Opinion
Case No. 93-46404-rdd Case No. 94-08469-rdd
08-08-2011
In re: JWP, INC. Debtor. R. KEITH MILLIGAN, et al., Plaintiffs, v. HETRA COMPUTER & COMMUNICATION INDUSTRIES, INC., et al., Defendants.
For the Plaintiff: (Via Telephone) For EMCORE GROUP, INC.: (f/k/a JWP, Inc.) R. KEITH MILLIGAN (Pro Se) DAVID A. SIFRE, ESQUIRE Stroock & Stroock & Lavan, LLP
MODIFIED AND CORRECTED BENCH RULING ON EMCORE GROUP, INC.'S
MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
For the Plaintiff:
(Via Telephone)
For EMCORE GROUP, INC.:
(f/k/a JWP, Inc.)
R. KEITH MILLIGAN
(Pro Se)
DAVID A. SIFRE, ESQUIRE
Stroock & Stroock & Lavan, LLP
THE COURT: I have before me a motion by Emcore Group, Inc., formerly known as JWP, Inc., a Defendant in this adversary proceeding, for summary judgment pursuant to section -- I'm sorry, pursuant to Bankruptcy Rule 7056, which incorporates Fed.R.Civ.P. 56. That Rule provides that the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Subject to Fed.R.Civ.P. 56(C)(2) through (4) and 56(D) through (E), which are inapplicable here, a party asserting that a fact cannot be or is genuinely disputed must support the assertion by, a) citing to particular facts or parts of materials in the record including depositions, documents, electronically stored information, affidavits, or declarations, stipulations, admissions, interrogatory answers, or other materials; or b) by showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(C)(1).
The movant bears the initial burden to come forward with evidence that satisfies each material element of its claim or defense. Vermont Teddy Bear Company v. 1-880-BEARGRAM Company, 373 F. 3d 241, 244 (2nd Cir. 2004); Isaac v. City of New York, 701 F.Supp. 2d 477, 485 (SDNY 2010), affirmed 271 F.App. 60 (2nd Cir. 2008).
Upon such a showing the non-moving party must provide evidence of a genuine issue of material fact in order to successfully oppose the motion. Matsushita Electric Industries Company v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Facts are material if they "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1996).
The Court "is not to weigh the evidence, but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty America v. Town of West Hartford, 361 F. 3d 113, 122 (2nd Cir. 2004).
The non-moving party may not defeat a summary judgment motion by identifying a disputed fact that is not material or relying on conclusory or self-serving statements or metaphysical doubts about a material fact. Liberty Lobby, 477 U.S. at 247 through 248; Matsushita Electric, 475 U.S. at 586.
Where opposition of the motion is based upon an asserted dispute of material factual issue, there must be evidence on which the trier of fact could reasonably find for the non-moving party. Id at 248.
"Although if there is any evidence in the record from any source from which a reasonable inference in the non-moving party's favor may be drawn, the moving party simply could not obtain a summary judgment." Binder & Binder, PC v. Barnhart, 481 F. 3d 141, 148 (2nd Cir. 2007). See generally, Matsushita v. Zenith Radio Corp. , 475 U.S. at 586.
In addition, Local Bankruptcy Rule 7056-1 is applicable here. Subsection (d) of that rule provides, "Each numbered paragraph in the statement of material facts required to be served by the moving party shall be deemed admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party."
It has repeatedly been held that the opposing party's failure to controvert any of the facts asserted in a Rule 7056 statement or otherwise in the Motion for Summary Judgment, the statement of facts is deemed admitted -- I'm sorry, that the -- let me say that again.
It has repeatedly been held that the failure to controvert any of the facts set forth in the movant's Rule 7056 statement of facts results in the deemed admission of that statement. See, In re: Interbank Funding Corp. , 310 B.R. 238, 254, and the cases cited therein (Bankr. SDNY 2004).
Before turning to the motion and the facts set forth therein which, are therefore deemed admitted given that there has been no response to the motion, let alone a Rule 7056-1 statement filed by Mr. Milligan specifically controverting the facts set forth in Emcore's Rule 7056-1 statement, I should note that the Plaintiff in this case, Mr. Milligan, contends that he did not receive a copy of Emcore's Motion for Summary Judgment, although he acknowledges, as is clear from the record, that he was aware of the motion as well as today's hearing on the motion, since, at his request, the motion was adjourned, or the hearing on the motion was adjourned, from April 26th to today's date. (See Docket Entry 288.)
It is presumed, given the certificate of service that was filed listing Mr. Milligan's correct address, that he received service of the motion. See -- and I will fill in the cite for this when I review the transcript -- In re: R.H. Macy Company, 161 B.R. 355, 359 (Bankr. S.D.N.Y 1993) (citing Hagner v. United States, 285 U.S. 427, 430, 52 S. Ct. 417, 76 L. Ed. 861 (1932)), In re: Dana Corporation, 2007 Bankr. LEXIS 1934, at *13-15 (Bankr. S.D.N.Y. May 30, 2007), and In re: Delphi Corporation, 2009 Bankr. LEXIS 571, *4-5 (Bankr. S.D.N.Y. January 20, 2009).
