Garnett v. Guarantee Electrical Company et al

Filing 81

ORDER GRANTING Defendant Ambassador Steel Fabrication, LLC's Motion for Summary Judgment [Doc. 63], Defendant Vee-Jay Cement Contracting Company, Inc.'s Motion for Summary Judgment [Doc. 65], Defendant Bunge-SCF Grain, LLC's Motion for Summary Judgment [Doc. 70], and Defendant Vee-Jay Cement Contracting Company, Inc.'s Motion to Strike [Doc. 74]. The Clerk of Court is directed to STRIKE Defendant Paynecrest Electric, Inc.'s Memorandum in Opposition [Doc. 73]. Signed by Judge Staci M. Yandle on 09/15/15. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DANIEL GARNETT

)
)
Plaintiff,
)
)
vs.
)
)
GUARANTEE ELECTRICAL COMPANY )
et. al.,
)
)
Defendants.
)

Case No. 13-CV-1326-SMY-DGW

MEMORANDUM AND ORDER
YANDLE, District Judge:
Before the Court are Defendant Ambassador Steel Fabrications, LLC’s (“Ambassador
Steel”) Motion for Summary Judgment (Doc. 63), Defendant Vee-Jay Cement Contracting
Company, Inc.’s (“Vee-Jay”) Motion for Summary Judgment (Doc. 65), and Defendant BungeSCF Grain, LLC’s (“BSG”) Motion for Summary Judgment (Doc. 70). Although Plaintiff failed
to file responses to the motions, Defendant Paynecrest Electric, Inc. (“Paynecrest”) filed a
Memorandum of Law in Opposition to Vee-Jay’s Motion for Summary Judgment (Doc. 73).
Vee-Jay has moved to strike Paynecrest’s Memorandum on the grounds that Paynecrest lacks
standing to oppose a co-defendant’s motion for summary judgment (Doc. 74). The Court agrees.
Summary judgment may be sought by a party claiming relief or by a party against whom
relief is sought. Fed.R.Civ.P. 56(a) and (b). Here, in the absence of a cross-claim, Paynecrest
lacks standing to oppose Vee-Jay’s Motion. See Rosenbaum v. Freight, Lime & Sand Hauling,
Inc., 2012 WL 4832248, at *2 (N.D. Ind. Oct. 10, 2012) (collecting cases finding that a codefendant lacks standing to oppose another co-defendant’s motion for summary judgment).

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Accordingly, Defendant Vee-Jay’s Motion to Strike is GRANTED and, for the foregoing
reasons, Defendants’ motions for summary judgment are GRANTED.
Plaintiff Daniel Garnett alleges that he tripped and fell while working at a construction
site on the premises of Defendant BSG on December 1, 2011 (Doc. 2-2). At the time of the
incident, Plaintiff was employed by the United Ironworkers (Doc. 67-1, pp. 23-30). The project
included the construction of an elevator grain terminal (Doc. 2-2). The general contractor for the
project was Defendant Alberici Construction, Inc. (“Alberici”) (Doc. 64). Alberici subcontracted
with Defendant Vee-Jay for the concrete work (Id.). Vee-Jay in turn subcontracted with
Defendant Ambassador Steel to provide and install steel rebar connections with the concrete
work (Id.). Ambassador Steel then hired United Ironworkers to install the rebar (Id.). Alberici
also hired Defendant Paynecrest to install the electrical system for the site (Id.).
Plaintiff clalims that he sustained injury after tripping and falling over an electrical stud
or grounding rod on the jobsite (see Doc. 2-2). In his Second Amended Complaint, Plaintiff
alleges identical allegations of negligence against each Defendant including:
Failure to properly maintain the work area in a safe condition; failure to maintain
electrical studs in a safe condition; failure to inspect the work area in order to
make sure it was in safe condition; allowing the installed electrical studs to create
a dangerous condition; and failure to properly maintain the electrical studs
although it knew or should have known, in the exercise of ordinary care, that
unmarked electrical studs created a dangerous and unsafe condition for people in
the work area (Doc. 2-2).
On May 29, 2015, Ambassador Steel filed its Motion for Summary Judgment asserting
that it had no role in the installation of electrical grounding rods or the electrical system on the
construction site where Plaintiff was allegedly injured. Ambassador Steel further contends that it
did not control the manner or location in which Plaintiff was working and had no role in the
safety planning or maintenance of the construction site.

