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Nestico v. Wachovia Bank

July 10, 2006

RACHAEL L. NESTICO, PLAINTIFF,
v.
WACHOVIA BANK, DEFENDANT/THIRD PARTY PLAINTIFF,
v.
VICTOR NESTICO, THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge

MEMORANDUM

BACKGROUND

On October 6, 2004, plaintiff filed a two-count complaint in the United States District Court for the Middle District of Pennsylvania. Substantively, the complaint asserts a single cause of action in fraud. Count two of the complaint is a request for punitive damages. The complaint is brought under our diversity jurisdiction pursuant to 28 U.S.C. § 1332; defendant Wachovia Bank is a national bank with its main offices in Charlotte, North Carolina and plaintiff is a citizen of Pennsylvania.

The factual allegations that form the basis of this complaint arise out of a transaction entered into by plaintiff's ex-husband with Wachovia in January 2002 in which plaintiff's forged signature was used to obtain two mortgages. When one of these loans went into default plaintiff's credit rating was adversely affected.

Now before the court is defendant's motion for summary judgment filed on February 16, 2006. After several extensions of time to facilitate briefing the motion is now ripe for our decision. For the following reasons we will grant defendant's motion for summary judgment because plaintiff's claim is time-barred. DISCUSSION:

I. LEGAL STANDARD

It is appropriate for a court to grant a motion for summary judgment "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). "If the nonmoving party has the burden of persuasion at trial, 'the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.'" Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In evaluating a motion for summary judgment the court will draw all reasonable inferences from the evidence in the record in favor of the nonmoving party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, 578 (3d Cir. 1995). The nonmoving party, however, cannot defeat a motion for summary judgment by merely offering general denials, vague allegations, or conclusory statements; rather the party must point to specific evidence in the record that creates a genuine issue as to a material fact. See Celotex, 477 U.S. at 32; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).

II. FACTUAL BACKGROUND

A. Local Rule 56.1

First, we note that defendant complied with Local Rule 56.1 and submitted a statement of undisputed material facts in the form of short and concise numbered paragraphs supported by citations to the record. (Rec. Doc. No. 17.) Plaintiff has also filed a counter-statement of undisputed material facts in similar form. (Rec. Doc. No. 41.) Unfortunately, plaintiff's counter-statement of material facts fails to comply with the procedure set forth in Local Rule 56.1. Local Rule 56.1 provides in relevant part that: 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 [relating to the moving party's statement of material facts], 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.

Local Rule 56.1 (emphasis added).

Plaintiff's counter-statement of material facts repeatedly fails to include references to the parts of the record that support her statements. We will develop the uncontested factual background from both parties' statements of material facts, despite plaintiff's failure to comply with the procedure established by the Local Rules. However, we remind plaintiff that "[a]ll material facts set forth in the statement required to be served by the moving party will be ...


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