Garland v. Advanced Medical Fund, L.P. II

• Citation: 86 F.Supp.2d 1195
• Decision Date: 18 January 2000
• Docket Number: No. CIV.A. 1:97-CV-0010-JOF.,CIV.A. 1:97-CV-0010-JOF.
• Parties: Dr. Paul E. GARLAND and Laura R. Garland, Plaintiffs, v. ADVANCED MEDICAL FUND, L.P. II, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1195

86 F.Supp.2d 1195

Dr. Paul E. GARLAND and Laura R. Garland, Plaintiffs, v. ADVANCED MEDICAL FUND, L.P. II, et al., Defendants.

No. CIV.A. 1:97-CV-0010-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

January 18, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Frank Andrews Lightmas, Jr., Lightmas & Delk, Atlanta, GA, Maria C. Montenegro, Andrew Cotzin, Broad & Cassel, Ft. Lauderdale, FL, John W. Ringo, Marietta, GA, for Plaintiff.

Randall A. Schmidt, Savannah, GA, Robert Allen Kaiden, Kaiden & Kaiden, Smyrna, GA, Michael K. Wolensky, Angela G. Mielé, Kutak Rock, LLP, Atlanta, GA, for Defendants.

ORDER

FORRESTER, District Judge.

This matter is before the court on various dispositive and non-dispositive motions.

I. STATEMENT OF THE CASE

A. Procedural History

Plaintiffs, Paul E. Garland, M.D. and Laura R. Garland (collectively "Plaintiffs" or "the Garlands"), filed an action relating to various investments they made against Defendants in Florida state court on February 6, 1996. On January 3, 1997, the state court dismissed the action pursuant to a stipulation on grounds of forum non conveniens.¹ Plaintiffs filed the instant action on January 3, 1997. The Garlands filed an amended complaint on April 16, 1997, in which they seek relief against Defendants² in ten counts: (1) federal securities fraud pursuant to § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j, and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5; (2) violations of § 12 and § 17 of the Securities Act of 1933, 15 U.S.C. §§ 77l and 77q; (3) violation of the Florida Securities and Investor Protection Act ("FSIPA"), Fla. Stat. §§ 517.211(2) and 517.301; (4) rescission and rescissionary damages for violating §§ 517.211(2) and 517.301; (5) fraud in the inducement; (6) negligent misrepresentation; (7) breach of fiduciary duty; (8) breach of promissory note; (9) breach of guaranty; and (10) civil theft and conspiracy to commit civil theft pursuant to Fla. Stat. § 772.11. In an order dated January 22, 1998, this court dismissed Counts I and II of the amended complaint as to all Defendants, and it dismissed Count VII of the amended complaint as to all Defendants except Anderson. On July 1, 1999, after a contentious discovery period producing disputes that are still not fully resolved, the Garlands filed a motion for summary judgment as to Counts VIII and IX. Also on that date, Defendants filed three separate motions for summary judgment as to all counts.³

B. Initial Matters

Because they affect the consideration and description of the relevant facts in this case, the court must initially address several issues concerning the procedural requirements that accompany the filing of a motion for summary judgment. This court's local rules require that the movant "attach to the motion a separate and concise statement of the material facts to which the movant contends there is no genuine issue to be tried." LR 56.1B(1), N.D. Ga. Moreover, "[a]ll documents and other record materials relied upon by a party moving for or opposing a motion for summary judgment shall be clearly identified for the court." LR 56.1B(3), N.D. Ga. Apparently attempting to comply with these rules, all parties in this case have filed separate factual statements with their motions for summary judgment. Only the Garlands and Defendants Anderson and Advance Textile, however, support their factual statements with citations to evidence in the record. The other Defendants have failed to do so, and as a result, their motions are not in compliance with the rules of this court. Accordingly, Plaintiffs urge the court to deny these motions as not properly supported. Defendants argue, however, that Fed.R.Civ.P. 56 allows a party to move for summary judgment with or without supporting affidavits, and therefore the motions are proper. Additionally, Defendants note that reference to deposition testimony and exhibits is made in the supporting memorandum.

