The opinion of the court was delivered by: (Magistrate Judge Smyser)
The defendants filed a motion for summary judgment on February 7, 2006 (Doc. 13) with a LR 56.1 statement of material facts that as the moving parties they contended are not in dispute (Doc. 14), as well as a brief in support (Doc. 15) and affidavits and documents (Doc. 16). After the completion of briefing, a Memorandum and Order denying the summary judgment motion was entered. (Doc. 22, Memorandum and Order of March 13, 2006). Without filing another motion for summary judgment or another LR 56.1 statement of facts, the defendants on April 28, 2006 filed "Brief in Support of Defendants' Renewed Motion for Summary Judgment." (Doc. 23). Attached to the brief is the Affidavit of Wade Smith, a transcript of the deposition of Oscar Cernas, a transcript of the deposition of Apolonio Martinez, a transcript of the deposition of Wade Smith, a transcript of the deposition of Mark Reardon, a transcript of the deposition of Randy McKenrick, a transcript of the deposition of Wayne Baer, a transcript of the deposition of Benjamin Kalesa and a copy of a bill of lading.
The plaintiff filed a brief in opposition (Doc. 24) and the defendants file a reply brief (Doc. 25).
In their brief, the defendants assert that the plaintiff has come forward with no evidence that the method used to load the trailer driven by the plaintiff deviated from ordinary care, that Tri-State Load Master, Inc. loaded the tires into the trailer driven by the plaintiff by a method that is industry practice and common practice, that Tri-State Load Master is an independent contractor who was not controlled by the defendants, that the defendants can not be held liable for negligence on the part of Tri-State Load Master and that the defendants were not the proximate cause fo the plaintiff's injuries because the tires were not loaded by the defendants.
The defendants present the assertion that the Memorandum and Order of March 13, 2006 "indicated the defendants had control over the work of Tri-State Load Master and directs the contractor to load the tires in a certain way", the assertion that "the issue regarding the method of loading tires . . . is not an issue of material fact to preclude summary judgment . . . [because] the method used by Tri-State Load Master to load plaintiff's trailer is industry standard" and because "[p]laintiffs have offered no evidence that this method itself is negligent, . . . that this method of loading tires is substandard or improper, . . . [or] . . . that the accident was caused or would have been prevented had some other tire loading method been selected."
Although a second motion for summary judgment would not be precluded by the rules, we can not find a second motion to have been filed here. There is no motion, there is no LR 56.1 statement and as a result there is no clear summary judgment theory or theories.
As stated in the Memorandum and Order of March 13, 2006, summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may discharge that burden by "'showing'--- that is, pointing out to the district court --- that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A material factual dispute is a dispute as to a factual issue that will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).
"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, supra, 477 U.S. at 322. "Under such circumstances, 'there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Anderson v. CONRAIL, 297 F.3d 242, 247 (3d Cir. 2002)(quoting Celotex, supra, 477 U.S. at 323).
Local Rule 56.1, Rules of Court, M.D. Pa., provides:
A motion for summary judgment filed pursuant to Fed.R.Civ.P. 56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
In the March 13, 2006 Memorandum and Order, we stated the summary judgment issue to be "whether there is evidence from which a reasonable inference can be drawn that the defendants had the responsibility to ascertain the correct and careful loading of the trailer." (Doc. 22, p.8). We determined it to be a correct statement of applicable law that "[w]hen a manufacturer and seller of tires has employed a contractor to load the tires from the manufacturer's warehouse on to trailers hauled by truckers to distribution destinations for the tires, and when the manufacturer has retained supervisory control over the work of the contractor operating at the manufacturer's warehouse and directs the contractor to load the tires in a certain way, the fact that the physical performance of the manufacturer's trailer-loading phase of its tire distribution ...