Collins v. Neals et al
Filing
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OPINION AND ORDER granting Walsh Construction Company's 27 Motion for Summary Judgment and 29 Motion for Sanctions. Walsh Construction shall have 14 days from the date of this order to file its affidavit of fees and costs incurred in seeking summary judgment. Any objections thereto shall be filed within 7 days after service of the fee request and supporting documentation. Signed by Judge Robert L Miller, Jr on 8/1/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MICHAEL COLLINS,
Plaintiff
v.
STANLEY NEALS, ABF FREIGHT SYSTEM,
INC., ROADSAFE TRAFFIC SYSTEMS, INC.,
and WALSH CONSTRUCTION COMPANY,
Defendants
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) CASE NO. 2:10-CV-459RM
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OPINION and ORDER
Michael Collins sued several defendants seeking damages for injuries he
sustained as a result of a vehicular collision. Defendant Walsh Construction
Company’s motion for summary judgment and motion for sanctions under FED.
R. CIV. P. 11. currently pend before the court. For the reasons that follow, the
court grants both motions.
FACTS
On September 25, 2008, plaintiff Michael Collins was involved in a vehicular
accident at or near a road construction site on Interstate 80 in Lake Station,
Indiana. Mr. Collins sued the other driver, Stanley Neals, ABF Freight System, Inc.
(Mr. Neals’ employer), Roadsafe Traffic Systems, Inc., and Walsh Construction
Company to recover damages for injuries he sustained as a result of the accident.
Mr. Collins alleges that Walsh Construction was the general contractor for
the construction project; that it owed him a duty to maintain the site in a safe
manner, to warn of any hazardous and/or defective conditions, to take
appropriate steps to remove any hazardous and/or defective conditions, and to
hire contractors who would perform those duties in a “non-negligent manner”;
that it breached those duties; and that he suffered physical injuries, emotional
trauma, loss of life’s enjoyments, lost wages and a loss of future earning capacity
as a direct and proximate result of that breach by Walsh Construction. Walsh
Construction denied the allegations in its answer, notified Mr. Collins’ attorney,
Steven Etzler, on December 10, 2010 that it wasn’t involved in any work in the
area in September 2008 and that Superior Construction was performing that
phase of the construction project, provided counsel with an affidavit to that effect,
and demanded dismissal from the lawsuit. Walsh Construction reiterated its
request by letter dated December 21, 2010, and advised Mr. Etzler that it would
seek attorney’s fees “based on plaintiff’s continued pursuit of frivolous, groundless
and unreasonable litigation,” if Mr. Collins didn’t dismiss Walsh Construction by
January 4, 2011.
In a follow-up December 27 email, Walsh Construction provided Mr. Etzler
with materials from the Indiana Department of Transportation’s website that
showed that three contracts were awarded to rebuild the interchange of the
Borman Expressway (I-80/94) and I-65: the first was awarded to Walsh
Construction in 2007, but didn’t relate to the area where the accident occurred,
the second was awarded to Superior Construction/E&B Paving of Gary in 2008
and was in the area of the accident, and construction under the third, awarded
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to Walsh Construction, didn’t begin until 2009, after the collision. When Mr.
Collins took no action to dismiss Walsh Construction or amend his complaint,
Walsh Construction moved for summary judgment with supporting affidavits, and
moved for sanctions under FED. R. CIV. P. 11(b)(3). Mr. Collins responded to the
sanctions motion but not to the summary judgment motion.
SUMMARY JUDGMENT MOTION
Summary judgment is appropriate “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). Once a summary judgment motion is made
and properly supported, the opposing party must show that a genuine issue of
fact remains for trial 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 [by the moving
party] do not establish the absence...of a genuine dispute....
FED. R. CIV. P. 56(c)(1)(2010); N.D. IND. L.R. 56.1(a). A motion for summary
judgment is the “‘put up or shut up’ moment in a lawsuit,” and “requires the
responding party to come forward with the evidence that it has.” Eberts v.
