                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-1327

L EON M ODROWSKI,
                                                  Plaintiff-Appellant,
                                  v.

JOHN P IGATTO , F RANK P IGATTO ,
TAQ P ROPERTIES, LLC, and
C APPS M ANAGEMENT,

                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 09 C 7002—Ronald A. Guzmán, Judge.



     A RGUED N OVEMBER 28, 2012—D ECIDED A PRIL 8, 2013




  Before K ANNE, W OOD , and SYKES, Circuit Judges.
  W OOD , Circuit Judge. A party that does not bear the
burden of persuasion may move for summary judg-
ment “by ‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support
the nonmoving party’s case.” Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). If, after an adequate oppor-
2                                              No. 11-1327

tunity for discovery, “the non-movant does not come
forward with evidence that would reasonably permit
the finder of fact to find in her favor on a material ques-
tion, then the court must enter summary judgment
against her.” Waldridge v. American Hoechst Corp., 24 F.3d
918, 920 (7th Cir. 1994) (emphasis in original) (citations
omitted). This is not an onerous burden, yet “[d]espite
the rudimentary nature of their task, parties served
with summary judgment motions often misconceive
what is required of them.” Id. at 921. As this case
aptly demonstrates, such misunderstandings can
have harsh consequences for litigants.


                             I
  Leon Modrowski’s tenure as a property manager
for TAQ Properties and Capps Management came to a
contentious end in 2008. Allegedly in retaliation
for Modrowski’s unwillingness to skimp on important
building repairs, the defendants (TAQ, Capps, and
John and Frank Pigatto) fired Modrowski, withheld
$11,000 in wages, had Modrowski jailed, and locked
Modrowski out of his personal Yahoo email account. This
final affront—apparently enabled by Modrowski’s ill-
advised decision to merge his personal email account
with that of his employers—is the focus of this dispute.
   In November 2009, Modrowski sued in federal court,
challenging the defendants’ refusal to relinquish control
over his personal email account. The district court
issued a temporary restraining order, but apparently
it acted too late. Upon regaining access to his account,
No. 11-1327                                               3

Modrowski discovered that several years’ worth of his
personal correspondence had vanished. Modrowski
alleges that the defendants’ conduct violated the
Stored Wire and Electronic Communications Act (18
U.S.C. § 2701), the Federal Wire Tapping Act (18 U.S.C.
§ 2511), and the Computer Fraud and Abuse Act (18
U.S.C. § 1030). His complaint also asserts a handful
of state-law claims.
  The defendants initially moved to dismiss all of
Modrowski’s claims pursuant to Federal Rule of Civil
Procedure 12(b)(6). The district court granted the
motion in part, dismissing the first two federal claims
with prejudice since Modrowski acknowledged that he
voluntarily linked his personal account with the defen-
dants’ business account. This concession was fatal to
both claims, the court concluded, and Modrowski does
not challenge this decision on appeal. The district court
dismissed Modrowski’s Computer Fraud and Abuse
Act claim on a different ground: the complaint failed
to allege an injury of at least $5,000, as required for
any civil action under the statute. See 18 U.S.C.
§ 1030(c)(4)(A)(i)(I); (g). The district court dismissed
this claim without prejudice, affording Modrowski the
opportunity to elaborate on the economic harm caused
by the defendants’ actions.
  When Modrowski returned in July 2010 with his first
amended complaint, the defendants moved for sum-
mary judgment. The window for fact discovery had
closed a month earlier, and neither party had asked the
court for an extension. The record at that point, defendants
4                                             No. 11-1327

urged, had “a complete lack of proof concerning all of
the essential element[s] of the counts contained in Plain-
tiff’s First Amended Complaint.” Since Modrowski
would be unable to prove his claims at trial, the de-
fendants argued, summary judgment in their favor was
required.
  Rather than coming forward with evidence to support
the allegations in his complaint or asking the court
for more time, Modrowski responded by attacking per-
ceived deficiencies of the defendants’ motion. Specif-
ically, Modrowski pointed out that the defendants’
motion “d[id] not contain a Local Rule 56.1 Statement,
cite to any admissible evidence, or cite to any sup-
porting authority for the substantive law of the case.”
As Modrowski saw it, he bore no obligation to respond
to such a defective summary judgment motion because
the defendants “had not met their initial burden as
movants.” Modrowski chose instead to construe the
defendants’ motion as a second Rule 12(b)(6) motion
to dismiss. Over the course of nine pages, he explained
how his factual allegations satisfied every element of
each of his six claims.
  The district court was not swayed by Modrowski’s
argument. Noting Modrowski’s failure to offer “any
evidence in response to defendants’ motion, let alone
evidence sufficient to raise a triable issue of fact,” it
granted summary judgment to the defendants on
Modrowski’s Computer Fraud and Abuse Act claim.
The court then relinquished jurisdiction over the state
law claims and terminated the case.
No. 11-1327                                               5

