Voeltz v. Bridge Charleston Investments E LLC et al

Filing 109

ORDER AND OPINION GRANTING 94 Defendant Folly's Best Rentals Inc and Folly's Best Inc's Motion for Summary Judgment. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 9/26/2018.(sshe, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Corinne Voeltz,
Plaintiff,
V.

Bridge Charleston Investments E, LLC,
et al.
Defendants.
Bridge Charleston Investments E, LLC,
et al.,
Third-Party Plaintiffs,
V.

Waupaca Elevator Company, Inc.,
et al.
Third-Party Defendants.

Civil Action No. 2:16-cv-2971-RMG

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ORDER AND OPINION

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This matter comes before the Court on Defendant Folly's Best Rentals, Inc. and Folly's
Best, Inc. (collectively "Defendants") motion for summary judgment (Dkt. No. 94). For the
reasons explained herein, the Court grants Defendants' motion.

I.

Background
Plaintiff Corinne Voeltz alleges that on or about April 4, 2015, she rented a condominium

at 113 East Arctic Avenue, Unit C in Folly Beach, South Carolina (the "property"). (Dkt. No. 33
at,, 17, 32.) On April 4, 2015, Plaintiff allegedly was on the second floor of the property and
opened an access door to the elevator. (Dkt. No. 33 at

1 33.)

Plaintiff then allegedly stepped

through the door and fell down the elevator shaft because the elevator was not on the second floor.
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(Dkt. No. 33 at ,33 - 34.) At the time of the incident, the property was owned by Bridge
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Charleston Investments E, LLC, ("Bridge Charleston") and was managed by Luxury Simplified
Retreats ("Luxury Simplified"). (Dkt. No. 94 - 1 at 7.)
Defendant Folly's Best, Inc. was a temporary staffing agency and was not involved in the
management of the property. (Dkt. No. 94-2 at~ 3.) Defendant Folly's Best Rental's, Inc. is a
management company that managed the property for Judy Markowitz, the prior owner. (Dkt. No.
94-2 at~ 4.) However, Folly's Best Rental's was terminated as the property manager on October
10, 2013, after the property was sold to Bridge Charleston on September 8, 2014. (Dkt. Nos. 941 at 13; 94-2 at~ 7.) At that point, Folly's Best Rental's had no more involvement in managing
the property. (Dkt. No. 94-1 at 9.)
Importantly, the elevator had issues prior to Plaintiff's alleged injuries. First, Folly's Best
Rental's was informed on October 14, 2013, by their employer, Ms. Markowitz, that the elevator
door opened and there was no elevator. (Dkt. No. 94-2 at~ 5.) Defendants submitted an affidavit
stating that Ms. Markowitz ultimately paid for and oversaw the repairs. (Id.) Furthermore, after
the sale, an owner of Bridge Charleston experienced the same issue with the elevator, and
discussed the issue with Ms. Markowitz. (Dkt. No. 94-1 at 17.)
Plaintiff alleges that Defendants were negligent in their management of the property, that
they breached an implied warranty as to the elevator' s safety, and that they are strictly liable for
her injuries. (Dkt. No. 33 .) Defendants move for summary judgment on all claims, and Plaintiff
filed an opposition. (Dkt. Nos. 94, 97.)

II.

Legal Standard
To prevail on a motion for summary judgment, the movant must demonstrate that there is

no genuine issue of any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the burden of identifying
the portions of the "pleadings, depositions, answers to interrogatories, any admissions on file,
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together with the affidavits, if any, which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The Court will construe all inferences and ambiguities against the
movant and in favor of the non-moving party. US. v. Diebold, Inc., 369 U.S . 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-moving party's position is
insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 4 77
U.S. 242, 252 (1986). However, an issue of material fact is genuine if the evidence is such that a
reasonable jury could return a verdict in favor of the non-movant. Id at 257.
"When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts." Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with 'specific facts showing that there is a genuine issue
for trial.'" Id at 587. "Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue for trial."' Id. (quoting First Nat'l Bank

ofAriz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

III.