Goderstad, 569 F.3d 757, 767 (7th Cir. 2009) (quoting Koszola v. Bd. of Educ. of
the City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004). If the movant doesn’t do
so, the court may “consider the fact undisputed for purposes of the motion,” and
“grant summary judgment if the motion and supporting materials–including the
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facts considered undisputed– show that the movant is entitled to it.”1 FED R. CIV.
P. 56(e); see also N.D. IND. L.R. 56.1(b); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.
2003); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (failure to respond
“constitutes an admission...that there are no disputed issues of genuine fact
warranting a trial”).
Walsh Construction contends that is wasn’t responsible for or performing
any construction work at the accident scene in September 2008, and so owed no
duty to Mr. Collins, as evidenced by the affidavit of Walsh Construction senior
project manager Marc Arena, and the Indiana Officer’s Standard Crash Report
prepared by the investigating officer at the scene, Indiana State Police Officer
Brian McCall.
In his affidavit, Mr. Arena attests that as a senior project manager for Walsh
Construction he was familiar with the work Walsh was performing on I-80 in
September 2008; that Walsh Construction wasn’t responsible for or performing
any construction work in the vicinity of I-80 East at the 12.4 mile marker (the
scene of the accident) on September 25, 2008; and that Superior Construction
was performing the construction work at that location.
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The court may give the opposing party an opportunity to properly support or
address another party’s assertion of fact, if it shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its position. FED. R. CIV. P.
56(d) and (e)(1). Mr. Collins hasn’t asked the court to defer ruling on the motion for
summary judgment, or requested additional time to obtain affidavits or declarations or
to take discovery.
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Walsh Construction also submitted a copy of the crash report prepared by
Officer McCall, and Officer McCall’s affidavit attesting to the truth of the matters
contained in the report. The crash report indicates that Mr. Collins was traveling
eastbound in the left lane on I-80 at mile marker 12.4, when his lane ended due
to construction, that Mr. Neals was eastbound in the center lane, and that Mr.
Collins collided with Mr. Neals’s vehicle when Mr. Collins tried to change lanes.
Officer McCall concluded that Mr. Collins’s improper lane usage was the accident’s
primary cause.
Mr. Etzler received electronic notice of Walsh Construction’s motion for
summary judgment and related motion for sanctions on April 26, 2011. Under
Local Rule 56.1, the plaintiff had 28 days from the date of service to file his
response to the summary judgment motion and any affidavits or other
documentary material controverting the movant’s position. While Mr. Etzler
responded to the motion for sanctions, contending that he reasonably believed
Walsh Construction was responsible for the work at the scene of the accident at
the time the complaint was filed, he didn’t file a response to the summary
judgment motion, offer any evidence to controvert Walsh Construction’s position,
or seek an extension of time within which to do so. The court accordingly deems
the facts asserted by Walsh Construction, and supported by the affidavits of Mr.
Arena and Officer McCall, to be undisputed for purposes of the summary
judgment motion, and concludes that, based on that record, Walsh Construction
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is entitled to judgment as a matter of law. FED R. CIV. P. 56(e); N.D. IND. L.R.
56.1(b).
MOTION FOR SANCTIONS
Walsh Construction seeks reasonable attorney’s fees and costs incurred in
seeking summary judgment as a sanction under FED. R. CIV. P. 11(c), for the
violation of Rule 11(b)(3) and Mr. Collins’s failure to dismiss the claim against
Walsh Construction when presented with uncontroverted evidence that Walsh
Construction wasn’t the general contractor at the scene of the accident and owed
Mr. Collins no duty.
Rule 11(b) requires an attorney presenting a pleading to the court to certify
that:
to the best of [his or her] knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances...(3) the factual
contentions have evidentiary support, or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery....
