CITY OF ATLANTIC CITY v. ZEMURRAY STREET CAPITAL, LLC et al

Filing 145

OPINION. Signed by Judge Robert B. Kugler on 4/25/2017. (TH, )

NOT FOR PUBLICATION

(Doc. No. 109)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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CITY OF ATLANTIC CITY,
Plaintiff,
v.
ZEMURRAY STREET CAPITAL, LLC,
et al.,
Defendants.

Civil. No 14-5169 (RBK/AMD)
OPINION

KUGLER, United States District Judge:
The City of Atlantic City (“Plaintiff”) brings claims for breach of contract, fraud,
conversion, veil piercing, fraudulent transfer, and fraudulent concealment against Defendants
Zemurray Street Capital, LLC (“ZMC”), W. Wesley Drummon (“Drummon”), Tennessee
Business & Industrial Development Corporation (“TN BIDCO”), Gary A. Lax, Lantana Family
Trust I, Taipan Holdings, LLC, and a number of John Doe Defendants and ABC Corporations.
This matter comes before the Court upon Defendants ZMC and Drummon’s Motion for
Summary Judgment (Doc. No. 109). For the following reasons, Defendants’ motion is DENIED.

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I. FACTUAL BACKGROUND1
From the outset, the Court notes that Defendants’ brief and attempt at a Statement of
Material Facts are almost completely devoid of citations to affidavits, depositions, etc. in support
of the motion. In fact, the only document (other than the Second Amended Complaint) cited in
support of Defendants’ motion for summary judgment is the Memorandum of Understanding
executed between Plaintiff and ZMC on May 31, 2013. See Defendants’ Summary Judgment
Brief (“Defs.’ Br.”) (Doc. No. 109-1). The Memorandum of Understanding (signed on behalf of
ZMC by Defendant Drummon) lays out Plaintiff’s desire to establish a “Loan Fund” that ZMC
would use to give specified loans. Defs.’ Br., Ex. A. This case arises from Defendants’ alleged
failure to abide by the terms of this Memorandum of Understanding.
The Court observes that Plaintiff originally filed a state court action in Atlantic County
Superior Court on July 15, 2014, which Defendants removed to this Court on August 19, 2014.
Notice of Removal (Doc. No. 1). Plaintiff filed an Amended Complaint on September 22, 2015
(Doc. No. 48) and a Second Amended Complaint on June 24, 2016 (Doc. No. 93). Defendants
filed the instant motion on October 31, 2016.
II. STANDARD
The court should grant a motion for summary judgment when the moving party “shows
that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict

1. The Court notes that Defendants’ counsel has opted to disregard Local Rule 56.1 and
submitted an unlabeled statement of material facts within the body of their Motion for Summary
Judgment. The Court also observes that Plaintiff’s responsive Statement of Material Facts is
numbered, but the numbered paragraphs do not appear to respond to any specific paragraph in
Defendants’ statement.
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for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide
issues of fact. Id. at 248. Because fact and credibility determinations are for the jury, the nonmoving party’s evidence is to be believed and ambiguities construed in her favor. Id. at 255.
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The nonmoving party must
at least present probative evidence from which jury might return a verdict in his favor. Id. at 257.
Furthermore, the nonmoving may not simply allege facts, but instead must “identify those facts
of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J.
v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002). The movant is entitled to summary
judgment where the non-moving party fails to “make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. DISCUSSION
As the Court has noted above, Defendants’ motion for summary judgment is deficient.
The motion does not include a proper statement of material facts, as required by Local Civil Rule
56.1(a), which provides:
On motions for summary judgment, the movant shall furnish a statement which
sets forth material facts as to which there does not exist a genuine issue, in
separately numbered paragraphs citing to the affidavits and other documents
submitted in support of the motion. A motion for summary judgment
unaccompanied by a statement of material facts not in dispute shall be dismissed.
. . . Each statement of material facts shall be a separate document (not part of a
brief) and shall not contain legal argument or conclusions of law.

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L. Civ. R. 56.1(a) (emphasis added). The only factual document submitted in support of
Defendants’ motion is a copy of the parties’ 2013 Memorandum of Understanding, which is, by
itself, insufficient for the Court to adequately make any determination about the facts of this case
and whether there is a material dispute regarding any of those facts. As such, Defendants’
“undisputed statement of material facts” cannot be viewed as a Rule 56.1 statement.
This Court has explained that the failure to file an undisputed statement of material facts
is not to be taken lightly:
A movant’s statement of facts and a nonmovant’s related response serve a vital
purpose, in that they assist the Court in identifying whether material facts are truly
in dispute. See Am. Plaza, LLC v. Marbo Cross Shop, LLC, No. 08–5963, 2010
WL 455349, at *2 (D.N.J. Feb. 3, 2010). Local Civil Rule 56.1(a) thus puts the
onus on the parties, rather than the Court, to find evidence of record supporting
their respective arguments. See Baker v. Hartford Life Ins. Co., No. 08–6382,
2010 WL 2179150, at *2 n.1 (D.N.J. May 28, 2010) (“It is not the Court’s
responsibility to comb the record on behalf of Plaintiff’s counsel.”), aff’d, 440
Fed. Appx. 66 (3d Cir. 2011); N.J. Auto. Ins. Plan v. Sciarra, 103 F. Supp. 2d
388, 408 (D.N.J. 1998) (“[I]t is the responsibility of each party to support its own
contentions with a proper basis in the record of the case.”). “Given the vital
purpose that such rules serve, litigants ignore them at their peril.” McCann [v.
Unum Provident,] 921 F. Supp. 2d 353, 358 (D.N.J. 2013) (quoting Cabán
Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007)).
Collick v. Weeks Marine, Inc., No. 08-5120, 2013 WL 6070035, at *2 (D.N.J. Nov. 18, 2013).
Accordingly, the Court can dismiss Defendants’ motion solely for their failure to include a
statement of undisputed material facts along with their moving brief. See Serfess v. Equifax
Credit Info. Servs., LLC, No. 13-0406, 2015 WL 5123735, at *2 (D.N.J. Sept. 1, 2015) (denying
motion for failure to include a statement of undisputed material facts). The Court notes that the
Third Circuit has sanctioned the practice of excusing a party’s strict compliance with the Local
Rules where the court is willing to draw out the facts from the party’s briefing and evidentiary
submissions instead. See Boswell v. Eoon, 452 F. App’x 107, 111-12 (3d Cir. 2011) (affirming
relaxation of rule where nonmoving party failed to file responsive statement). Unlike instances
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when this Court has excused strict compliance with the Local Rules, Defendants’ brief is devoid
of citations to the record other than the Memorandum of Understanding. As stated above, “[i]t is
not the Court’s responsibility to comb the record on behalf of” the parties. Baker, 2010 WL
2179150, at *2 n.1. Since neither Defendants nor Plaintiff provide meaningful factual statements
with citations to the record in the moving papers, the Court declines to comb the record on their
behalf. Accordingly, Defendants’ motion for summary judgment will be denied.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is DENIED.

Dated: 04/25/2017

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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