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On June 9, 2015, Vee-Jay filed its Motion for Summary Judgment in which it asserts it
did not play any role in the design, installation or placement of the electrical studs or grounding
rods at issue in this lawsuit nor did it have any responsibility for the placement of the rods. VeeJay further contends that Plaintiff did not work with any Vee-Jay employees, take directions
from any Vee-Jay employees, and that it did not provide any supervision or direction over
Plaintiff.
On June 24, 2015, BSG filed its Motion for Summary Judgment. Like Defendants
Ambassador Steel and Vee-Jay, BSG contends that it did not control the premises in question,
had no role in the installation of electrical ground rods or the electrical system on the premises,
had no involvement in or control over Plaintiff’s work or the location in which Plaintiff was
working when he was allegedly injured, and had no role in or control over the safety planning or
maintenance of the premises.
To date, Plaintiff has failed to file responses to the pending motions for summary
judgment. By so doing, Plaintiff has forgone his opportunity to avoid dismissal of his claims as
to Defendants Ambassador Steel, Vee-Jay and BSG. Federal Rule of Civil Procedure 56(e)
provides:
When a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading;
rather, its response must—by allegations or denials in its own pleading; rather, its
response must—by affidavits or as otherwise provided in this rule—set out
specific facts showing a genuine issue for trial. If the opposing party does not so
respond, summary judgment should, if appropriate, be entered against that party.
Accordingly, a non-moving party may not rest on his pleadings but must set forth specific facts
showing there is a genuine issue for trial. Heft v. Moore, 351 F.3d 278, 283 (7th Cir.2003); see
also Winters v. Fru–Con, Inc., 498 F.3d 734, 744 (7th Cir.2007) (noting, “the district court is not
required to scour the record in search of evidence to defeat the motion; the nonmoving party
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must identify with reasonable particularity the evidence upon which the party relies”).
Consequently, when a non-moving party fails to respond to a motion for summary judgment, a
court has no choice but to deem the moving party's factual assertions as true and grant summary
judgment in its favor. Heft, 351 F.3d at 283 (7th Cir.2003) (holding summary judgment is proper
when the plaintiff's case consists of factually unsupported claims); Thurman v. Village of
Homewood, 446 F.3d 682, 687 (7th Cir.2006) (affirming district court's decision to grant
summary judgment when the opposing party failed to provide the court with evidence); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 320 (1986) (noting “a complete failure of proof
concerning an essential element of the nonmoving party's case necessarily renders all other facts
immaterial.

The moving party is entitled to a judgment as a matter of law because the

nonmoving party has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.”).

Additionally, Local Rule 7.1(c) provides, in

relevant part, that the “[f]ailure to timely file an answering brief to a motion may, in the court's
discretion, be considered an admission of the merits of the motion.” SDIL–LR 7.1(c); Arndt v.
Bartley, 2009 WL 3172784, at *2 (S.D. Ill. Sept. 22, 2009).
Consequently, having fully considered Defendants’ arguments, the Court deems
Plaintiff’s failure to respond as an admission of the merits of the motions and GRANTS the
Motions for Summary Judgment filed by Defendants Ambassador Steel Fabrications, LLC’s
(Doc. 63), Vee-Jay Cement Contracting Company, Inc. (Doc. 65), and Defendant Bunge-SCF
Grain, LLC (Doc. 70).

Accordingly, this action is DISMISSED with prejudice as to

Defendants Ambassador Steel Fabrications, LLC’s, Vee-Jay Cement Contracting Company, Inc.,
and Bunge-SCF Grain, LLC. The Clerk of Court is DIRECTED to enter judgment in favor of
those Defendants and against Plaintiff at the close of the case.

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IT IS SO ORDERED.
DATED: September 15, 2015
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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