COTTON v. EVANSTON INSURANCE COMPANY
Filing
26
MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 12/21/11, that Defendant's Motion for Summary Judgment (Docket Entry 22 ) is GRANTED. (Law, Trina)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BRUCE COTTON,
Plaintiff,
v.
EVANSTON INSURANCE COMPANY,
Defendant.
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1:09CV504
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Auld, Magistrate Judge
The instant case comes before the Court on Defendant’s Motion
for Summary Judgment (Docket Entry 22).
For the reasons that
follow, the Court will grant Defendant’s motion.1
Background
Plaintiff’s claims arise from Defendant’s refusal to pay the
proceeds on a fire insurance policy covering Plaintiff’s property
located in Durham County, North Carolina.
(See Docket Entry 4.)
Plaintiff, with the assistance of counsel, filed a Complaint
in the General Court of Justice Superior Court Division of Durham
County, North Carolina, alleging “Breach of Contract” (id., ¶¶ 1318), “Unfair and Deceptive Trade Practices” (id., ¶¶ 19-26), and
“any and all causes of action available to [him] against Defendant
1
The parties consented to disposition of this case pursuant to 28 U.S.C.
§ 636(c). (See Docket Entry 9, ¶ 5(c).)
arising out of the same transactions” (id., ¶¶ 27-28).
subsequently
filed
a
Notice
of
Removal
(Docket
Defendant
Entry
1),
petitioning this Court for removal on the grounds of diversity of
citizenship (id., ¶ 5).
After removal, the parties filed a Joint Rule 26(f) Report
(Docket Entry 9) laying out an agreed-upon case management plan and
consenting to jurisdiction by a magistrate judge (see id., ¶ 5(c)).
Within four months of the parties’ Joint Rule 26(f) Report,
Plaintiff’s counsel filed a Motion to Withdraw (Docket Entry 14)
(subsequently granted by this Court (see Docket Entry 15)) noting
that “Plaintiff ha[d] not complied with the terms of the Contract
for Representation entered into between the attorney and the
client” and “the best interests of the Plaintiff dictate that
[counsel] withdraw as attorney of record for the [Plaintiff] in
this [action]” (Docket Entry 14, ¶¶ 1-2).
In light of this withdrawal, the Court noticed a hearing “to
inquire as to plaintiff’s pro se status” (Docket Entry 16 at 1),
said Notice indicating specifically that “plaintiff is required to
appear” (id.).
Despite this language, Plaintiff failed to appear
at the hearing as required.
(See Docket Entry dated Feb. 17,
2010.)
The Court later sent Plaintiff notice of a scheduled Initial
Pretrial Conference (Docket Entry 19), this time indicating that
“Plaintiff Bruce Cotton is cautioned that he must appear at the
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hearing or suffer dismissal of his case.”
(Docket Entry 19 at 1.)
Plaintiff appeared pro se and made a motion to continue the hearing
(See Docket Entry dated May 19,
in order to hire an attorney.
2010.)
Pretrial
The Court granted said motion, continuing the Initial
Conference
for
more
than
two
months.
(See
id.)
Thereafter, Plaintiff failed to appear at the rescheduled Initial
Pretrial Conference, sending instead a friend who indicated that
Plaintiff was unable to attend due to an illness in the family,
though apparently providing no explanation for Plaintiff’s failure
to retain counsel.
Prior
to
the
(See Docket Entry dated June 30, 2010.)
rescheduled
Initial
Pretrial
Conference,
Defendant had filed a Notice of Requests for Admission Being Deemed
Admitted by Plaintiff (Docket Entry 20), indicating that Plaintiff
had failed to respond to Defendant’s Requests for Admissions more
than 62 days after said requests were originally served.
In that
filing, Defendant referenced the relevant provision of the Federal
Rules of Civil Procedure, which states: “A matter is admitted
unless, within 30 days after being served, the party to whom the
request is directed serves on the requesting party a written answer
or objection addressed to the matter and signed by the party or its
attorney,” Fed. R. Civ. P. 36(a)(3).
