United States of America v. Elbert Building Co., Inc.

Filing 13

Memorandum Opinion and Order granting plaintiff's Motion for summary judgment (Related Doc # 11 ) against Defendant, Elbert Building Co., and Orders Defendant to pay Plaintiff the amount of $59,085.63. Judge Donald C. Nugent (C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
ELBERT BUILDING CO.,
Defendant.

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CASE NO.

1: 11 CV 1148

JUDGE DONALD C. NUGENT

MEMORANDUM OPINION
AND ORDER

This matter comes before the Court upon Plaintiff, The United States of America’s
Motion for Summary Judgment (ECF #11). Defendant has not filed any opposition to the
Government’s motion. The Court has reviewed the entire record before it and, applying the
appropriate standard of review, finds that the Government’s motion should be GRANTED.
Summary judgment is appropriate when the court is satisfied “that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” FED. R. CIV. P. 56(c). The burden of showing the absence of any such “genuine issue”
rests with the moving party:
[A] party seeking summary judgment always bears 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 affidavits, if any,’ which it believes demonstrates the absence of a
genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is
“material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine”
requires consideration of the applicable evidentiary standards. The court will view the summary
judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover. The non-moving party may not simply rely on its pleadings, but must “produce evidence
that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t of
Transp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is
a genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as
an automatic grant of summary judgment, where otherwise appropriate. Id.
In this case, the Plaintiff has provided evidence sufficient to establish and prove the
claims it has alleged. Defendant has failed to provide any response, let alone any evidence that
would create a genuine issue of material fact for trial. The evidence provided shows that the
parties had entered into an Informal Settlement Agreement to resolve various citations issued to
the Defendant by the United States Department of Labor, Occupational Safety and Health
Administration. The Defendant did not timely pay the compromised penalty amount, and
consequently is liable for the original proposed penalty of $43,000.00, plus administrative fees,
interest, and penalties incurred thereafter. The total amount now owed is $59,085.63.
Therefore, pursuant to Fed. R. Civ. P. 56(e), the Court grants summary judgment in favor of the

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Plaintiff, the United States of America, and against Defendant, Elbert Building Co., and Orders
Defendant to pay Plaintiff the amount of $59,085.63.

IT IS SO ORDERED.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED: January 3, 2012

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