Kearney Trust Company v. Taylor et al

Filing 53

ORDERED that Mihailovich, Jr.s Motion for Summary Judgment (Doc. # 39 and Mihailovich, Jr.s Motions to Strike Portions of Taylors and McGiffins Affidavits (Doc. #45) are DENIED. IT IS FURTHER ORDERED that Mihailovich, Jr.s Motion for Leave to Suppl ement Response to Thomas Taylors Untimely Reply is DENIED as MOOT per Mihailovich, Jr.s Notice of Withdraw of Motion for Leave to Supplement Response to Thomas Taylors Untimely Reply (Doc. #52). Signed on 7/25/2012 by District Judge Brian C. Wimes. (Baldwin, Joella)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

KEARNEY TRUST CO.,
Plaintiff,
v.
THOMAS G. TAYLOR, et al.,
Defendants.

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Case No. 4:11-CV-00815-BCW

ORDER
This matter is an interpleader action. Kearney Trust Company initiated the action and
deposited $45,073.50 into the Court’s registry, and the Court discharged Kearney Trust
Company (Doc. #40). Each claimant has the burden of establishing his/her/its right to the
interpleaded funds by a preponderance of the evidence. Wright, Miller & Kane, 7 Fed. Prac. &
Proc. Civ. § 1714 (3d ed.).
Before the Court are Intervener Robert Mihailovich, Jr.’s (“Mihailovich, Jr.”) Motion for
Summary Judgment (Doc. #39) and Mihailovich, Jr.’s Motions to Strike Portions of Taylor’s and
McGiffin’s Affidavits (Doc. #45). The Court being duly advised of the premises, for good cause
shown, and for the following reasons DENIES said Motions.
A motion for summary judgment must begin with a concise statement of uncontroverted
material facts, and each fact must be set forth in a separately numbered paragraph. See Local
Rule 56.1(a). Furthermore, each fact must be supported by a reference or citation to where in the
record the fact is established. See Fed. R. Civ. P. 56(c)(1); Local Rule 56.1(a). Mihailovich,
Jr.’s Motion for Summary Judgment fails to begin with a concise statement of uncontroverted
material facts. Eight facts are set forth in separately numbered paragraphs on the Motion’s ninth
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page, instead of at the beginning. Additionally, each fact lacks a reference or citation to the
record establishing that fact. The sentence “[a]ll of the above are proven by Affidavit by Movant
. . . ” following the numbered facts is an insufficient reference or citation to the record. Thus,
Mihailovich, Jr.’s Motion for Summary Judgment is procedurally improper.
Defendant Thomas C. McGiffin’s (“McGiffin”) opposition and Defendant Thomas G.
Taylor’s (“Taylor”) opposition to the Motion for Summary Judgment are also procedurally
improper. In disputing facts, both oppositions fail to refer or cite to the record pursuant to Fed.
R. Civ. P. 56(c)(1) and Local Rule 56.1(a). Similar to Mihailovich, Jr., McGiffin and Taylor
each rely upon an affidavit to controvert the material facts. Mihailovich, Jr. argues statements in
these affidavits should be stricken because they provide no admissible evidence on the bases of
hearsay, conclusory statements, and lack of personal knowledge. Regardless of whether the
competing affidavits contain admissible evidence and/or create a genuine issue of material fact,
Mihailovich, Jr.’s Motion for Summary Judgment fails to provide the legal basis establishing his
right to the interpleaded funds. The standard for granting a motion for summary judgment is “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) (emphasis added). Even if each
material fact alleged in the Motion is deemed true, Mihailovich, Jr. fails to show why he, as an
individual, is entitled to the interpleaded funds.
IT IS HEREBY ORDERED that Mihailovich, Jr.’s Motion for Summary Judgment (Doc.
#39) and Mihailovich, Jr.’s Motions to Strike Portions of Taylor’s and McGiffin’s Affidavits
(Doc. #45) are DENIED.
IT IS FURTHER ORDERED that Mihailovich, Jr.’s Motion for Leave to Supplement
Response to Thomas Taylor’s Untimely Reply is DENIED as MOOT per Mihailovich, Jr.’s

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Notice of Withdraw of Motion for Leave to Supplement Response to Thomas Taylor’s Untimely
Reply (Doc. #52).
IT IS SO ORDERED.

DATED: July 25, 2012

/s/ Brian C. Wimes
JUDGE BRIAN C. WIMES
UNITED STATES DISTRICT COURT

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