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Vadovsky v. Treat

June 11, 2010


The opinion of the court was delivered by: Judge Vanaskie



Pursuant to an Order entered on May 3, 2010 (Doc. 52), Honorable Thomas Vanaskie referred defendant's pending Motion for Summary Judgment to the undersigned Magistrate Judge for the purpose of preparing a Report & Recommendation.

I. Background

Plaintiff Robert Vadovsky commenced this lawsuit on July 29, 2008 by filing a complaint (Doc. 1) against defendants Jeffrey S. Treat and Law Offices of Jeffrey S. Treat, alleging legal malpractice, breach of contract, breach of fiduciary duty, fraud, and unjust enrichment. The procedural history and factual background of the case follows.

(A) Procedural History

After the filing of the complaint on July 29, 2008 (Doc. 1), defendants answered on August 22, 2008 (Doc. 5). On November 4, the case was referred to Chief United States Magistrate Judge Thomas M. Blewitt for non-binding mediation (Doc. 9), which ended inconclusively. The Court established a case-management plan on November 6.

(Doc. 14.) Under the case-management plan, plaintiff's original deadline for producing an expert-witness report was June 15, 2009. (Id. at p. 2.) This deadline was extended by order of the Court to October 13, 2009 in light of the withdrawal of plaintiff's counsel. (Doc. 42.) Plaintiff sought an extension of time to find new counsel, meanwhile seeking to establish that he needed no expert testimony to support his malpractice claim. (Doc. 46.) He had not by this time, and has not since, filed an expert-witness report. (Id.) On October 21, the Court denied plaintiff's request for an extension and permitted the defendants to file a dispositive motion based on the absence of an expert-witness report. (Id.) Defendants filed a motion for summary judgment on October 23, 2009, which motion is now before the Court. (Doc. 47.) Both parties have submitted briefing. (Docs. 48--51.)

On May 13, 2010, the undersigned entered an order (Doc. 53) requiring plaintiff to refile his statement of facts with citations to the record, since his first statement of facts (Doc. 50) was devoid of any indication of the evidentiary sources for his factual claims.*fn1 The deadline for refiling was May 24, 2010, a deadline that has come and gone unheeded by plaintiff.

Federal Rule of Civil Procedure 56(e)(2) states: "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather its response must... set out specific facts showing a genuine issue for trial." Local Rule 56.1 builds on this requirement, indicating that a party's statement of material facts supporting or opposing a motion "shall include references to the parts of the record that support the statements."

Lacking any citations to the record, plaintiff's statement of facts is defective, and having ignored an order of the Court, plaintiff has missed the chance to repair the defect. As a result, plaintiff cannot rely on either the averments in his complaint or in his statement of facts as support for his memorandum opposing summary judgment. Since defendants' statement of facts properly includes citations to the record for each of their factual assertions, the Court adopts defendants' version of the facts in full, which is presented below. See Local Rule 7.8(a) ("If counter statements of facts or questions involved are not filed, the statements of the moving party will be deemed adopted.").

(B) Statement of Facts

Forming the background of this case are two criminal complaints filed, as near as can be determined here, sometime in 2005 or 2006 against Vadovsky in Susquehanna County, Pennsylvania. (See Legg's Dep. 5:18--23, Jan. 6, 2009 (mentioning a criminal complaint against Vadovsky in December 2005); Doc. 50, ¶ 1 ("On or about October 16, 2006, Robert Vadovsky received two criminal complaints....").) One led to a misdemeanor charge for removing levied property from the state (Pl.'s Dep. 14:18--17:6, Jan. 12, 2009); the details of this charge (The Rent-E-Quip case) are irrelevant here.

The second criminal complaint (the Lee case), on which this case is centered, gave rise to two third-degree felony counts against Vadovsky: one for theft by failure to make required disposition of funds, and one count of theft by deception. (Id. 19:19--20:4.) This second complaint was filed by Claire Lee, a client of Vadovsky's, who had contracted with Vadovsky to replace her septic system. (Id. 20:9--14.) Two contracts were involved. The first was for Vadovsky to test Lee's soils and design the septic system for $500; Lee paid and Vadovsky performed the work. (Id. 21:9--15.) On the second, Lee paid Vadovsky $11,000 to perform the installation. (Id. 21:16--18, 22:20--22.) Vadovsky did not complete the work. (Id. 22:23--24.)

While the work on the installation contract was still pending completion, Vadovsky relocated to Florida. (Id. 23:1--5.) He did not ...

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