QUEEN CITY MAINTENANCE, INC. V. MAINCORE MANAGEMENT, LLC, ET AL.
Filing
53
MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR. on 3/11/2019. Plaintiff's Motion for Summary Judgment or Partial Summary Judgment (Doc. 40 ) is DENIED. FURTHER that the stay of discovery pr eviously entered (Doc. 32 ) is TERMINATED. FURTHER that, within 14 days of the entry of this Memorandum Opinion and Order, the parties shall submit a Supplemental Rule 26(f) Report as set out in the December 13, 2017 Order (Doc. 32 ). THIS COURT FURTHER DIRECTS that in the event the parties are no longer able to agree upon a Rule 26(f) Report, as evidenced by the failure to submit an agreed-upon Supplemental Rule 26(f) Report, the Clerk shall set this matter for an Initial Pretrial Conference. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
QUEEN CITY MAINTENANCE, INC.,
Plaintiff,
v.
MAINCORE MANAGEMENT, LLC,
ACTION TIME USA, INC.,
DANIELA STANISLAWEK PERKINS,
and DANIEL STANISLAWEK,
Defendants.
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1:17CV665
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff, Queen City Maintenance, Inc., has filed a Motion
for Summary Judgment or Partial Summary Judgment pursuant to
Federal Rule of Civil Procedure 56. (Doc. 40.) The motion seeks
summary judgment against Defendants Maincore Management, LLC
(“Maincore”) and Action Time USA, Inc. (“Action Time”). (Id. at
1-2.) Plaintiff has filed a brief in support thereof, (Doc. 41),
and Defendants Maincore and Action Time have filed a response,
(Doc. 47). Plaintiff did not reply, and the matter is now ripe
for ruling. For the following reasons, this court finds that
Plaintiff’s motion should be denied and the matter referred for
a Rule 26(f) conference and discovery.
Plaintiff originally filed its complaint in the Superior
Court of Guilford County, North Carolina. (See Doc. 3.)
Defendant Wal-Mart Stores, Inc. (“Walmart”) removed the case to
this court. (See Doc. 1.) Plaintiff subsequently dismissed its
claims against Walmart with prejudice. (Doc. 12.) The remaining
defendants, Maincore, Action Time, Daniela Stanislawek Perkins,
and Daniel Stanislawek (collectively “Defendants”) filed an
answer. (Doc. 16.) Thereafter, Defendants filed a third-party
complaint, (Doc. 18); that third-party complaint was later
dismissed without prejudice, (Doc. 51).
An Initial Pretrial Conference was previously set, (see
Doc. 17), but continued at the request of the parties, (see,
e.g., Doc. 23). Discovery was ultimately stayed at the parties’
request, (see Doc. 32), pending a ruling upon a forthcoming
motion to dismiss by third-party defendants, (Doc. 33). Because
third-party defendants have been dismissed from this case, (see
Doc. 51), there is no forthcoming ruling on their motion to
dismiss, and the stay is now moot. In the interim between that
stay and that dismissal, and prior to the entry of any discovery
schedule, Plaintiff filed the instant motion for summary
judgment. (Doc. 40.)
Summary judgment is appropriate when the court determines
that there remains “no genuine dispute as to any material fact
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and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). And “the
inferences to be drawn from the underlying facts . . . must be
viewed in the light most favorable to the party opposing the
motion.” United States v. Diebold, Inc., 369 U.S. 654, 655
(1962) (per curiam).
A factual dispute is genuine when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); see also First Nat’l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 289–90 (1968) (stating that a dispute is not
genuine for summary judgment purposes when one party rests
solely on allegations in the pleadings and does not produce any
evidence to refute alternative arguments). This court must look
to substantive law to determine which facts are material —
“[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248.
Plaintiff argues summary judgment is appropriate as to
Maincore and Action Time because the Affidavit of Maya I.
Tsekova, President of Queen City Maintenance, (Doc. 40-1); the
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Verified Complaint, (Doc. 3); and the Answer by Defendants
Maincore and Action Time, (Doc. 16), all establish that these
Defendants are liable to Plaintiff for monies owed for services
rendered by Plaintiff, (see Doc. 41 at 4-5). While the Complaint
and Affidavit of Ms. Tsekova appear to establish liability of
Defendants to Plaintiff, this court does not find that the
Answer admits liability so clearly as Plaintiff contends.
Instead, this court finds that there are issues of fact which
require that this case proceed to discovery. For example,
Defendant Daniel Stanislawek’s Declaration, submitted in
opposition to Plaintiff’s motion, states that Plaintiff’s
invoices are overstated. (Doc. 48 ¶¶ 5-29.) Defendant
Stanislawek further states that he anticipates further
reductions to the amounts allegedly owed based upon continued
investigation and discovery. (Id. ¶ 29.)
This court therefore finds that there does exist a genuine
issue of material fact as to the amounts allegedly due Plaintiff
and, as a result, Plaintiff’s motion for summary judgment should
be denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary
Judgment or Partial Summary Judgment, (Doc. 40), is DENIED.
IT IS FURTHER ORDERED that the stay of discovery previously
entered, (Doc. 32), is TERMINATED.
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IT IS FURTHER ORDERED that, within 14 days of the entry of
this Memorandum Opinion and Order, the parties shall submit a
Supplemental Rule 26(f) Report as set out in the December 13,
2017 Order. (Doc. 32.)
THIS COURT FURTHER DIRECTS that in the event the parties
are no longer able to agree upon a Rule 26(f) Report, as
evidenced by the failure to submit an agreed-upon Supplemental
Rule 26(f) Report, the Clerk shall set this matter for an
Initial Pretrial Conference.
This the 11th day of March, 2019.
____________________________________
United States District Judge
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