                             II
  On appeal, Modrowski renews the same argument he
made to the district court, insisting that his obligation
to point to evidence in his favor was never triggered,
because the defendants failed to meet their initial
burden of production.
  Federal Rule of Civil Procedure 56 imposes an initial
burden of production on the party moving for summary
judgment to inform the district court why a trial is not
necessary. Celotex, 477 U.S. at 323. Where the nonmovant
bears the ultimate burden of persuasion on a particular
issue, however, the requirements that Rule 56 imposes
on the moving party are not onerous. It does not
require the moving party to “support its motion with
affidavits or other similar materials negating the
opponent’s claim.” Id. (emphasis in original). Rather,
the movant’s initial burden “may be discharged by
‘showing’—that is, point out to the district court—that
there is an absence of evidence to support the non-
moving party’s case.” Id. at 325. Upon such a showing,
the nonmovant must then “make a showing sufficient
to establish the existence of an element essential to that
party’s case.” Id. at 322. The nonmovant need not depose
her own witnesses or produce evidence in a form
that would be admissible at trial, but she must “go
beyond the pleadings” (e.g., produce affidavits, deposi-
tions, answers to interrogatories, or admissions on file),
id. at 324, to demonstrate that there is evidence “upon
which a jury could properly proceed to find a verdict”
in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251 (1986) (internal quotation marks and citation omitted).
6                                                 No. 11-1327

   Modrowski has identified several supposed shortcom-
ings of the defendants’ motion, but none of these flaws
obviated his responsibility to “go beyond the pleadings”
in opposing summary judgment. First, he faults the
defendants for failing to file a Local Rule 56.1 Statement
of Material Facts. Under the Northern District of
Illinois’s Local Rule 56.1, a party moving for summary
judgment ordinarily must file “a statement of material
facts as to which the moving party contends there is no
genuine issue and that entitle the moving party to a
judgment as a matter of law.” N.D. Ill. L.R. 56.1(a)(3).
The local rules provide that failure to provide such a
statement can “constitute[] grounds for denial of the
motion,” and we have “consistently and repeatedly
upheld a district court’s discretion to require strict com-
pliance with its local rules governing summary judg-
ment.” See Koszola v. Board of Educ. of City of Chi., 385
F.3d 1104, 1109 (7th Cir. 2004) (citing Metropolitan
Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002). It
does not follow, however, that district courts cannot
exercise their discretion in a more lenient direction:
litigants have no right to demand strict enforcement
of local rules by district judges. Stevo v. Frasor, 662
F.3d 880, 887 (7th Cir. 2011). To the contrary, unless
the district court “enforce[s] (or relax[es]) the rules un-
equally as between the parties,” the decision “to overlook
any transgression [of the local rules] is left to the district
court’s discretion.” Id. (internal quotation marks and
citation omitted). No abuse of discretion occurred here.
  Relatedly, Modrowski faults the defendants for failing
to support their factual positions with appropriate cita-
No. 11-1327                                                 7

tions to the record, see Rule 56(c)(1)(A). This argument
reflects a fundamental misunderstanding of the legal
basis for the defendants’ motion. The defendants did
not move for summary judgment based on “affirmative
evidence that negates an essential element of the
nonmoving party’s claim”; rather, they were following
a “somewhat trickier” path to summary judgment
by asserting that the “nonmoving party’s evidence
[was] insufficient to establish an essential element of the
nonmoving party’s claim.” Celotex Corp., 477 U.S. at 331
(Brennan, J., dissenting). Both approaches are now
written into the Rules. See R. 56(c)(1)(B) (“A party
asserting that a fact cannot be . . . genuinely disputed
must support the assertion by showing . . . that an
adverse party cannot produce admissible evidence to
support the fact.”); Advisory Committee Notes on 2010
Amendments to R. 56 (“Subdivision (c)(1)(B) recognizes
that a party need not always point to specific record
materials. . . . [A] party who does not have the trial
burden of production may rely on a showing that a
party who does have the trial burden cannot produce
admissible evidence to carry its burden as to the fact.”).
  Focusing on a representative element of Modrowski’s
claims helps to illustrate the difference between these
two approaches. To prevail on his Computer Fraud
and Abuse Act claim, Modrowski would have had the
burden of proving that the defendants’ actions “caused [a]
loss . . . during any 1-year period . . . aggregating at least
$5,000 in value.” 18 U.S.C. § 1030(c)(4)(A)(i)(I). Were
the defendants aiming affirmatively to negate that
element—say, by asserting that the evidence irrefutably
8                                               No. 11-1327

