Tilley v. Anixter Inc.

• Decision Date: 01 November 2005
• Docket Number: No. CIV.A. 3:02-cv-1312(JCH).,CIV.A. 3:02-cv-1312(JCH).
• Citation: 332 B.R. 501
• Court: U.S. Bankruptcy Court — District of Connecticut
• Parties: Susan C. TILLEY, Plaintiff, v. ANIXTER INCORPORATED et al., Defendants.

Page 501

332 B.R. 501

Susan C. TILLEY, Plaintiff, v. ANIXTER INCORPORATED et al., Defendants.

No. CIV.A. 3:02-cv-1312(JCH).

United States Bankruptcy Court, D. Connecticut.

November 1, 2005.

Robert B. Muchinsky, Hartford, CT, for Plaintiff.

James Ross Smart, Steven David Ecker, Cowdery, Ecker & Murphy, Hartford, CT, William M. Bloss, Jacobs, Grudberg, Belt & Dow, P.C., New Haven, CT, for Defendants.

RULING RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT. NO. 67]; PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 66]; and MOTION FOR JOINDER [DKT. NO. 69]

HALL, District Judge.

I. INTRODUCTION¹

The plaintiff, Susan C. Tilley, filed the instant action against defendants Anixter Incorporated, Pacer/Anixter, Inc., and David G. Tilley. Compl. [Dkt. No. 1]. In response to the plaintiff's claims, the corporate defendants counterclaimed for breach of contract. Corporate Defs.' Amended Answer and Counterclaim [Dkt. No. 39].

This court granted defendants' motion to dismiss two of the plaintiff's claims but denied their motion to dismiss the plaintiff's third claim. Ruling [Dkt. No. 23]. This third claim, a tort action for intentional infliction of emotional distress, also survived defendants' subsequent Motion for Judgment on the Pleadings. See Ruling [Dkt. No. 38]. The corporate defendants now move for summary judgment on this claim. Corporate Defs.' Mot. Summ. J. [Dkt. No. 67]. Mr. Tilley moves to join their motion with the exception of their argument that the release the plaintiff signed with the corporate defendants bars her suit. Def. Tilley's Mot. Joinder [Dkt. No. 69]. Susan Tilley now moves for summary judgment on the defendants' counterclaim. Plf.'s Mot. Summ. J. [Dkt. No. 66].

II. STANDARD OF REVIEW

In a motion for summary judgment, the burden lies on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); SCS Communications, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir.2004). The moving party may satisfy this burden "by showing — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.2002) (per curiam) (internal quotation marks and citations omitted); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995).

A court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact...." Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir.1993) (internal quotation marks and citation omitted). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505), cert. denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992). After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 523 (internal citation omitted). Thus, "`[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper.'" Id. (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991)); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992) ("Viewing the evidence in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is inappropriate.")." `If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'" Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)).

When a motion for summary judgment is supported by sworn affidavits or other documentary evidence permitted by Rule 56, the nonmoving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleading." Fed.R.Civ.P. 56(e); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). Rather, "the [nonmoving] party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial" in order to avoid summary judgment. Id. "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (internal quotations and citations omitted). Similarly, a party may not rely on conclusory statements or an argument that the affidavits in support of the motion for summary judgment are not credible. Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993) (holding that). A self-serving affidavit that reiterates the conclusory allegations of the complaint in affidavit form is insufficient to preclude summary judgment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

III. FACTS²

A. Divorce Proceeding and June 1998 Action

Susan and David Tilley were divorced in Connecticut Superior Court on October 18, 1994. At the time of their divorce, Mr. Tilley worked for Pacer Electronics, Inc. ("Pacer"). Mr. Tilley's girlfriend (now wife), Terri Tilley, worked at the same company. During the divorce proceeding, Mr. Tilley and Michael Rosa, the president and CEO of Pacer, both testified about Mr. Tilley's compensation at Pacer. In its final judgment of dissolution of the marriage, the Superior Court ordered Mr. Tilley to pay plaintiff $100 per week in alimony plus $260 per week in child support. In December 1994, the Superior Court ordered Pacer to garnish Mr. Tilley's wages in the amount of $360 per week to pay the aforementioned support order.

In June 1998, shortly before the planned acquisition of Pacer by Anixter Inc. ("Anixter"), the plaintiff brought a state court action against Pacer, Anixter, Michael Rosa, and Summit Partners, Inc., a corporation that controlled Pacer's assets. Her complaint alleged that Pacer and Rosa had, for eighty-one consecutive weeks, sent her support checks of $311.46, rather than the $360 per week that the Superior Court had previously ordered. Verified Complaint and Temporary Injunction paperwork, Susan Tilley v. Pacer Electronics, et. al., Conn. Sup.Ct., 6/8/98, Def. Ex. 29 [Dkt. No. 68-4]. Attorney Beth Rittenband³ represented the plaintiff in the June 1998 action. Attorney Rittenband testified at her deposition that the plaintiff's "belief that ... Michael Rosa specifically was giving — putting David's commissions into Theresa's paychecks so that Sue wouldn't get the proper amount of child support taken out of the check" was "the basis for" the June 1998 complaint. Rittenband/Deluco Dep. 26 [Dkt. No. 68-9]. Attorney Rittenband subsequently referred to this belief as "one of the issues" that the June 1998 complaint was about. Id. However, the June 1998 complaint does not state this allegation, but merely alleges a failure to pay the child support at the level ordered by the court. The plaintiff disputes Attorney Rittenband's deposition testimony regarding diversion of income. S. Tilley Aff. ¶ 11, attached to Plf.'s Mem. Law Opp. Defs.' Mot. Summ. J. [Dkt. No. 74] [hereinafter S.Tilley Aff. of 6/6/05].

The parties settled the June 1998 matter, and the plaintiff received $10,000. In consideration for this sum, she signed a release, stating that she

has remised, released and forever discharged, and by these Presents does remise release and forever discharge the said Releasees [Pacer, Rosa, Summit, and Anixter] of and from all debts, obligations, reckonings, promises, covenants, agreements, contracts, endorsements, bonds specialties, controversies, suits, actions, causes of actions, trespasses, variances, judgments, extents, executions, damages, claims or demands, in law or in equity, which against the said Releasees the Releasor ever had, now has or hereafter can, shall, or may have, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the date of these Presents.

More particularly all claims or demands in law or equity arising or asserted in or in connection with an action pending in the Superior Court of the State of Connecticut for the Judicial District of Hartford/New Britain at Hartford, Docket No. CV-98-580678S.

Release, 6/17/98, Def. Ex. 30 [Dkt. No. 68-11]. The release stated that it did not apply to claims the plaintiff may have had directly against Mr. Tilley. Id. In deposition testimony, the plaintiff agreed that the Release provided for the release of Pacer and Anixter from all claims that she had against them at the time she signed it. S. Tilley Dep. Oct. 6, 2004 at 111, Def. Ex. 30 [Dkt. No. 68-6].

B. April 1999 Motions

In April 1999, Attorney Rittenband filed two motions in Connecticut Superior Court on the plaintiff's behalf: a motion to hold Mr. Tilley in contempt of the court's previous orders and a motion for modification of the...