Riberglass, Inc. v. Techni-Glass Industries, Inc.
| Decision Date | 02 March 1987 |
| Docket Number | TECHNI-GLASS,No. 86-7057,86-7057 |
| Citation | 811 F.2d 565 |
| Parties | RIBERGLASS, INC., a corporation, Plaintiff-Appellee, v.INDUSTRIES, INC., an Alabama Corporation; Lonnie Flippo, Defendants, Howard E. Morris, Defendant-Appellant. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Northern District of Alabama.
ON PETITION FOR REHEARING
(Opinion Dec. 4, 1986, 11 Cir., 804 F.2d 1577).
Before GODBOLD, HILL and ANDERSON, Circuit Judges.
The petition for rehearing in this case is GRANTED. The previous opinion is hereby vacated, and the following is substituted in its place:
Riberglass, Inc. (Riberglass) instituted this suit seeking recovery of indebtedness owed on an open account existing between it and Techni-Glass Industries, Inc. (Techni-Glass). Lonnie Flippo and appellant Howard E. Morris were included as codefendants with Techni-Glass as alleged guarantors of Techni-Glass' indebtedness. Following an extensive pretrial conference and in light of the failure by Techni-Glass and Flippo to respond to requests for admissions submitted by Riberglass, the district court determined that Techni-Glass and Flippo were deemed to have admitted all material facts and that no material issue of fact existed with respect to Riberglass' claim against Techni-Glass and Flippo. It therefore granted summary judgment against those two defendants. That order is not before us.
Riberglass then filed a motion for summary judgment against appellant Morris, which the district court granted. We disagree with the district court's rationale for granting summary judgment against Morris, and reverse.
In considering plaintiff's motion for summary judgment against Morris, the district court had before it the complaint, Morris' answer, plaintiff's request for admissions, and Morris' response to the request for admissions. Riberglass apparently based its claim for summary judgment against Morris solely upon the fact that summary judgment had previously been granted in its favor against Morris' two codefendants, whose failure to respond to requests for admissions resulted in their being deemed to have admitted controlling facts. To a great extent, the district court accepted this argument and also based its summary judgment order on the fact that it had already granted summary judgment against Morris' codefendants. 1
The district court had granted summary judgment against Morris' codefendants based upon their deemed admissions resulting from their failure to respond to various requests for admissions. Morris himself, however, responded to plaintiff's requests for admissions directed to him. Clearly, the deemed admissions of his codefendants cannot bind Morris where he actually responded to plaintiff's requests in a timely and legally sufficient manner. See United States v. Wheeler, 161 F.Supp. 193, 197 (W.D.Ark.1958) (...
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