Greenlee v. Sandy's Towing and Recovery Inc. et al

Filing 64

DECISION AND ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT - Because Plaintiffs' Motion for Summary Judgment (ECF No. 57) is not properly supported under Fed. R. Civ. P. 56(c), it is DENIED without consideration of any of the othe r issues raised in the Motion. The Court notes that six weeks remain until the summary judgment filing deadline of December 15, 2016. Signed by Magistrate Judge Michael R. Merz on 11/2/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KIEL GREENLEE, et al.,
Plaintiffs,
-

vs

:

-

Case No. 3:16-cv-064
Magistrate Judge Michael R. Merz

SANDY’S TOWING AND RECOVERY,
INC., et al.,
Defendants.

:

DECISION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT

This case is before the Court on Plaintiffs’ Motion for Summary Judgment (ECF No. 57).
Defendants oppose the Motion (ECF No. 60) and Plaintiffs have filed a Reply in support (ECF
No. 63).
Fed. R. Civ. P. 56(c) provides:
(c) Procedures.
(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
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(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.
(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.

No supporting evidentiary materials were filed with the summary judgment motion,
including any materials in support of Plaintiffs’ claimed damages. Instead, Plaintiffs rely on
findings made by the Court in deciding their motion for pre-judgment replevin (Motion, ECF No.
57, PageID 644-45, citing ECF No. 33, PageID 378-79).
Defendants object to the evidentiary basis of the Motion (ECF No. 60, PageID 680).
Plaintiffs make no response to this point other than to repeat, verbatim, the quotation from the
replevin decision which is already quoted in their Motion (ECF No. 57, PageID 644-45).
Findings of fact by a judge in support of denial of an interlocutory motion are not listed
in Fed. R. Civ. P. 56(c) as materials to be considered on a summary judgment motion. Although
the Rule permits consideration of “other materials,” the Court has not been able to locate any
authority which sanctions reference to such interlocutory findings. See Wright, Miller & Kane,
Federal Practice and Procedure: Civil § 2724 (2016).
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Defendants in this case demanded a trial by jury (ECF Nos. 9, 10, 11, 12, 13). The case
was accordingly set at the preliminary pretrial conference for a jury trial (Scheduling Order, ECF
No. 32, ¶ 13, PageID 375). To hold Defendants bound by interlocutory factual findings by the
Court would tread heavily on their jury trial right. Even absent the jury trial right, Defendants
had no notice that anything other than pre-judgment replevin was at issue in the hearing on that
Motion. In fairness, they have a right to insist, as they have, that any motion for summary
judgment by Plaintiffs be supported as required by Fed. R. Civ. P. 56(c).
Because the instant Motion is not properly supported under Fed. R. Civ. P. 56(c), it is
DENIED without consideration of any of the other issues raised in the Motion. The Court notes
that six weeks remain until the summary judgment filing deadline of December 15, 2016.

November 2, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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