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Eisenberry v. Shaw Brothers

January 15, 2010

ROBERT EISENBERRY, PLAINTIFF
v.
SHAW BROTHERS, L.L.C.; SHAW BROTHERS DONKEY BALL, L.L.C., TIMOTHY E. SHAW AND KIM M. SKERPON, DEFENDANTS



The opinion of the court was delivered by: Mannion, M.J.

MEMORANDUM AND ORDER*fn1

Pending before the court are: (1) a motion for summary judgment filed on behalf of defendants Shaw Brothers, L.L.C., Shaw Brothers Donkey Ball, L.L.C., and Timothy E. Shaw, ("Shaw defendants"), (Doc. No. 14); and (2) a motion for summary judgment filed on behalf of defendant Kim Skerpon. (Doc. No. 16).

By way of relevant procedural background, on July 15, 2008, the plaintiff filed the instant personal injury action based upon diversity jurisdiction. (Doc. No. 1). An amended complaint was filed on September 17, 2008. (Doc. No. 4). Answers to the amended complaint and cross-claims were filed by defendant Skerpon and the Shaw defendants on October 14, 2008, (Doc. No. 8), and November 17, 2008, (Doc. No. 9), respectively.

On August 12, 2009, a motion for summary judgment was filed on behalf of the Shaw brothers, (Doc. No. 14), along with a statement of material facts and exhibits, (Doc. No. 14), and a supporting brief. (Doc. No. 15).

On August 14, 2009, defendant Skerpon filed her motion for summary judgment, (Doc. No. 16), along with a statement of material facts and exhibits, (Doc. No. 16), and a supporting brief. (Doc. No. 17).

After having been granted a nunc pro tunc extension of time to do so, (Doc. No. 22), on September 25, 2009, the plaintiff filed a brief in opposition to defendant Skerpon's motion for summary judgment, (Doc. No. 26), along with a response to her statement of material facts, (Doc. No. 27), and a response to her motion for summary judgment. (Doc. No. 28). On the same date, the plaintiff filed an answer to the statement of material facts filed by the Shaw defendants, (Doc. No. 29), along with a brief in opposition to their motion for summary judgment, (Doc. No. 30), a response to their motion for summary judgment, (Doc. No. 31), and supporting exhibits. (Doc. No. 32).

Reply briefs were filed in support of the Shaw defendants' motion for summary judgment, (Doc. No. 35), and defendant Skerpon's motion for summary judgment, (Doc. No. 36), on October 2, 2009. (Doc. No. 35).

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 Supreme Court has stated that:

"... [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. In such a situation, 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. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. The moving party can discharge that burden by "showing... that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Issues of fact are genuine "only if a reasonably jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988)(citations omitted). Material facts are those which will effect the outcome of the trial under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court may not weigh the evidence nor make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). In determining whether an issue of material fact exists, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the nonmoving party. Id. at 393.

If the moving party meets his initial burden, the opposing party must do more than raise some metaphysical doubt as to material facts, but must show sufficient evidence ...


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