The court finds Defendants' arguments to be unavailing. The purpose of the requirements that movants file separate statements of fact and that evidence relied upon be clearly identified is to allow the court to compare the factual statement with the evidence and determine whether or not particular inferences can be drawn by the factfinder. In other words, these requirements facilitate the court in evaluating whether or not there exists a genuine issue of material fact. The court should not be made to guess the sources of a movant's version of the relevant facts. Indeed, the movant has an "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-09 (11th Cir.1991) (noting that Celotex did not overrule prior precedent that movant had initial burden of showing absence of genuine issue of material fact and declining to address for first time on appeal whether that burden had been met because "[t]o do so would require us to discharge the movant's Rule 56 responsibility of searching the record and identifying material in support of its motion"). Moreover, citations scattered throughout a legal brief do not comply with the requirement that sources be "clearly identified." LR 56.1B(3), N.D. Ga.

Another reason for disallowing an unsupported or "naked" fact statement is the nature of the appellate review process. The record created in the district court is the record considered by an appellate court. Imprecise and unsupported factual statements, which go to the very heart of a summary judgment determination, have a tendency to lead to imprecise and somewhat vague responses as the non-movant attempts to cover all the proverbial bases. As a result, the record created in the district court may be vague, which hinders expeditious review on appeal, Furthermore, while the appellate courts may in their discretion resolve questions on summary judgment that were not addressed by the district court, see Clark, 929 F.2d at 609, an unclear record runs the risk that either the district court will not consider all of the issues potentially raised or the appellate court cannot easily determine whether the issue was raised and addressed so as to evaluate whether it should exercise its discretion to review. Because of these deficiencies, the court DENIES the motions for summary judgment filed by Advance L.P., Advance Corp., AMD, T. Cottone, and J. Cottone and by C. Cottone.

In light of this ruling, the following facts are taken, except where otherwise indicated, from the statements of fact filed by the Garlands and Defendants Anderson and Advance Textile, as well as the responses thereto. These documents, however, are less than model examples of proper fact statements and responses. For example, several of the factual statements submitted by both Plaintiffs and Defendants constitute legal conclusions on issues to be tried in the case. Pursuant to Local Rule 56.1B(1), N.D. Ga., the court will not consider those statements. Also two of Plaintiffs' factual statements are not supported by citations to the record, and for the reasons discussed above, the court will not consider those statements either. Additionally, while most of the Defendants seek to controvert several of Plaintiffs' factual statements, most of their responses, with some exceptions, contain only the word "Denied."⁴ To dispute a statement of fact under Local Rule 56, a respondent must do more than simply write the word "Denied." Rather, the rule requires that the respondent specifically controvert the moving party's statement of facts or else those statements shall be deemed admitted. LR 56.1B(2). In other words, the respondent must provide specific facts, supported by something more than mere denials or allegations, showing that a genuine issue exists to be tried. See Sanders v. Nunley, 634 F.Supp. 474, 476 (N.D.Ga. 1985) (Evans, J.) (interpreting predecessor to LR 56.1B(2)). Cf. Tapley v. Collins, 41 F.Supp.2d 1366, 1368 n. 1 (S.D.Ga.1999) (Edenfield, J.) ("[A] non-moving party does not controvert an evidentially supported Fact Statement merely by stating ... that a factual assertion is `denied' or `controverted.'"). As such, those of Plaintiffs' factual statements that do not constitute legal conclusions and are properly supported by the record will be deemed admitted.

C. Facts

The Garlands, citizens of Florida, are husband and wife and have been continuously married since before January 1, 1990. All of the Defendants, with the exception of Advance Textile, are citizens of Georgia. Advance Textile is organized under the laws of the Northern Mariana Islands. (Def. Advance Textile's Ans. to Am. Complaint, ¶ 12). In 1992 and 1993, the Garlands invested a total of $168,750 in the stock of Advance Textile. The Garlands made these investments by writing: (1) a check dated July 8, 1992 in the amount of $37,500; (2) a check dated August 30, 1992 in the amount of $37,500; (3) a check dated October 7, 1993 in the amount of $70,000; and (4) a check dated October 15, 1993 in the amount of $23,750. Laura Garland stated that the Garlands delivered these checks to Anderson in Florida. (Dec. of L. Garland in Opposition to Motions for Summary Judgment ["L. Garland Dec."], ¶ 9). Anderson served as Vice-President and Director of Advance Textile and as a limited partner of Advance L.P. (Def. Anderson's Ans. to Am. Complaint, ¶ 17). The Garlands also stated that the first two checks, written in 1992, were for 75,000 shares of Class I Preferred Stock and that the final two checks, written in 1993, were for 75,000 shares of Class II Preferred Stock. (L. Garland. Dec., ¶...