GERMINARO et al v. LAWYERS TITLE INSURANCE CORPORATION et al

Filing 176

MEMORANDUM OPINION AND ORDER indicating that upon consideration of the Plaintiffs' Upon consideration of the Motion for Redaction or Correction of the Record 166 , and for the reasons more fully stated within, said Motion is granted, in part, a nd denied, in part, to wit: the Motion for Redaction or Correction of the Record 166 is denied, to the extent that Plaintiffs seek to redact or amend Attorney Calderas' argument as memorialized in the official hearing transcript 165 , and gra nted, inasmuch as Plaintiffs request that the summary judgment ruling be based upon the evidence of record, to the extent same is put before the Court in the form of affidavits, depositions, admissions, and/or interrogatories. Signed by Judge Nora Barry Fischer on 10/13/16. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH J. GERMINARO and
GABRIELLA P. GERMINARO,
Plaintiffs,
v.
FIDELITY NATIONAL TITLE
INSURANCE COMPANY and
COMMONWEALTH LAND TITLE
INSURANCE COMPANY,
Defendants.

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2:14-cv-01202-NBF
District Judge Nora Barry Fischer

MEMORANDUM OPINION AND ORDER
Upon consideration of the Motion for Redaction or Correction of the Record (“Motion”)
(Docket No. 166) filed by Joseph J. Germinaro and Gabriella P. Germinaro (“Plaintiffs”), the
Response (Docket No. 171) filed by Fidelity National Title Insurance Company and
Commonwealth Land Title Insurance Company (“Defendants”), and the parties’ respective
briefings (Docket Nos. 168, 174 – 75), the Court will DENY said Motion, in part, and GRANT,
in part.
I. MEMORANDUM
On July 12, 2016, the parties appeared before this Court for hearing and oral argument on
Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 119) and Defendants’ Motion for
Summary Judgment (Docket No. 124). The parties did not thereafter request supplemental
briefing on their motions. (Docket No. 163). The official transcript of the July 12 proceedings
was filed on September 6, 2016. (Docket No. 165). On September 13, 2016, Plaintiffs filed the
present Motion. Plaintiffs ask the Court to redact, or grant leave to amend, the following portion
of the transcript:

And I think that it would be completely unreasonable, and there’s certainly no
evidence in the record otherwise that you could sue Lawyers Title and
Commonwealth alleging a Ponzi scheme that requires adjudicating LES’s liability
for fraud.
(Docket No. 165 at 59:6 – 10). Plaintiffs claim that this statement by Defendants’ counsel during
oral argument was not an accurate statement of the facts and should not be allowed to remain on
the record due to its potential impact upon disposition of the summary judgment motions
currently before the Court. (Docket No. 166 at 3 – 4).
To this end, when ruling on a motion for summary judgment, a district court is charged
with determining whether the moving party has established “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Heffernan v. City of
Paterson, 777 F.3d 147, 151 (3d Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). A genuine issue of
material fact is one that could affect the outcome of litigation. Willis v. UPMC Children’s Hosp.
of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). The initial burden is on the moving party to adduce evidence illustrating a
lack of genuine issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 – 24 (1986)). Once the moving party satisfies
its burden, the non-moving party must present sufficient evidence of a genuine issue, in rebuttal.
Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475
U.S. at 587).
However, the Third Circuit Court of Appeals has held that “‘[l]egal memoranda and oral
argument are not evidence and cannot by themselves create a factual dispute sufficient to defeat
a summary judgment motion.’” Versarge v. Twp. of Clinton N.J., 984 F.2d 1359, 1370 (3d Cir.
1993) (quoting Jersey Cen. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109 – 10 (3d
Cir. 1985)). Mere “characterizations” of record evidence do not, alone, have probative value.
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Yan Yan v. Penn State Univ., 529 F.App’x 167, 170 (3d Cir. 2013) (citing Jersey Cen. Power &
Light Co., 772 F.2d at 1109 – 10). Any assertions made by the parties at summary judgment
must ultimately be supported by facts. Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201
(3d Cir. 2006) (citing Jersey Cen. Power & Light Co., 772 F.2d at 1109 – 10). The parties must
resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate the existence
of a genuine issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d
Cir. 2013) (citing Celotex Corp., 477 U.S. at 324).
Presently, Plaintiffs wish to remove or alter a portion of Attorney Calderas’ oral
argument, as memorialized in the official transcript of the July 12, 2016, hearing, to conform
with what Plaintiffs believe is an accurate characterization of the evidence of record. 1 The Court
will not permit such action. As noted, above, Attorney Calderas’ argument is not evidence, but
simply Defendants’ characterization of the evidence – or lack thereof – on the record. On its
own, the argument has no probative value. The Court will look to the evidence of record and
construe it – and all reasonable inferences that may be drawn therefrom – in the light most
favorable to the non-moving party. Fuentes, 795 F.3d at 416 (citing United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962)).

Thus, to the extent that Attorney Calderas’ argument is

unsupported by the evidence, it will be disregarded. See Williams v. Wells Fargo Bank, -F.App’x --, 2016 WL 4207395 at *2 (3d Cir. Aug. 10, 2016) (citing Jones v. United Parcel Serv.,
214 F.3d 402, 407 (3d Cir. 2000)) (Noting that parties cannot rely on unsupported allegations.).

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Plaintiffs have not demonstrated a need for redaction pursuant to Local Rule 5.2(D) (“Redaction of
Personal Identifiers”). Neither have they indicated that the transcript did not accurately memorialize Attorney
Calderas’ oral argument.

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II. ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that the Motion for Redaction or
Correction of the Record [166] is denied, to the extent that Plaintiffs seek to redact or amend
Attorney Calderas’ argument as memorialized in the official hearing transcript [165], and
granted, inasmuch as Plaintiffs request that the summary judgment ruling be based upon the
evidence of record, to the extent same is put before the Court in the form of affidavits,
depositions, admissions, and/or interrogatories.

s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated: October 13, 2016.
cc/ecf: All counsel of record

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