(Id., ¶ 5.)
In light of
Plaintiff’s default admissions, and after Plaintiff failed to
appear at the rescheduled Initial Pretrial Conference, Defendant
filed the instant motion for summary judgment, moving the Court to
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find for Defendant “on the grounds that there is no genuine issue
of material fact and [] Plaintiff’s claims should be dismissed as
a matter of law” (Docket Entry 22 at 1).
The Clerk mailed Plaintiff a letter explaining that he had
“the right to file a 20-page response in opposition to [Defendant’s
instant motion] . . . accompanied by affidavits setting out [his]
version of any relevant disputed material facts or [by] . . . other
responsive
material.”
(Docket
Entry
24
at
1.)
The
letter
specifically cautioned Plaintiff that “unless you file a response
in opposition to the defendant’s motion, it is likely your case
will be dismissed or summary judgment granted in favor of the
defendant.”
(Id.)
Plaintiff has not responded to the instant Motion.
(See
Docket Entries dated July 21, 2010, to present.)
Discussion
Plaintiff’s case warrants a finding of summary judgment for
Defendant both because of Plaintiff’s failure to respond to the
instant motion for summary judgment and because, in light of
Plaintiff’s earlier failure to respond to Defendant’s Requests for
Admissions, no genuine issue of material fact exists and Defendant
has shown entitlement to judgment as a matter of law under Fed. R.
Civ. P. 56.
Under this Court’s Local Rules, failure to respond to a motion
generally warrants granting of the relief requested.
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See M.D.N.C.
R. 7.3(k).
There is no reason to depart from the general rule in
this case.
The Court specifically warned Plaintiff that his
failure to respond to Defendant’s instant Motion would likely lead
to a dismissal or a finding of summary judgment for Defendant.
(See
Docket
Entry
24
at
1.)
Furthermore,
Plaintiff
has
consistently failed to take the necessary steps to prosecute his
action and has offered no explanation to the Court for those
shortcomings.
Additionally, under Fed. R. Civ. P. 36(a)(3), Plaintiff’s
failure to respond to Defendant’s Requests for Admissions in a
timely fashion has resulted in the de facto admission of the facts
contained therein.
In this case, pursuant to Fed. R. Civ. P.
36(b), said admissions “conclusively establish” that Plaintiff,
inter alia, failed to formally initiate a claim with Defendant (see
Docket Entry 23-3 at 10-11) and that the fire which destroyed the
property in question was “not caused by an accident” and was
“intentionally
set”
by
an
individual
or
individuals
“at
[Plaintiff’s] direction or with [Plaintiff’s] consent” (id. at 1213).
It is also conclusively established that, “[t]he allegations
in [Plaintiff’s] [C]omplaint, under the heading ‘Second Cause of
Action’ relating to [Plaintiff’s] claim for unfair or deceptive
trade acts or practices, are groundless in that Defendant has not
engaged in any unfair or deceptive act or practice in regards to
[Plaintiff’s] claim.”
(Id. at 12.)
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In light of these admissions,
the Court finds no genuine issue of material fact with respect to
Plaintiff’s claims for breach of contract and unfair and deceptive
trade practices and will enter judgment as a matter of law for
Defendant under Fed. R. Civ. P. 56.
Conclusion
In this case, no reason exists to depart from the general
rule that a party’s failure to respond to a motion warrants
granting of the relief requested by movant – in this instance
summary
judgment.
Plaintiff’s
failure
See
to
M.D.N.C.
respond
R.
to
7.3(k).
Defendant’s
Furthermore,
Requests
for
Admissions conclusively establishes the facts of the case in favor
of Defendant under Fed. R. Civ. P. 36 and, therefore, there is no
genuine issue of material fact and Defendant is entitled to
judgment as a matter of law.
See Fed. R. Civ. P. 56(a).
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment (Docket Entry 22) is GRANTED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 21, 2011
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