showed Modrowski’s injury totaled only $2,500—the
absence of citations to the evidence on record would
be problematic. But that was not the defendants’ strat-
egy. They asserted that, if the case went to trial,
Modrowski would be unable to produce evidence suffi-
cient to meet his burden of proving that his injury ex-
ceeded $5,000. Modrowski counters that he was under
no obligation to conduct formal discovery, and this is
certainly true. See Praxair, Inc. v. Hinshaw & Culbertson,
235 F.3d 1028, 1032 (7th Cir. 2000) (“Discovery is costly
and in cases in which the stakes are small, or there is
a clearly dispositive legal argument, forbearing to
conduct discovery is not negligence.”). But once the
defendants pointed out the gap that they believed
existed in Modrowski’s case, he was obliged to point
to evidence that, if believed by the trier of fact, would
be sufficient to show that his loss did in fact exceed
$5,000. Modrowski could have come forward with af-
fidavits from would-be business partners who were
unable to contact him while he was locked out of his
account; he could have submitted receipts reflecting
the fees he paid to procure duplicates of lost financial
and billing records; or perhaps he might have con-
tented himself with a personal affidavit attesting to the
number of hours he devoted to recovering his emails.
See Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th
Cir. 2004) (court may consider self-serving affidavits at
summary judgment if they are based on personal knowl-
edge and set forth specific facts). Instead, he rested exclu-
sively on his complaint, and this was plainly inadequate.
Celotex Corp., 477 U.S. at 325 (Rule 56 does not “allow[]
No. 11-1327                                                   9

a party opposing summary judgment to resist a properly
made motion by reference only to its pleadings.”).
   Indeed, Modrowski might have conclusively estab-
lished most of the material facts alleged in his com-
plaint simply by highlighting the defendants’ failure to
file a timely answer to his first amended complaint.
Generally, a defendant must serve an answer within
21 days of receipt of service of a complaint (or within
60 days if she has waived service); failure to deny an
allegation constitutes an admission. F ED. R. C IV. P. 12(a)(1);
F ED. R. C IV. P. 8(b)(6) (“An allegation—other than one
relating to the amount of damages—is admitted if a
responsive pleading is required and the allegation is not
denied.”). While serving a Rule 12 motion tolls the dead-
line for a defendant to file an answer, filing a Rule 56
motion has no such effect. Compare F ED. R. C IV. P. 12(a)(4)
with F ED. R. C IV. P. 56. The defendants’ unorthodox
strategy of responding to Modrowski’s first amended
complaint with a motion for summary judgment, unac-
companied by any other responsive pleading, was thus
risky, because Modrowski could have pointed to “admis-
sions on file” to support his allegations. See Celotex,
477 U.S. at 324. Modrowski had the burden of presenting
these arguments to the district court, however, and
he failed to do so.
  Finally, Modrowski argues that the defendants failed
to meet their initial burden because their motion for
summary judgment “does not mention the statute
under which defendants believe they are entitled to
summary judgment.” It is true that the defendants’ motion
10                                              No. 11-1327

failed to recite the individual elements of each of
Modrowski’s claims. Instead, the defendants made the
more general assertion that “there [was] a complete lack
of proof concerning all of the essential element[s] of the
counts contained in Plaintiff’s First Amended Com-
plaint.” The defendants then supported this argument
by discussing Modrowski’s failure to conduct discovery
and by citing to controlling legal authority (e.g., Celotex;
Anderson; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986)). Modrowski’s thorough, though
misguided, responsive filing—which explained how his
complaint validly stated each of his six claims—shows
that Modrowski understood at least the scope of the
defendants’ motion. This may have been the bare mini-
mum, but in this case it sufficed.


                            III
  We A FFIRM the judgment of the district court.




                           4-8-13