Discussion
Defendants have presented admissible evidence that their relationship with the property

was terminated no later than October 10, 2014, and had no involvement in Plaintiff renting the
property. (Dkt. Nos. 94-1 at 13; 94-2

at~

7.) Defendants have also presented evidence that they

were not a party to the sale, and instead were a management company, who had no relationship to
either Bridge Charleston or the Plaintiff. (Dkt. No. 94-1 at 9.) Defendants therefore met their
threshold burden to demonstrate that there is no issue of material fact that they do not owe any
duty to Plaintiff regarding the elevator, especially where Defendants had no involvement in a prior
repair of the elevator, were informed the elevator had been repaired, were no longer employed at
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the time issues arose after the sale and had been terminated as property managers over six months
prior to the incident at issue. There further is no allegations in the amended complaint or evidence
in the record regarding Defendants manufacturing, selling, inspecting, distributing or otherwise
managing the elevator that would support Plaintiffs claims for strict liability or breach of
warranty. Indeed, the Defendants here are not even specifically mentioned in the Plaintiffs causes
of action for strict liability or breach of warranty. (Dkt. No. 33 at iii! 43 - 51.)
Most importantly, Plaintiff has failed to present any admissible evidence to rebut
Defendants' motion.

Plaintiffs response includes no affidavits or exhibits, and instead

conclusorily argues that Defendants had a "duty to properly manage the subject property[,]" to
"oversee[] the attempted repair of the elevator," and were "engaged in deferred maintenance."
(Dkt. No. 97 at 2 - 3.) Plaintiff, however, has not included any admissible evidence supporting
those alleged facts. It is well-settled that when opposing a motion for summary judgment, a
nonmoving party must "offer[] ' sufficient proof in the form of admissible evidence .... " ' Variety
Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651 , 659 (4th Cir. 2018) (emphasis added) (citation

omitted). Plaintiff has failed to do that here and has not included any evidence, such as documents,
depositions, affidavits or otherwise, that supports their opposition.
Finally, Plaintiff argues that this motion is premature because Discovery does not close
until November 16, 2018. (Dkt. No. 74.) Defendants were served as of September 12, 2017, and
Discovery has been open as to these Defendants since at least September 18, 2017, when the third
amended scheduling order was issued. (Dkt. Nos. 45; 46; 53) Plaintiff has not presented any
information they discovered during that period that would support her claims against Defendants.
Furthermore, Plaintiff failed to file an affidavit specifying what necessary discovery is still

outstanding. As the Fourth Circuit held, " [a] party may not simply assert in its brief that discovery

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was necessary and thereby overturn summary judgment when it failed to comply with the
requirement of Rule 56(f)[IJ to set out reasons for the need for discovery in an affidavit." Nguyen
v. CNA Corp. , 44 F.3d 234, 242 (4th Cir. 1995) (citations omitted). Plaintiff instead referred to

three upcoming depositions 2 but failed to include any information on how the depositions would
affect summary judgment. Indeed, at least one of the individuals, Denise Holtz, does not work for
Defendants, and the Court has no information regarding how the two other referenced individuals,
Allison Williams and Skip Mulligan, relate to Defendants. Furthermore, while Plaintiff made
conclusory reference to possible 30(b )(6) depositions in her brief, there is no indication in the
record that any such depositions are planned. 3 Therefore, Plaintiff has failed to present any
admissible evidence sufficient to defeat summary judgment.
IV.

Conclusion
For the foregoin g reasons, the Court GRANTS Defendant Folly' s Best Rentals, Inc. and

Folly' s Best, Inc.'s Motion to Summary Judgment (Dkt. No . 94.)
AND IT IS SO ORDERED.

Richard Mark Gerg 1
United States District Court Judge
September ~2018
Charleston, South Carolina

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As of the 2010 Amendments, Rule 56(d) includes the provisions previously in Rule 56(±).

2

Furthermore, based on the Joint Discovery Status Report, the depositions occurred on August 17,
2018, prior to the Plaintiff filing her Response on August 21 , 2018 . (Dkt. Nos. 97, 108.)
Defendants represent that as of the filing of their Reply, no such depositions have been noticed.
(Dkt. No. 100 at 3 n.1.) Furthermore, in the Parties' recently filed Joint Discovery Status Report,
no reference was made to 30(b)(6) depositions regarding the moving Defendants. (Dkt. No. 108.)

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