Hammel et al v. American Credit of Covington, Inc. et al

Filing 49

ORDER AND REASONS granting 46 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 12/7/2011. (tsf, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MIGNONNE HAMMEL, ET AL

CIVIL ACTION

VERSUS

NO. 10-3379

AMERICAN CREDIT OF COVINGTON, INC.,
ET AL

SECTION “F”

ORDER & REASONS
Before the Court is Defendant Jaybar, LLC’s motion for
summary judgment on the issues of successor liability and
liability as a single business enterprise.

For the reasons that

follow, Jaybar’s motion is GRANTED.
I. Background
Douglas and Mignonne Hammel, the plaintiffs, purchased a
Certificate of Indebtedness for $100,000 through a series of
securities transactions involving the defendants American Credit
of Covington, Inc., Chaucer Financial Services of Hammond, Inc.,
and William Chaucer.

Chaucer and his wife Cheryl, also a

defendant, pled guilty to criminal charges, and the defendants
soon defaulted on payment on the Certificate.

The plaintiffs

sued, claiming that the Chaucers commingled money among and
between their personal accounts and the various business entities
which they controlled and acted fraudulently.

Jaybar, an alleged

successor-in-interest, has been tarred by plaintiffs with the
same brush.
Plaintiffs’ complaint alleges claims under Louisiana law for
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civil fraud, negligent and intentional conversion of plaintiffs’
assets and negligent or intentional theft by fraud, violations of
unnamed statutes governing interstate commerce, and a RICO claim.
Jaybar previously moved to dismiss plaintiffs' RICO claim which
this Court granted in a written opinion.
Jaybar now moves for summary judgment, arguing that it is
not a successor in interest to, and cannot be considered a single
business enterprise with the Chaucer Entities.
II. Analysis
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.

See Matsushita Elec.

Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine

issue of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See id.

Therefore, "[i]f the evidence is merely

colorable, or is not significantly probative," summary judgment
is appropriate.

Id. at 249-50 (citations omitted).

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Summary

judgment is also proper if the party opposing the motion fails to
establish an essential element of his case.
Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex Corp. v.

In this regard, the non-

moving party must do more than simply deny the allegations raised
by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents do not qualify as competent opposing evidence.
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549
(5th Cir. 1987).

Finally, in evaluating the summary judgment

motion, the Court must read the facts in the light most favorable
to the non-moving party.

Anderson, 477 U.S. at 255.

Summary judgment is appropriate in this case because the
plaintiffs have failed to establish that genuine issues of
material fact exist.

Plaintiffs’ memorandum in opposition does

little more than pose hypothetical scenarios and questions that
they speculate might have a bearing on the issue of successor
liability.

As a justification for their weak responses,

plaintiffs complain that they have not yet received pertinent
discovery from Jaybar.

They note that they received “grossly

inadequate” responses from the defendant following their first
discovery request, and that they submitted a second discovery
request the same day Jaybar filed its motion for summary

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judgment.

Plaintiffs limp suggestion is that had they received

discovery on these questions, they would now be able to show that
genuine issues of material fact exist as to whether Jaybar is in
fact a successor in interest to the Chaucer Entities.

But they

have done remarkably nothing to justify their complaint.
According to the scheduling order in this case, discovery
must be complete 28 days prior to the date of the pre-trial
conference, which is January 5, 2012.
cut-off is December 7, 2011.

Accordingly, the discovery

The record is clear: plaintiffs

have failed to move to compel or to extend discovery.

In fact,

no real activity is reflected in the record for this case between
April 25, 2011 (when the scheduling order was entered), and
November 22, 2011 (when Jaybar filed its motion for summary
judgment).
Accordingly, IT IS ORDERED: the defendant’s motion for
summary judgment is GRANTED.
New Orleans, Louisiana, December 7, 2011

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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