JAMES KNOLL GARDNER, United States District Judge
This matter is before the court on Plaintiff's Motion for Summary Judgment filed November 15, 2010. Defendants' Response to Motion for Summary Judgment Filed by Fabral, Inc. was filed December 9, 2010. Plaintiff's Reply Brief in Support of Motion for Summary Judgment was filed January 4, 2011.
For the following reasons, I grant the motion in part, deny it in part, and dismiss it in part as moot. On Count I, I enter judgment in favor of plaintiff Fabral, Inc. and against defendant B&B Metals, LLC on liability and compensatory damages only in the amount of $1,039,822.37; and I enter judgment in favor of plaintiff Fabral, Inc. and against defendant B&B Metals of Middlesboro, Inc. on liability and compensatory damages only in the amount of $498,136.98.
I deny the motion to the extent it seeks summary judgment on Count I in favor of plaintiff and against defendant B&B Roofing Company, Inc.
On Count II, I grant summary judgment in favor of plaintiff and enter judgment in favor of plaintiff Fabral, Inc. and against defendant Gary M. Brewster, in the amount of $1,537,959.35 plus interest at the rate of twelve percent per annum or the maximum rate permitted by law, whichever is less, from January 12, 2009 (the date of demand) until paid in full.
I dismiss Count III as moot.
Finally, I dismiss the motion as moot to the extent it seeks summary judgment in favor of plaintiff on defendants' entire counterclaim.
Jurisdiction in this case is based upon diversity of citizenship pursuant to 28 U.S.C. § 1332.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred in Lancaster, Pennsylvania, which is within this judicial district. Moreover, by contract, the parties agreed to venue in this district.*fn1
Plaintiff Fabral, Inc., a supplier of construction materials, initiated this action on January 21, 2009 by filing a three-count civil Complaint in this court. Count I alleges breach of contract against defendants B&B Roofing Company, Inc. ("B&B Roofing"), B&B Metals of Middlesboro, Inc. ("B&B Metals of Middlesboro"), and B&B Metals, LLC ("B&B Metals") (all three collectively, "B&B defendants"). Count II alleges breach of contract against defendant Gary M. Brewster. Count III alleges a claim for unjust enrichment against all defendants.
Plaintiff's claims arise from a business relationship whereby plaintiff supplied construction materials to the B&B defendants. The Complaint alleges that the B&B defendants by a credit agreement, and defendant Brewster by a personal guaranty, are obligated to pay for such materials supplied to the B&B defendants, but are in default.
On January 30, 2009, each defendant was served with the Complaint and Summons by personal service. On February 20, 2009, the Clerk of Court entered default against all defendants for failure to appear, plead or otherwise defend. That same day, plaintiff moved for default judgment against all defendants.
On March 4, 2009, defendants moved to set aside the default. By Order dated November 3, 2009, I granted defendants' motion, vacated the February 20, 2009 default, and denied plaintiff's motion for default judgment. The Answer, Affirmative Defenses and Counterclaims of Defendants ("Answer") was filed November 30, 2009.
In the Answer, defendants' counterclaims are set forth under the title "Counterclaims Pursuant to Fed.R.Civ.P. 13(a) and (b)". This section includes factual allegations regarding the parties' business and payment history.*fn2 The Answer then sets forth two specific counterclaims.*fn3
Counterclaim Count I alleges breach of contract against plaintiff, and avers that plaintiff improperly applied defendants' payments to earlier invoices in violation of an oral agreement referred to as the "Mountain Metals Balance Agreement" and the parties' written credit agreement. Counterclaim Count II is titled "Injunctive Relief" and seeks an order enjoining plaintiff from taking any action or asserting any claim or defense which is inconsistent with the terms of the Mountain Metals Balance Agreement.
On December 21, 2009, plaintiff filed its Answer with Affirmative Defenses to Counterclaims. Defendants filed an Amended Answer, alleging the same counterclaims, on May 17, 2010. Plaintiff answered the Amended Answer on June 7, 2010.
