Se Prop. Holdings, LLC v. Sandy Creek Ii, LLC, Civil Action No. 12–00303–KD–M.

• Decision Date: 21 June 2013
• Docket Number: Civil Action No. 12–00303–KD–M.
• Citation: 954 F.Supp.2d 1322
• Parties: SE PROPERTY HOLDINGS, LLC, Plaintiff, v. SANDY CREEK II, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

954 F.Supp.2d 1322

SE PROPERTY HOLDINGS, LLC, Plaintiff,
v.
SANDY CREEK II, LLC, et al., Defendants.

Civil Action No. 12–00303–KD–M.

United States District Court,
S.D. Alabama,
Southern Division.

June 21, 2013.

[954 F.Supp.2d 1326]

Frederick George Helmsing, Jr., James S. Harvey, P. Russel Myles, Richard M. Gaal, Samuel Fraser Reid, III, McDowell Knight Roedder & Sledge, L.L.C., Mobile, AL, for Plaintiff.

James L. Day, Von G. Memory, Memory & Day, Robert Emmett Poundstone, IV, Bradley, Arant, Boult, Cummings, LLP, Jonathan Corley Hill, Montgomery, AL, William M. Lyon, Jr., McFadden, Lyon & Rouse, L.L.C., Mobile, AL, Sam David Knight, Joseph Brannon Maner, Gordon, Dana, Still, Knight & Gilmore, LLC, Birmingham, AL, for Defendants.

ORDER
KRISTI K. DuBOSE, District Judge.

This action is before the Court on the Motions for Summary Judgment and supporting documents filed pursuant to Rule 56 of the Federal Rules of Civil Procedure by Plaintiff/Counterclaim Defendant SE Property Holdings, LLC (“SEPH”) (Docs. 63–65), Defendants Lester Boihem (“Boihem”) and Carroll Castille (“Castille”) (Docs. 86–88), Defendants/Counterclaim Plaintiffs Paul Peed and Raymond Peed (collectively, “the Peeds”) (Docs. 90–92), and Defendants Nanni Pidikiti (“Pidikiti”) and Coast Investment Properties, LLC (“CIP”) (Doc. 93), and the various responses (Docs. 83–85, 89, 103–105), replies (Docs. 98–100, 106–108), and sur-replies (Docs. 111–113) to same.¹ All of these motions are now ripe for adjudication. Upon consideration, and for the reasons set forth herein, the Court finds that SEPH's motion for summary judgment is due to be GRANTED except as to Pidikiti and CIP, for whom it is due to be DENIED, and that the aforementioned Defendants' motions for summary judgment are due to be DENIED.

I. Procedural History

On May 3, 2012, SEPH initiated this action by filing a Complaint (Doc. 1) against Defendants Sandy Creek II, LLC (“SC II”), George W. Skipper III, Boihem, Castille, CIP, Pidikiti, the Peeds, and the Rookery, LLC (“the Rookery”). The Complaint alleged breach of promissory notes by SC II (identified as “Borrower” in the Complaint) (Count 1) and breach of guarantee agreements by all other Defendants (identified as “Guarantors” in the Complaint”) (Count 2). SEPH also demanded

[954 F.Supp.2d 1327]

that the Court order an accounting and inspection of certain financial transactions by the Defendants (Count 3).² The Defendants filed their various Answers (Docs. 31–35, 37–38), with the Peeds also asserting counterclaims against SEPH for declaratory judgment ³ and promissory and equitable estoppel (the estoppel counterclaims were subsequently dismissed (Doc. 53)).

On January 10, 2013, SEPH filed a Motion for Summary Judgment against all Defendants except for George Skipper (Doc. 63), moving for summary judgment in its favor on its breach-of-contract claims against those Defendants.⁴ All of those Defendants except SC II (hereinafter, the “Guarantor Defendants”) filed responses in opposition (Docs. 83–85, 89), to which SEPH has replied (Docs. 98–100). All Guarantor Defendants except the Rookery have also filed their own motions (Docs. 86–88, 90–93) moving for partial summary judgment in their favor on SEPH's claims against them. SEPH has filed responses in opposition (Docs. 103–105) to each of those motions, the Guarantor Defendant movants have filed replies to those responses (Docs. 106–108), and SEPH has filed sur-replies to those replies (Docs. 111–113).

SEPH requests that the motion for partial summary judgment filed by Pidikiti and CIP (Doc. 93) be “denied as untimely.” (Doc. 105 at 1 n. 1). As SEPH correctly points out, the Court's Rule 16(b) Scheduling Order states that “[m]otions for summary judgment and any other dispositive motions ... are to be filed ... in no event later than April 19, 2013.” (Doc. 44 at 5, ¶ 11). The Court never extended this deadline. Pidikiti and CIP filed their motion on April 22, 2013, without requesting permission to file it out of time or explaining the late filing. Pidikiti and CIP's reply (Doc. 102) in support of their motion, itself filed a day late and after their motion had been taken under submission, similarly offers no reason for the untimely filing of their motion (nor indeed for that of the reply itself). Upon consideration, the Court finds that Pidikiti and CIP's motion is due to be STRICKEN as untimely filed, except to the extent that arguments timely filed by the other Guarantor Defendants are applicable to Pidikiti and CIP.

II. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

[954 F.Supp.2d 1328]

Rule 56(c) governs procedures and provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed.R.Civ.P. 56(c).

A party seeking summary judgment bears the 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 the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The mere existence of a factual dispute will not automatically necessitate denial; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004).

If a non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In reviewing whether a non-moving party has met its burden, the Court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor. Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998–99 (11th Cir.1992) (internal citations and quotations omitted).

In this action, both Plaintiff SEPH and the Guarantor Defendants (except the Rookery) have moved for summary judgment as to SEPH's claims. “ ‘Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed ... Nonetheless, cross-motions may be probative of the non-existence of a factual dispute when ... they demonstrate a basic agreement concerning what legal theories and material facts are dispositive.’ ” United States v. Oakley, 744 F.2d 1553, 1555–56 (11th Cir.1984) (quoting

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Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th Cir.1975)) (per curiam) (second ellipsis added). See also Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) (“[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.”).

Defendant SC II failed to file any opposition to SEPH's motion for summary judgment. As such, the Court construes the motion as unopposed with respect to SC II. Specifically, Local Rule 7.2(b) for the Southern District of Alabama requires a party responding to a Rule 56 motion to specify the disputed facts, if any, and that failure to do so will be interpreted as an admission that there is no material factual dispute:

Within thirty (30) days ... [of the filing of a motion for summary judgment] or as may be otherwise ordered, the party or parties in opposition shall file a brief in opposition thereto, and, if it is contended that there are material factual disputes, shall point out the disputed facts appropriately referenced to the supporting document or documents filed in the action. Failure to do so will be considered an admission that no material factual dispute exists; provided, that nothing in this rule shall be construed to require the non-movant to respond in actions where the movant has not borne its burden of establishing that there is no dispute as to any material fact.

S.D. Ala. L.R. 7.2(b). Because SC II has failed to point out any disputed facts due to a lack of response to the pending motion, its “[f]ailure to do so will be considered an admission that no material factual dispute exists.” L.R. 7.2(b). See, e.g., Patton v. City of Hapeville, Ga., 162 Fed.Appx. 895, 896 (11th Cir.2006)⁵ (providing that “the district court properly held that...