U.S. Transp. Inc. v. Torley
| Decision Date | 23 August 2011 |
| Docket Number | CIVIL ACTION No. 08-1403-MLB |
| Parties | U.S. TRANSPORT, INC., et al., Plaintiffs, v. RANDOLPH TORLEY and R A TRANSPORT, LLC., Defendants. |
| Court | U.S. District Court — District of Kansas |
This case comes before the court on defendants' motion for summary judgment (Doc. 68) and plaintiffs' motion for summary judgment on defendants' counterclaims (Doc. 66). The motions have been fully briefed and are ripe for decision. (Docs. 67, 69, 74, 77, 79, 81, 83, 84). Defendants' motion is granted and plaintiffs' motion is granted in part and denied in part for the reasons set forth herein.
The usual and primary purpose of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Federal Rule of Civil Procedure 56(c) directs the entry of summary judgment in favor of a party who "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." An issue is "genuine" if sufficient evidence exists on each side "so that a rational trier of fact could resolve the issue either way" and "[a]n issue is 'material' if under the substantive law it is essential to the proper disposition of theclaim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citations omitted); see also Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler). The mere existence of some factual dispute will not defeat an otherwise properly supported motion for summary judgment because the factual dispute must be material. See Renfro v. City of Emporia, 948 F.2d 1529, 1533 (10th Cir. 1991).
A defendant initially must show both an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Adler, 144 F.3d at 670. Because a plaintiff bears the burden of proof at trial, a defendant need not "support [its] motion with affidavits or other similar materials negating [a plaintiff's]" claims or defenses. Celotex, 477 U.S. at 323 (emphasis in original). Rather, a defendant can satisfy its obligation simply by pointing out the absence of evidence on an essential element of a plaintiff's claim. See Adler, 144 F.3d at 671 (citing Celotex, 477 U.S. at 325).
If the defendant properly supports its motion, the burden then shifts to the plaintiff, who may not rest upon the mere allegation or denials of its pleading, but must set forth specific facts showing that there is a genuine issue for trial. See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197-98 (10th Cir. 2000). In setting forward these specific facts, the plaintiff must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Adler, 144 F.3d at 671. If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir.1994). A plaintiff "cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). Put simply, the plaintiff must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Certain local rules further govern the presentation of facts and evidence. Local Rule 56.1 requires the movant to set forth a concise statement of material facts. D. Kan. Rule 56.1. Each fact must appear in a separately numbered paragraph and each paragraph must refer with particularity to the portion of the record upon which the defendant relies. See id. The opposing memorandum must contain a similar statement of facts. The plaintiff must number each fact in dispute, refer with particularity to those portions of the record upon which he or she relies and, if applicable, state the number of the defendant's fact that he or she disputes. The court may, but is not obligated to, search for and consider evidence in the record that would rebut the defendant's evidence, but that the plaintiff has failed to cite. See Mitchell, 218 F.3d at 1199; Adler, 144 F.3d at 672. All material facts set forth in the statement of the defendant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the plaintiff. See id.; Gullickson v. Sw. Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir. 1996) ().
The parties need not present evidence in a form that would be admissible at trial, but the content or substance of the evidence mustbe admissible. See Thomas v. Int'l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995) (internal quotations and citations omitted). For example, hearsay testimony that would be inadmissible at trial may not be included. See Adams, 233 F.3d at 1246. Similarly, the court will disregard conclusory statements and statements not based on personal knowledge. See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1382 (10th Cir. 1994) (regarding conclusory statements); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (requiring personal knowledge). Finally, the court may disregard facts supported only by references to documents unless the parties have stipulated to the admissibility of the documents or the documents have been authenticated by and attached to an affidavit meeting the requirements of Rule 56(e). See FED. R. CIV. P. 56(e); D. Kan. Rule 56.1; 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2722 (2d ed. 1983) (footnotes omitted).
In the end, when confronted with a fully briefed motion for summary judgment, the court must 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 (1986). If sufficient evidence exists on which a trier of fact could reasonably find for the plaintiff, summary judgment is inappropriate. See Prenalta Corp. v. Colo. Interstate Gas Co., 944 F.2d 677, 684 (10th Cir. 1991).
Statements made in either parties' memoranda that are not supported with citations to the record have not been included in thecourt's recitation of the facts. See D. Kan. Local R. 7.6 (); 56.1(a) (); 56.1(b) ().
In addition, statements made in the parties' memoranda that are supported only by reference to an unauthenticated exhibit have not been included in the recitation of facts. See D. Kan. Local R. 56.1(d) ().
As a result of the court's standing order, the argument of the parties that is included within the parties' factual statements has been wholly ignored. See Revised Standing Order, available at http://www.ksd.circ10.dcn/chambers/showjudge.php?juegeid=13 (click on "Standing Order"), at ¶ 1.E. ( ).
Finally, except as noted, the court has disregarded the identical affidavits of Mike and Steve Nelligan which are almost entirely conclusory, lacking in personal knowledge and unsupported personal opinion. See paragraphs 2, 5-18, 20, 21 and 23 of each affidavit.
Plaintiffs and defendant RA Transport are trucking companies. In 1999, defendant Randolph Torley entered into a contract of employment with plaintiff DW Transport.1 Torley's job title was Vice President and General Manager. Torley's salary was $82,000 but he did not receive his full salary amount during the years he was employed by plaintiffs. In October 2004, Torley executed a Stock Purchase Agreement in which Torley agreed to sell his 11,000 shares of company stock for $22,330. Torley, however, did not immediately receive payment for selling the shares. In December 2005, Steven Nelligan, CEO of plaintiff U.S. Transport, sent Torley a letter in which he stated that Torley would be required to sign a Settlement and General Release Agreement prior to payment being issued. Torley did execute the release on May 10, 2006, after being told that he would not receive a payment under the stock purchase agreement unless he did so.
On October 31, 2006, Torley ended his employment with plaintiffs and began operating a trucking company out of his home. Torley purchased a truck and began contacting potential clients. Torley contracted with Tyson Fresh Meats, a client of plaintiffs, to deliver a load on November 30, 2006. On December 7, Torley contacted Feed Mercantile, Inc., one of plaintiffs' clients, in order to obtain a contract for a load. During his initial weeks in business, Torley contacted Danny Starr, who was employed as head dispatcher for plaintiffs, to request contact information for plaintiffs' clients, although no one can recall which client information was sought byTorley. Starr gave Torley that information and also gave out that information to several other truckers who were in competition with plaintiffs. Starr's practice was to give out the name of the individual to contact but not the actual...
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