Synovus Bank v. Bokke IV, LLC et al

Filing 139

ROSEBORO ORDER re 123 MOTION for Summary Judgment , ( Responses due by 12/18/2013). Signed by District Judge Martin Reidinger on 12/03/13. (Pro se litigant served by US Mail.)(emw)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11-cv-00071-MR-DLH

SYNOVUS BANK,

)
)
Plaintiff,
)
)
vs.
)
)
BOKKE IV L.L.C., JAMES ELEY,
)
LAURA KELLY, JOHN KELLY, SR.,
)
MARLON NIEMAND, MARK P. KELLY, )
JOHN G. RECKENBEIL, and SIMON )
MANNION,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on its own motion following the
filing of Plaintiff’s Motion for Summary Judgment [Doc. 123].
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), the Court advises Defendant John G. Reckenbeil, who is proceeding
pro se, of the heavy burden that he carries in responding to Plaintiff’s
Motion for Summary Judgment.
Summary judgment shall be granted “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). A factual dispute is
genuine “if 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). A fact is material only if it might affect the outcome of the
suit under governing law. Id.
The movant has the “initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving
party. The nonmoving party “must set forth specific facts showing that
there is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may
not rely upon mere allegations or denials of allegations in his pleadings to
defeat a motion for summary judgment. Id. at 324, 106 S.Ct. 2548.

The

nonmoving party must present sufficient evidence from which “a
reasonable jury could return a verdict for the nonmoving party.” Anderson,
477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d
810, 818 (4th Cir. 1995).
The law further provides that if a party fails to “properly address
another party’s assertion of fact” the court may “consider the fact
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undisputed for purposes of the motion” or “grant summary judgment if the
motion and supporting materials – including the facts considered
undisputed – show that the movant is entitled to it[.]” Fed. R. Civ. P. 56(e).
In other words, the Defendant is required to present evidence to show that
a fact is disputed.
If Defendant has any evidence to offer to show that there is a genuine
issue of fact, he must now present it to this Court in a form which would
otherwise be admissible at a trial. This means that it must be in the form of
affidavits or unsworn declarations. Federal Rule of Civil Procedure 56(c)
provides that:
(1) Supporting Factual Positions. A party asserting that a fact
cannot be or is genuinely disputed must support the assertion
by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to support
or dispute a fact cannot be presented in a form that would be
admissible in evidence.
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(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used
to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on
the matters stated.
An affidavit is a written statement under oath; that is, a statement
prepared in writing and sworn before a notary public. Howard Acquisitions,
LLC v. Giannasca New Orleans, LLC, No. WDQ-09-2651, 2010 WL
3834917, at *3 (D. Md. Sept. 28, 2010).

An unsworn declaration or

statement, made and signed under the penalty of perjury, also may be
submitted. See 28 U.S.C. § 1746.
Affidavits or unsworn declarations must be presented by the
Defendant to this Court within fourteen (14) days of the entry of this Order.
Pursuant to Rule 56(e), Defendant’s failure to respond may result in the
granting of the Plaintiff’s Motion for Summary Judgment and the entry
of Judgment against the Defendant.
IT IS, THEREFORE, ORDERED that on or before fourteen (14) days
from the entry of this Order, Defendant John G. Reckenbeil may file a
response, including any evidence, to the Plaintiff’s Motion for Summary
Judgment. Defendant’s failure to respond may result in the Plaintiff
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being granted the relief it seeks by way of summary judgment, that is,
the entry of Judgment against the Defendant.
IT IS SO ORDERED.

Signed: December 3, 2013

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