, an outcome upheld Wednesday by the 7th Circuit Court of Appeals.

In Leif Hinterberger, et al. v. City of Indianapolis, 19-3365, Leif Hinterberger in 2005 began working on a mixed-use development south of Broad Ripple known as Uptown in the area of 49th Street and College Avenue. He claimed he was led to believe the city would help finance the redevelopment project, but he failed to meet funding preconditions.

Even so, as late as 2011, Indianapolis promised $1 million in grant support for the Uptown project. It also created a Midtown tax increment financing, or TIF, redevelopment district encompassing Hinterberg’s site, but the funds were not available until 2015.

In the meantime, Hinterberger went bankrupt and his property was sold at a sheriff’s sale in 2012. The city ultimately worked with other firms to redevelop the neighborhood.

Following state court proceedings, Hinterberger in 2016 sued the city in the U.S. District Court for the Southern District of Indiana, raising constitutional claims and state-law claims against additional defendants. The city moved for summary judgment, which Senior Judge Sarah Evans Barker granted.

“How the district court came to that decision is front and center in this appeal,” Judge Michael Scudder wrote Wednesday. “And the proper starting point comes with a few words of background on summary judgment practice in federal court.

“… Though the specifics may vary, many districts require the parties to submit factual statements to assist with identifying and isolating the disputed from the undisputed — all to help the court assess whether a particular claim should proceed to trial or instead can be resolved on the existing record,” Scudder wrote. “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 supports a party’s position on each of these questions.’”

In the Indiana Southern District, Scudder noted, this process is governed by Local Rule 56-1. The district court determined Hinterberger did not follow that rule, and the 7th Circuit agreed.

“The (district) court found that the statement failed to respond to the City’s account of the material facts and instead presented a version of events replete with impermissible argument and unsupported by citations to record evidence,” Scudder wrote. “… 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,” Scudder wrote, pointing to “improper and unsupported argument,” misleading citations and misstatements of record evidence. “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.”

Thus, because the district court accepted the city’s facts, “all claims resolve in its favor at summary judgment,” the judge wrote. Hinterberger’s state-law claims — specifically, breach of a nondisclosure agreement — also failed.

“…(A)s it observed in its own Rule 56-1 statement of undisputed facts, the City was not a party to the agreement,” Scudder wrote. “We do not consider any facts Hinterberger attempts to offer on appeal about the City agreeing to the terms through its agent … .”