Kings Professional Basketball Club, Inc. v. Green, 84-0182-CV-W-1.

• Decision Date: 17 August 1984
• Docket Number: No. 84-0182-CV-W-1.,84-0182-CV-W-1.
• Citation: 597 F. Supp. 366
• Parties: KINGS PROFESSIONAL BASKETBALL CLUB, INC., Plaintiff, v. Michael K. GREEN, Defendant.
• Court: U.S. District Court — Western District of Missouri

597 F. Supp. 366

KINGS PROFESSIONAL BASKETBALL CLUB, INC., Plaintiff, v. Michael K. GREEN, Defendant.

No. 84-0182-CV-W-1.

United States District Court, W.D. Missouri, W.D.

August 17, 1984.

Gerald M. Kraai, John D. Dunbar, Robert J. Margolin, Margolin & Kirwan, Kansas City, Mo., for plaintiff.

Arthur H. Stoup, David W. White, Stoup & Thompson, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDERS RULING PENDING MOTIONS

JOHN W. OLIVER, Senior District Judge.

I.

This case pends on (1) defendant Green's motion to dismiss or in the alternative, motion to stay pending final determination of the state court action and (2) plaintiff's motion for summary judgment. Orders will be entered denying defendant Green's alternative motion to dismiss or to stay and granting plaintiff's motion for summary judgment.

II.

Defendant Green's alternative motion to dismiss or to stay was filed March 12, 1984. On May 11, 1984, the parties agreed upon and filed a stipulation of undisputed facts to which was attached a number of relevant exhibits. On May 24, 1984, after consideration of the suggestions filed by the parties in support and in opposition to defendant Green's alternative motion, we entered a memorandum and order which stated the following:

"Pending in this case is defendant's motion to dismiss or in the alternative, motion to stay pending final determination of the state court action. We have carefully considered the suggestions filed by both sides in support of their respective positions and, based upon the stipulation of evidence presently in the record, we are prepared to enter an order denying defendant's motion based upon the Supreme Court's holdings in Southland Corp. v. Keating, ___ U.S. ___, 104 S.Ct. 852 79 L.Ed.2d 1 (1984); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927 74 L.Ed.2d 765 (1983)."

In order to make certain that all data was before the Court which counsel wanted to be considered in connection with that motion, we stated that:

"Before making a final determination of defendant's motion we want to make certain that neither of the parties contend that any factual issue is in dispute. The parties will therefore be required to file a joint response stating either (1) that there are no disputed facts and no additional relevant evidence to be adduced; or (2) what facts are in dispute and what evidence needs to be adduced."

The files and records in this case show that on June 4, 1984, the parties filed their joint response pursuant to the May 24, 1984 order. Our July 6, 1984 memorandum and order, which denied defendant Green's June 29, 1984 motion to stay consideration of plaintiff's motion for summary judgment, noted that the parties were in agreement that there were no facts in dispute and that no additional evidence need be adduced before this Court's ruling of defendant Green's alternative motion to dismiss or to stay. Indeed, Order (5) entered on July 6, 1984 stated that it was not necessary to make any additional directions in regard to defendant's alternative motion to dismiss or to stay for the reason the Court had been advised by the parties that such motion was ripe for determination.

We have again considered the briefs in support and in opposition to defendant's alternative motion to dismiss or to stay. We are satisfied, as we stated in our May 24, 1984 memorandum opinion, that the Supreme Court's recent decisions in Southland Corp. v. Keating, supra and Moses H. Cone Memorial Hospital v. Mercury Construction Corp., supra, require that we enter an order denying defendant's alternative motion to dismiss or to stay. As stated most recently in Southland Corp. v. Keating, the Congress, in enacting § 2 of the Federal Arbitration Act, "declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration."

The order we indicated in our May 24, 1984 memorandum that we were then prepared to enter denying defendant's motion will therefore be entered at this time.

III.