As set forth in those rulings, all from this District, the foregoing presumption is not rebutted simply by statements that the document was not received contrary to a certificate of service.
Such statements are all that I have before me and, in light of that and the foregoing case law, as well as the fact that Mr. Milligan clearly had knowledge that there was a pending motion for summary judgment at least from April 25, 2011, I find and conclude that he did, in fact, have the motion and that it was served on him properly.
I know also that Mr. Milligan contends that he was unable to respond to the motion because of his illness. I accept his representations to the Court that, in fact, he has been severely ill for some time. I will note, however, that this matter also has been pending for a long time. The hearing during which I ruled that this matter would be dealt with on the evidence with regard to the issue of damages and whether Emcore and JWP acted not in good faith in missing the three year deadline agreed to by the parties in their settlement agreement, that hearing occurred
MR. MILLIGAN: Only by 20 years.
THE COURT: -- that hearing occurred on December 13, 2005. The record of discovery in this case is set forth in the motion, including the Plaintiff, Mr. Milligan's, response to Emcore's interrogatories, which response is undated, although the interrogatories were dated August 20, 2010. It states that Mr. Milligan, other than relying on common sense and Florida case law, is unable to state what specifically JWP should have done to have completed the remediation within three years of the February 22, 1995 Order approving the settlement between the parties, and implicitly states that he's not aware of whether any specific facts could be shown to establish that JWP did not act in good faith in doing so.
In addition, those interrogatory answers merely respond as "irrelevant" to Emcore's interrogatories 2 through 10, going to the elements of potential damages caused by the failure to complete the remediation within that three year period.
Thus, while I'm obviously sympathetic to Mr. Milligan's health conditions, I do not believe that there's a basis here to delay the determination of this motion in an adversary proceeding that has been live and ready to be dealt with through the discovery process, and then either summary judgment or a trial, since at least February 2, 2006 when I entered the Order memorializing my December 13, 2005 bench ruling.
Then, turning to the merits of the motion itself, the issues in this adversary proceeding are properly stated by Emcore, repeating the next-to-last decretal paragraph of my February 2, 2006 Order; that is, Plaintiff shall be required to prove that (a) JWP's failure to clean up the property by the deadline provided in the February 22, 1998 Order caused damages to the Plaintiffs, and (b) that the failure was caused by JWP's lack of good faith to clean up by such deadline.
As was made clear at the December 13, 2005 hearing, at page 42 of the transcript, and by the disjunctive nature of the issue that I've just read, the failure to establish either point (a) or point (b) would result in a judgment in favor of Emcore.
The notice of motion contains, as is required by Local Bankruptcy Rule 7056-1, a statement of uncontroverted facts, which are supported by the affidavits of Messrs. Long and Barq, which I have also reviewed. Those three documents, that is: the Rule 7056-1 statement, the Long declaration, and the Barq declaration or affidavit, establish that JWP/Emcore acted in good faith in pursuing the clean up or remediation of the property at issue, the Philips Street property.
In particular, the 7056-1 statement states, at paragraph 11: "There is no evidence that the Philips Street property could have been cleaned up by February 1997, much less the failure to clean the property by that date, was due to JWP's lack of good faith effort to clean the property." The Barq affidavit - although, given the fact that Mr. Milligan did not file a controverting Rule 7056-1 statement it is not necessary for him to rely on the Barq affidavit --the Barq affidavit confirms the foregoing uncontroverted assertion, not in a conclusory way, but, rather, by detailing the history of the clean-up through the date of the three-year anniversary of Judge Gallet's 1995 Order.
In addition, the Plaintiffs have not stated the amount of any damages they claim to have suffered as a result of the failure to clean up the property by that three-year anniversary, and, in fact, in their interrogatory answers have stated that the issue of damages and their calculation is irrelevant.
Given all of that, I find and conclude that Emcore has carried its burden on its Motion for Summary Judgment and that that motion should be granted.
So, counsel for Emcore should submit an order consistent with my ruling at the chambers address. It doesn't need to settle that order with Mr. Milligan, but it should email him a copy of it as well as mail it to the address on the certificate of service for the Summary Judgment Motion.
As I said, I will add to the transcript the cites to the Macy, Dana, and Delphi cases, since I did not know that Mr. Milligan was going to contend that he didn't receive the documents.
MR. MILLIGAN: I did not understand what you said.
THE COURT: I'm going to add those cites to the transcript, since I did not have them with me here, not knowing that Mr. Milligan was going to assert that he did not receive a copy of the Summary Judgment Motion.
So, Mr. Sifre, you can submit that order to chambers as I instructed.
Dated: White Plains, NY
August 8, 2011
Hon. Robert D. Drain
United States Bankruptcy Judge