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H. DAROFF & SONS v. STRICKLAND TRANSP. CO.

May 10, 1968

H. DAROFF & SONS, INC.
v.
STRICKLAND TRANSPORTATION CO., Inc.



The opinion of the court was delivered by: MASTERSON

 Plaintiff has brought this civil action against the defendant-carrier, Strickland Transportation Inc., claiming damages arising from Strickland's loss of four shipments of men's clothing made by plaintiff between August 29, 1966, and October 3, 1966. Federal jurisdiction of this action is based upon the provisions of the Interstate Commerce Act, Title 49 U.S.C.A. § 20(11), and upon Title 28 U.S.C.A. § 1337.

 Plaintiff has moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the basis that there "* * * is no genuine issue as to any material fact * * *" and that he "* * * is entitled to judgment as a matter of law * * *" See, Rule 56(c). Plaintiff supports this motion by reference to admissions of material fact on file, by his answers to defendant's interrogatories, and by five evidentiary affidavits sworn to by plaintiff's shipping manager and the four consignees to whom the shipments were sold. Defendant opposed the plaintiff's motion at the oral argument conducted in December, 1967, but he has at no time filed any opposing affidavits or the form of affidavit authorized by Rule 56(f) when "* * * a party opposing the motion * * * cannot * * * present by (evidentiary) affidavit facts essential to justify his opposition." For reasons discussed below this Court must grant the plaintiff's motion and enter summary judgment for him on the issue of liability. The record does not indicate clearly whether there also is an absence of dispute concerning certain facts which are material to the issue of defendant's damages, and, accordingly, decision on plaintiff's motion for summary judgment, insofar as it is directed to this issue, will be stayed for a period of thirty days.

 The material facts underlying plaintiff's complaint are as follows:

 (1) that five cartons were shipped by plaintiff to four different consignees;

 (2) that the defendant accepted these cartons, issued Uniform Bills of lading to the plaintiff, and subsequently failed to deliver any of the cartons to the consignees;

 (3) that the cartons contained various items of men's clothing;

 (4) that, at the time of shipment, the contents of the cartons were in good order and condition;

 (5) that the cartons were properly packaged and labeled;

 (6) that the sum of the invoice values of the goods shipped was $3536.65 (the four individual amounts were $1242.00, $505.00, $1004.00, and $786.65).

 In his answer defendant admitted facts (1) and (2) above, and denied facts (3) through (6). In support of his motion, plaintiff submitted five affidavits which incorporated attached Bills of Lading and copies of the invoices. These documents contained sworn statements to the effect that: 1) the cartons contained various items of men's clothing; 2) the contents of the cartons were in good order and condition at the time of shipment; 3) the cartons were packed and labeled properly; 4) the sum invoice value of the goods shipped was $3536.65; and 5) the declared value of the goods was $4050.00. *fn1" Pursuant to Rule 56(e) the plaintiff supplemented these affidavits with his answers to defendant's interrogatories which more precisely specified the items of clothing involved. In these answers he explained also that the invoice values referred to in his complaint represented "* * * wholesale uniform prices charged to all retailers * * *"

 Plaintiff's evidence thus substantiates each of the facts which the defendant had denied in his answer. As noted supra, p. 511, the defendant has not presented any form of denial of these facts other than the general denials contained in his pleadings. Although the moving party bears a heavy burden in satisfying the terms of Rule 56, particularly when he is the claimant, See generally, Stuart Inv. Co. v. Westinghouse Electric Corp., 11 F.R.D. 277, 279-280 (Neb., 1951), Young v. Atlantic Mutual Insurance Co., 38 F.R.D. 416, 417 (E.D.Pa., 1965), Rule 56 clearly prescribes granting summary judgment when, as here, there is "* * * no genuine issue as to any material fact." To deny summary judgment upon the issue of defendant's liability would be a decision adverse to the policy interest favoring expedition of litigation which underlies Rule 56 and the Federal Rules of Civil Procedure in general. See generally Rule 1, and Moore, Federal Practice, Volume 6, PP 56.04[1], and 56.02[1].

 The Court's decision here is consistent with the 1953 amendments to Rule 56(e), which provide in pertinent part:

 
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he ...

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