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Bjorgung v. Whitetail Resort

September 28, 2007

ANDERS ELLIS BJORGUNG, PLAINTIFF
v.
WHITETAIL RESORT, WHITETAIL SKI COMPANY, INC., U.S. SKI & SNOWBOARD ASSOCIATION, DEFENDANTS,
v.
ANDERS BJORGUNG, THIRD-PARTY DEFENDANT



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court are Third-Party Defendant's motion for summary judgment (Doc. No. 92), Defendants' first motion for summary judgment (Doc. No. 95), Defendants Whitetail Resort and Whitetail Ski Company, Inc.'s motion for summary judgment (Doc. No. 99), Defendants' second motion for summary judgment (Doc. No. 102), Magistrate Judge Smyser's Report and Recommendation (Doc. No. 128), and the objections of Plaintiff and Third-Party Defendant thereto (Doc. Nos. 130, 132). Upon a de novo review of the record and Magistrate Judge Smyser's Report and Recommendation, including a careful review of the parties' objections thereto, the Court finds that the Report and Recommendation should be adopted in its entirety. Accordingly, Defendants Whitetail Resort and Whitetail Ski Company, Inc.'s motion for summary judgment and Defendants' first motion for summary judgment will be granted and Defendants' second motion for summary judgment and Third-Party Defendant's motion for summary judgment will be denied as moot.

I. BACKGROUND AND PROCEDURAL HISTORY

In the interest of economy, the Court shall incorporate by reference the background and procedural history of this case as presented in the Report and Recommendation (Doc. No. 128, at 1-5) and proceed to address each of Magistrate Judge Smyser's recommendations in turn, responding to the parties' objections as necessary.

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 636(b)(1)(C), "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51 (1986). When deciding a motion for summary judgment, the Court views the facts in the light most favorable to the nonmoving party, who is "entitled to every reasonable inference that can be drawn from the record." Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). However, the nonmoving party may not simply sit back and rest on the allegations in his complaint; instead, he must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial."

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotations omitted).

With respect to the sufficiency of the evidence that the nonmoving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment is appropriate if, after adequate time for discovery, the non-movant fails to make a showing sufficient to establish the existence of an element essential to his case upon which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

III. DISCUSSION

A. Defendants Whitetail Resort and Whitetail Ski Company, Inc.'s Motion for Summary Judgment (Doc. No. 99)

In his Report and Recommendation, Magistrate Judge Smyser concluded that Defendants Whitetail Resort and Whitetail Ski Company, Inc. ("Whitetail") are entitled to summary judgment because they neither owned nor operated the Whitetail ski area ("Ski Area") at the time of Plaintiff's injury. (Doc. No. 128, at 9.) Plaintiff objects, arguing that, pursuant to Federal Rule of Civil Procedure 15, he is "entitled to amend his complaint because his failure to identify the proper Defendant resulted from a reasonable mistake concerning the identity of the proper party." (Doc. No. 132, at 5; Pl.'s Mem. 3.) According to Plaintiff, this "alleged misnomer" stemmed from Whitetail's failure to notify as "required by law the State Corporations office of any change of registered office for purpose of service of process."*fn1 (Id.) "The service of process," Plaintiff contends, "was proper." (Id.)

Federal Rule of Civil Procedure 15(a) provides that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). The decision to grant or deny leave is, however, entirely within the discretion of the court. Foman v. Davis, 371 U.S. 178, 182 (1962). The Supreme Court has counseled that leave should be denied in the presence of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Id.; see also Saini v. Bloomsburg Univ. Faculty, 826 F. Supp. 882, 889 (M.D. Pa. 1993). Thus, "when a party fails to take advantage of the opportunity to amend, without adequate explanation, leave to amend is properly denied." Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006) (citations omitted).

Denying a motion to amend for reason of undue delay is not at all uncommon among the courts of the Third Circuit. See, e.g., USX Corp. v. Barnhart, 395 F.3d 161, 169 (3d Cir. 2004) (delay of three years); Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 2001) (same); Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (same); Albee Homes, Inc. v. Litman, 406 F.2d 11 (3d Cir. 1969) (same); L.D. Schreiber Cheese Co. v. Clearfield Cheese Co., 495 F. Supp. 313 (D. Ct. Pa. 1980) (delay of two and one-half years); Meyers v. Schuylkill County Prison, No. 04-1123, 2006 WL 1094550, at *1 (M.D. Pa. April 25, 2006) (delay of twenty-two months). Nevertheless, there is no presumptive period during which such a motion is considered "timely" or after which delay becomes "undue." Arthur v. Maersk, Inc., 434 F.3d at 205. Courts are therefore obligated to "articulate the imposition or prejudice caused by the ...


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