Plaintiff filed the within motion for summary judgment on November 15, 2010, with accompanying brief and concise statement of undisputed material facts. Defendant responded on December 9, 2010 by filing a brief in opposition and its Response in Opposition to Plaintiff, Fabral, Inc.'s, Undisputed Material Facts in Support of Motion for Summary Judgment. As discussed more fully below in footnote 2, that document, while titled a "response in opposition" to plaintiff's statement of facts, does not admit or deny any of plaintiff's proffered facts, and is more accurately characterized as a counter-statement of facts. Plaintiff filed its reply brief on January 4, 2011.
On February 23, 2011, defendants withdrew their entire counterclaim. Accordingly, as discussed below, I dismiss plaintiff's motion as moot to the extent it seeks summary judgment on those claims.
In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202, 211 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003). Only facts that may affect the outcome of a case are "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.
Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000). Plaintiffs cannot avert summary judgment with speculation or by resting on the allegations in their pleadings, but rather they must present competent evidence from which a jury could reasonably find in their favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995).
Based upon the pleadings, record papers, exhibits, and the parties'
respective concise statements of undisputed material facts,*fn4
the pertinent undisputed facts for purposes of the motion
Plaintiff's motion for summary judgment complies with that provision of my Order, and includes a separate statement which consists of 96 numbered facts with corresponding citations to the record. However, although defendants' response includes a separate statement of facts, it does not comport with my Order, which further required that "any party opposing a motion for summary judgment...shall file and serve, in addition to a brief, a separate short concise statement, responding in numbered paragraphs to the moving party's statement of the material facts about which the opposing party contends there is a genuine dispute, with specific citations to the record, and, where practicable, attach copies of the relevant portions of the record. All factual assertions set forth in the moving party's statement shall be deemed admitted unless specifically denied by the opposing party in the manner set forth in this paragraph."
Defendants' document titled "Response in Opposition to Plaintiff Fabral, Inc.'s Undisputed Material Facts in Support of Motion for Summary Judgment" consists of 18 numbered facts which do not appear to respond to plaintiff's proffered facts. Rather, defendants' statement is more accurately characterized as a counter-statement of facts with citations to the record. Defendants' filings do not include a document which responds directly to each of plaintiff's 96 allegedly undisputed material facts. Thus, defendants have not specifically denied any of the facts set forth in plaintiff's concise statement as required by my Rule 16 Status Conference Order.
The requirement for a concise statement and a responsive concise statement is consistent with the requirement of Rule 56 of the Federal Rules of Civil Procedure that the moving party provide proof that there are no genuine issues of material fact which would prevent him from being entitled to judgment as a matter of law. Moreover, in response, the non-moving party (in this case defendants) may not rest on its pleadings, but must come forward with competent evidence that demonstrates a genuine issue of material fact. Ridgewood, supra.
for summary judgment are as follows.
Defendant Gary M. Brewster is the owner of defendants B&B Metals and B&B Roofing. His son, Logan Brewster, is the owner of defendant B&B Metals of Middlesboro. During the relevant period, B&B Metals of Middlesboro and B&B Metals sold metal roofing to retail customers. B&B Metals of Middlesboro operated a retail store in Middlesboro, Kentucky. B&B Metals had retail stores in Harriman, Tennessee; Knoxville, Tennessee; and Oneida, Tennessee. B&B Metals of Middlesboro and B&B Metals purchased roofing materials from plaintiff Fabral. Each of the three B&B defendants does business under the trade name "B&B Roofing and Metals, Inc."
In addition, Rule 83(b) of the Federal Rules of Civil Procedure provides:
A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and local rules of the district. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or local district rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.
Thus, even if my requirement for a separate concise statement were not consistent with Rule 56, my October 16, 2009 Rule 16 Status Conference Order gave plaintiff actual notice of my requirement, and plaintiff clearly failed to comply with it. See Kelvin Cryosystems, Inc. v. ...