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Sisco v. Cleveland Construction

February 5, 2010

JACQUELINE SISCO AND RODNEY SISCO, HER HUSBAND, PLAINTIFFS
v.
CLEVELAND CONSTRUCTION, DEFENDANT/ THIRD-PARTY PLAINTIFF
v.
INTEGRITY BUILDERS OF INDIANA, INC., THIRD-PARTY DEFENDANT,



The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge

Magistrate Judge Blewitt

MEMORANDUM AND ORDER

I. Background

On February 23, 2007, Plaintiffs Jacqueline Sisco and Rodney Sisco, her husband, filed a Complaint against original Defendant, Cleveland Construction ("CC"). (Doc. 1). Plaintiffs allege that on June 28, 2005, while Jacqueline was working at a Wal-Mart Store in West Fall Township, Milford, Pike County, Pennsylvania, she tripped and fell (while exiting the store) in a store stairwell on a power tool cord left laying across the stairwell by Defendant CC. Defendant CC was hired as general contractor by Wal-Mart to perform renovations at the store. Plaintiffs allege that as a result of Jacqueline's fall, she suffered serious and permanent injuries. (Doc. 1, p. 2). The original Complaint was filed in federal court based on diversity jurisdiction under 28 U.S.C. §1332.*fn1 On May 23, 2007, Defendant CC filed its Answer with Affirmative Defenses to Plaintiffs' Complaint. (Doc. 5).

On September 13, 2007, Defendant CC filed a Motion for Leave to File a Third Party Complaint against Integrity Builders of Indiana, Inc. ("IBI"), one of the subcontractors hired by Defendant CC for the Wal-Mart renovations. (Doc. 13). On September 14, 2007, the Court granted Defendant CC's Motion. (Doc. 14).

On September 17, 2007, Defendant CC filed a Third Party Complaint against IBI, named as the Third-Party Defendant ("TPD"), pursuant to Fed.R.Civ.P. 14 and Local Rule 14.1, M.D. Pa. (Doc. 15).*fn2 On December 6, 2007, TPD IBI filed a Motion to Dismiss the Third Party Complaint against it pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. 19). TPD IBI simultaneously filed its Brief in support of its Motion, as required by Local Rule 7.5, M.D. Pa. (Doc. 20). On December 17, 2007, Defendant CC filed its Response to TPD IBI's Motion to Dismiss and its opposition Brief to said Motion. (Docs. 21 and 22). TPD IBI's Motion to Dismiss the Third Party Complaint was ripe for disposition.*fn3

On March 10, 2008, the Court issued a Memorandum and Order and directed, in pertinent part, as follows:

1. Third Party Defendant IBI's Motion to Dismiss CC's Third Party Complaint against it (Doc. 19) is DENIED.

2. Third-Party Defendant IBI shall file its Answer to CC's Third Party Complaint against it within ten (10) days of the date of this Order. (Doc. 23). See also Sisco v. Cleveland Const., 2008 WL 648916 (M.D. Pa.).

On March 31, 2009, TPD IBI filed its Answer with Affirmative Defenses to CC's Third Party Complaint against it. (Doc. 24).

The Court then allotted sufficient time for discovery. On May 18, 2009, TPD IBI filed a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56, with attached exhibits, Ex. A, Richard York deposition transcript, and Ex. B, Jerry Wancho deposition transcript. (Docs. 30, 30-2 and 30-3). TPD IBI filed its support Brief on May 26, 2009. (Doc. 31). On June 1, 2009, Defendant CC filed a paragraph-by-paragraph response (¶'s 1.-45.) to TPD IBI's Summary Judgment Motion. (Doc. 32). On June 8, 2009, Plaintiffs filed a paragraph-by-paragraph response (¶'s 1.-45.) to TPD IBI's Summary Judgment Motion, as well as a Brief in opposition to TPD IBI's Summary Judgment Motion, with attached exhibits, Ex. A, a copy of Defendant CC's Supervisor's Incident Report regarding Plaintiff Jacqueline Sisco's June 28, 2005 fall down the stairs at Wal-Mart, and Ex. B, portions of Wancho's deposition transcript. (Docs. 34 and 35). On June 16, 2009, TPD IBI filed the Affidavit of Daniel Lane, IBI's foreman for the Wal-Mart project, in support of its Summary Judgment Motion. (Doc. 36). Contrary to Local Rule 7.6, M.D. Pa., Defendant CC did not file a Brief in opposition, with legal citation, to TPD IBI's Summary Judgment Motion. As stated, CC only filed an answer to said motion sans any legal citation or citation to any evidence. Defendant CC's answer to TPD IBI's Summary Judgment Motion is clearly not an opposition brief.

TPD IBI's Summary Judgment Motion consists of 45 numbered paragraphs and each paragraph from ¶'s 7. through 43. contains a short statement of a fact with a citation to the record to support it. (Doc. 30, ¶'s 7.-43.). Thus, ¶'s 7.-43. of TPD IBI's Summary Judgment Motion reads like a Local Rule 56.1, M.D. Pa., Statement of Material Facts ("SMF").*fn4 However, the paragraph-by-paragraph responses of Plaintiffs and Defendant CC to TPD IBI's Summary Judgment Motion, even if construed as their responses to IBI's SMF, are improper under Local Rule 56.1 since they do not specifically cite to the record and to contrary evidence with respect to the paragraphs they deny. (Docs. 32 and 34).

TPD IBI moves for summary judgment with respect to Defendant CC's Third Party Complaint against it pursuant to Rule 56(c) by arguing that the evidence shows that CC's project manager (York) and site superintendent (Wancho) at the time of the accident, were not aware of any negligence or carelessness by IBI which caused Plaintiff Jacqueline's fall.*fn5

II. Motion for Summary Judgment Standard of Review

A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "`genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc.,, 477 .S. 242, 249 (1986)).

The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F.Supp. 314, 320 (E.D. Pa. 1982), aff'd. mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3dCir. 1976).

Moreover, the Third Circuit has indicated that "although the party opposing summary judgment is entitled to 'the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007)(NonPrecedential)(citation omitted).

III. Discussion

TPD IBI states that it is entitled to summary judgment with respect to Defendant CC's Third Party Complaint against it since it is undisputed that it was not negligent and that it did not cause ...


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