In deciding whether a party’s inquiry into the factual bases of its claim was
reasonable, the court considers factors including:
whether the signer of the documents had sufficient time for
investigation; the extent to which the attorney had to rely on his or
her client for the factual foundation underlying the pleading, motion
or other paper; whether the case was accepted from another attorney;
the complexity of the facts and the attorney’s ability to do a sufficient
pre-filing investigation; and whether discovery would have been
beneficial to the development of the underlying facts.
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Divane v. Krull Elec. Co., Inc., 200 F.3d 1020, 1028 (7th Cir. 1999) (quoting
Brown v. Federation of State Medical Bds. of the United States, 830 F.2d 1429,
1435 (7th Cir. 1987)).
Plaintiff’s counsel maintains that he made reasonable inquiry into the
identity of the general contractor at the construction site before filing the
complaint, that the claim against Walsh Construction was “based upon factual
contentions that had evidentiary support at the time the claims were asserted,”
and that he was justified in not dismissing Walsh “because of a valid and
sufficient factual basis that Walsh was the general contractor responsible for the
construction site.” But he doesn’t identify what the factual basis was or what
evidence supported those facts.
Mr. Etzler submitted an affidavit in opposition to the motion for sanctions
in which he attests that he hired a private investigator to establish the identity of
the general contractor at the construction site; that “[u]pon reasonable
investigation and with information obtained from trusted sources, the private
investigator provided information that indicated Walsh Construction Company
was the general contractor;” that he asked the investigator “to verify the accuracy
of the evidence with his sources” after receiving evidence in December 2010
indicating that Walsh Construction wasn’t the general contractor; that the
investigator provided “information” on January 7, 2011, indicating that Walsh
Construction was responsible for a contract near the area in question; and that,
“despite numerous follow ups,” the investigator “had not been able to verify the
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accuracy of the evidence” as of April 26, 2011 (the filing of the motion for
summary judgment). Mr. Etzler doesn’t identify the private investigator, the
“trusted sources,” the information those sources provided, or provide any factual
basis or evidentiary support for his assertion that Walsh Construction was
responsible for the construction site at the scene of the accident.
When the claim’s lack of factual foundation became apparent, Walsh
Construction asked that it be dismissed, and notified Mr. Collins that it intended
to seek sanctions if it was not. Mr. Etzler didn’t respond, identify the factual basis
of the claim against Walsh Construction, ask for additional time to investigate,
seek discovery, withdraw the claim, or amend the complaint. To obtain the relief
to which it was entitled, Walsh Construction had to incur the cost of filing a
motion for summary judgment — a motion Mr. Collins made no attempt to
oppose.
The court can’t find a reasonable factual basis for the claim against Walsh
Construction on the basis of the record before it, and can’t agree with Mr. Etzler’s
conclusory assertion that his inquiry was reasonable or that his failure to
withdraw or amend the motion was justified. Under the circumstances, an award
of attorney’s fees and costs incurred by Walsh Construction in seeking summary
judgment is an appropriate sanction for Mr. Etzler’s violation of Rule 11(b)(3) and
failure to dismiss the claim against Walsh Construction. FED. R. CIV. P. 11(c)(4);
see also Divane v. Krull Elec. Co., Inc., 200 F.3d at 1028-30 (affirming the
imposition of reasonable attorneys’ fees as a sanction for failing to correct or
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withdraw a counterclaim that had no factual bases); City of Yonkers v. Otis
Elevator Company, 106 F.R.D. 524, (S.D.N.Y. 1985)(imposing sanctions where
there was no factual basis for claim and plaintiffs unjustifiably refused to
dismiss).
CONCLUSIONS
For the foregoing reasons, Walsh Construction Company’s motion for
summary judgment [Doc. No. 27] and its motion for sanctions [Doc. No. 29] are
GRANTED. Walsh Construction shall have 14 days from the date of this order to
file its affidavit of fees and costs incurred in seeking summary judgment. Any
objections thereto shall be filed within 7 days after service of the fee request and
supporting documentation.
SO ORDERED.
ENTERED:
August 1, 2011
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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