Harnett v. Parris

• Decision Date: 24 April 1996
• Docket Number: No. 94-4251-SAC.,94-4251-SAC.
• Parties: John HARNETT, individually d/b/a Shamrock Greyhounds, Plaintiff, v. Carol J. PARRIS, Bob Parris, Carol Ann Long, and The National Greyhound Association, Defendants.
• Court: U.S. District Court — District of Kansas

925 F. Supp. 1496

John HARNETT, individually d/b/a Shamrock Greyhounds, Plaintiff, v. Carol J. PARRIS, Bob Parris, Carol Ann Long, and The National Greyhound Association, Defendants.

No. 94-4251-SAC.

United States District Court, D. Kansas.

April 24, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Steve A. Schwarm, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, Harry A. Woods, Jr., Randy Gordon, Crowe & Dunlevy, Oklahoma City, OK, for plaintiff.

Robert L. Baer, Cosgrove, Webb & Oman, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendant National Greyhound Association's motion for partial summary judgment (Dk. 48). The plaintiff brings this diversity action advancing claims of negligence, breach of contract, and outrage against the defendant National Greyhound Association ("NGA"). The plaintiff has dismissed his claim against the individual defendants. (Dk. 21, 23). The defendant NGA seeks summary judgment as to the plaintiff's outrage and punitive damage claims.

SUMMARY JUDGMENT STANDARDS

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; it requires "`presenting sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir.1995).

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

STATEMENT OF UNCONTROVERTED FACTS

In his response to the motion for summary judgment, the plaintiff set out twelve paragraphs of facts under the heading, "Material Facts Controverting Defendant's Statement of Uncontroverted Facts," and he set out twenty additional paragraphs under the heading "Material Facts Omitted by Defendant." (Dk. 56 at 2-7). Neither group of facts in plaintiff's response, however, "states the number of movant's fact that is disputed," as required by D.Kan. Rule 56.1.¹ Nor is it readily apparent from the plaintiff's response which of the movant's facts, if any, are controverted. The defendant in its reply brief pointed out this deficiency in the plaintiff's response.

Without leave of the court, the plaintiff filed a surreply and for the first time specifically controverted by number the defendant's statement of facts. The plaintiff offers no explanation for his failure to comply with D.Kan. Rule 56.1 in his original response. Moreover, the rules of this court do not provide for the filing of surreplies. D.Kan. Rule 7.1. The courts in this district do not permit a surreply without leave of the court, see, e.g., Edwards v. Esau Investments, Inc., No. 93-4130-DES, 1994 WL 606073, at *5 (D.Kan. Oct. 31, 1994); Dees v. Vendel, No. 91-2482-EEO, 1994 WL 17951, at *1 (D.Kan. Jan. 13, 1994), and reserve leave for rare circumstances as "where a movant improperly raises new arguments in a reply," E.E.O.C. v. International Paper Co., No. 91-2017-L, 1992 WL 370850 (D.Kan. Oct. 28, 1992). Under the circumstances, the court disregards the matters argued and presented in the plaintiff's surreply and the defendant's surreply.²

For purposes of only this motion for partial summary judgment, the court considers the following facts to be uncontroverted.

The NGA is a non-profit association established to create uniformity of registration of greyhound dogs throughout the United States. The NGA "maintains a registry recording the breedings, litters, and individual registrations of all greyhounds whelped in or imported into North America and the Canal Zone." (NGA Const. Art. I, § 3). Gary Guccione has been its secretary-treasurer since 1982 and its executive director since 1994. He is also an employee of NGA and keeper of the stud books. By reason of his responsibility and experience, Guccione is familiar with NGA's rules, procedures, practices and policies on the registration of greyhounds. Guccione estimates that the NGA annually processes approximately 75,000 registrations, including transfers. By its registry, the NGA strives first to maintain the integrity of the breed through the identification of dogs and the establishment of breeding lines and second to provide a proper trail of record ownership. The NGA does not require that the record ownership coincide with legal ownership, but it obviously strives to attain this coincidence.

According to the plaintiff John Harnett, in April or May of 1987 he first agreed to sell eleven greyhounds to Bob Parris, but their agreement subsequently changed to a leasing arrangement. Harnett entrusted Parris with transferring these dogs' registrations from the Irish Coursing Club to the NGA. Harnett gave Parris all the documents necessary to effect the transfer of the dogs based upon their leasing arrangement. The documents also would suffice to effect a transfer based upon the sale of the greyhounds.

Harnett joined the NGA in 1986 and understood its registration process. Harnett presented himself to the NGA as an experienced, knowledgeable and authoritative greyhound breeder and raiser. Prior to May of 1987, more than twenty of Harnett's dogs had been transferred from the Irish Coursing Club registry to the NGA registry. Harnett had relied on others to handle the paperwork on these transfers.

In May or June of 1987, the NGA received on the eleven leased greyhounds their Irish export pedigrees, original Irish identification cards, and Irish Coursing Club transfer documents. It appeared to the NGA that the parties intended to change registry and record ownership in a single transaction. The NGA informed Carol Babb, the person submitting the transfers and the daughter of Bob and Carol Parris, that it was a two-step process. The NGA requires the export pedigrees and identity card to transfer the dogs' registration from the Irish Coursing Club to the NGA registry. The NGA then requires NGA transfer documents and the forfeiture of the original certificate of ownership to make a change in record ownership. In a case like here where the greyhounds are registered with the Irish Coursing Club, the original Irish Coursing Club papers must be forfeited. The Club papers were submitted with the original packet of materials. The plaintiff admits he wrote his name and address as the late owner on these papers, but a portion of the papers showing the actual transfer of ownership was not executed. On June 9, 1987, Carol Babb submitted the additional NGA transfer documents, and the NGA completed the registration showing a change in the eleven greyhounds' record ownership from Harnett to Carol Babb.

In May of 1988, Harnett telephoned Guccione concerning problems he was having with the Parrises. Guccione following NGA's procedure asked Harnett to put this concern in writing. The NGA next heard from Harnett through a letter dated June 6, 1988, which stated in relevant part:

From the enclosed you will gather that I have run into a problem which I would like straightened out as soon as possible.... In April/May 1987 Mr. Bob Parris was in the process of purchasing 11 greyhounds. ... from me. The deal fell through and I agreed to (sic) Mr. Parris ... race the greyhounds for me (Shamrock Greyhounds)....

I gave Mr. Parris the import papers for the greyhounds and authorized him

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