We also discussed the procedural posture of plaintiff's motion for summary judgment in our July 6, 1984 memorandum opinion. We there noted that the June 4, 1984 joint response filed by the parties pursuant to this Court's May 24, 1984 order, reflected the plaintiff's view that plaintiff's motion for summary judgment was then in appropriate posture for ruling. We also noted that the joint response stated that defendant did not agree that a final determination as to the plaintiff's alleged right to permanent equitable relief could be determined on the basis of the joint stipulation of the parties, filed May 11, 1984, and upon plaintiff's statement of supported facts, filed May 31, 1984. Our July 6, 1984 memorandum opinion expressly stated that the joint response, as agreed to by counsel for both sides, did not "reflect any contention on the part of the defendant that there are any material facts in dispute which would preclude the ruling on the merits of plaintiff's March 31, 1984 motion for summary judgment."

Plaintiff's May 31, 1984 statement of supported facts was filed in support of its motion for summary judgment which was filed the same day. Although paragraph 9 of a proposed agreed Rule 16(b) and Rule 26(f) order scheduling discovery, filed March 27, 1984, reflected that the parties then agreed that "neither party presently believes that any discovery will be necessary in this case," we have attempted throughout our processing of this case to direct proceedings that would establish the presence or absence of any dispute concerning any material factual issues which would preclude the case from being ruled on a Rule 56 motion for summary judgment.

The June 4, 1984 joint response of the parties did not reflect that defendant in any way placed in dispute any of the 35 paragraphs contained in plaintiff's May 31, 1984 statement of supported facts. Rather, paragraph 4 of the joint statement simply stated that defendant "Green contends that the `facts' listed in Paragraphs 3, 5, 7, 8, 9, 10, 11, 15, 16, 17 and 18 are questions of law, not fact." In a similar manner, paragraph 6 of the joint statement stated that defendant "Green further contends that the `facts' listed in Paragraphs 27 and 28 are irrelevant and not admissible." And paragraph 7 of the joint response stated that defendant "Green also contends that the `facts' listed in Paragraphs 33, 34 and 35 are mere allegations and are not facts upon which this Court may base its decision."

In order to ascertain whether any issue of material fact was in dispute which would preclude our ruling plaintiff's motion for summary judgment, we entered the following order of July 6, 1984:

"ORDERED (3) that on or before July 20, 1984, defendant shall file suggestions in opposition to plaintiff's March 31, 1984 Motion for Summary Judgment in accordance with the requirements of Rule 56 of the Federal Rules of Civil Procedure, including but not limited to the express requirements of Rule 56(e)."

Rule 56(e), to which we directed particular attention, provides that:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

Defendant's suggestions in opposition to plaintiff's motion for summary judgment, timely filed on July 20, 1984, followed the same pattern forecast by the June 4, 1984 joint response of the parties.

Again defendant did not attempt to put in factual dispute any of the paragraphs of plaintiff's May 31, 1984 statement of supported facts. Defendant simply stated that the paragraphs that related to "the legal status of the Kings Professional Basketball Club, Inc., the National Basketball Association and the National Basketball Players Association are not questions of fact, but questions of law." Defendant also suggested that many of plaintiff's paragraphs, which contained particular quotations from various of the exhibits before the Court, were not properly stated because "the documents best speak for themselves." Such statements do not "set forth specific facts showing there is a genuine issue for trial" in regard to those particular paragraphs within the meaning of Rule 56(e).

Defendant did, however, file counter-affidavits in regard to paragraph 27 of plaintiff's statement of supported facts. That paragraph, and paragraph 28 of plaintiff's statement of supported facts related to statements made in a conference between the trial judge and counsel in the case which pends in the Circuit Court of Jackson County, Missouri.

The joint response, as we have noted, stated defendant's contention in its paragraph 6, that the factual data contained in those two paragraphs were "irrelevant and not admissible." We quite agree with defendant's contention and expressly state that our order granting plaintiff's motion for summary judgment does not in any way rest upon paragraphs 27 and 28 of plaintiff's statement of supported facts. In the next part of the memorandum opinion we shall state grounds upon which we do base our order granting plaintiff's motion for summary judgment. We find and conclude that the defendant has not generated any genuine dispute about any of the factual data that will be stated in that part of this memorandum opinion.

IV.

Rule 52 makes clear that "findings of fact and conclusions of law are unnecessary on decisions of motions under ... Rule 56." It has long been our practice, however, to make findings of fact and to state conclusions of law in cases in which motions for summary judgment are granted. That practice is based on our agreement...