Lansky v. Protection One Alarm Monitoring, Inc.
Filing
37
ORDER granting 34 Defendant's Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 2/12/2018.
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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DEBORAH LANSKY,
Plaintiff,
v.
PROTECTION ONE ALARM
MONITORING, INC.,
Defendant.
No. 17-2883
ORDER
Before the Court is the November 21, 2018 Motion for Summary
Judgment, filed by Defendant ADT LLC, successor-in-interest to
Protection One Alarm Monitoring, Inc. (“ADT”).
(ECF No. 34.)
Plaintiff Deborah Lansky responded on December 19, 2018.
No. 35.)
ADT replied on December 28, 2018.
(ECF
(ECF No. 36.)
For the following reasons, ADT’s Motion for Summary Judgment
is GRANTED.
I.
Background
A. Procedural History
On
October
12,
2017,
Lansky
filed
a
complaint
in
the
Tennessee Circuit Court for the Thirtieth Judicial District at
Memphis.
(See Compl., ECF No. 1-2.)
She alleged that a burglar
had broken into her apartment, and that ADT, her alarm company,
did not call the police.
thief
stole
($100,000.00)
(See id. ¶ 3.)
“approximately
in
personal
one
Lansky alleged the
hundred
property.”
(Id.
thousand
¶¶
dollars
9-10.)
She
asserted claims of breach of contract, negligence, “recklessness
and/or gross negligence,” and detrimental reliance against ADT’s
predecessor Protection One Alarm Monitoring, Inc. (See generally
id.)
On December 8, 2017, ADT removed the case to this Court on
the basis of diversity jurisdiction.
(Notice of Removal, ECF
No. 1 at 2.)
On January 5, 2018, ADT filed a Motion for Judgment on the
Pleadings.
(ECF Nos. 8-9.)
The Court granted ADT’s motion on
Lansky’s detrimental reliance claim.
(See ECF No. 27.)
The
Court also granted ADT’s motion to limit recovery on Lansky’s
breach of contract and negligence claims to $250.
(See ECF Nos.
27, 33.)
ADT filed its Motion for Summary Judgment on November 21,
2018.
(ECF No. 34.)
ADT seeks summary judgment on Lansky’s
remaining claims. (See generally id.)
B. Lansky’s Statement of Undisputed Facts
Both parties have submitted Statements of Undisputed Facts.
(ECF Nos. 34-2, 35-2.)
In
response
to
ADT’s
Statement
of
Facts, Lansky has submitted a document in two parts: (1) a
2
response to ADT’s Statement of Facts; and (2) a statement of
additional “undisputed” facts.
(See ECF No. 35-2.)
ADT did not respond to Lansky’s additional statement of
undisputed facts in its reply.
Under Local Rule 56.1(b), the
nonmovant may set forth a statement of additional facts she
considers material and that she contends show the existence of
a genuine issue for trial.
See L.R. 56.1(b).
If the moving
party files a reply, it must “respond to these additional facts
by filing a reply statement . . . .”
failure
to
respond
to
the
L.R. 56.1(c).
nonmoving
party’s
Normally,
statement
of
additional facts “shall indicate that the asserted facts are not
disputed for purposes of summary judgment.”
L.R. 56.1(d).
Lansky, however, represents that the facts contained in her
additional statement are “undisputed.”
(ECF No. 35-2 at 183.)
Because Lansky does not contend her additional statement contains
genuine factual issues to be tried, her filing is not recognized
by the Local Rules.
See L.R. 56.1(b).
Even if the facts in Lansky’s Statement were disputed, they
cite to portions of her affidavit that are not based on personal
knowledge or are legal conclusions.
affidavit are discussed below.
3
Those portions of Lansky’s
C. ADT’s Statement of Material Facts
Instead
of
record
evidence,
ADT’s
Statement
primarily cites allegations in Lansky’s Complaint.
35-2.)
of
Facts
(See ECF No.
ADT states only one material fact that does not appear
in the Complaint.
(See id. ¶ 1 (ADT entered into a contract
with Lansky to provide alarm monitoring services for Lansky’s
apartment).)
affidavit,
response,
No
other
declaration,
or
other
form
material
fact
deposition
of
is
substantiated
transcript,
evidence.
Because
by
discovery
ADT
cites
allegations almost exclusively and refers to almost no record
evidence, the question is whether ADT’s motion is properly
supported.
To succeed, ADT must show that there “is no genuine dispute
as to any material fact . . . .”
Fed. R. Civ. P. 56(a).
A party
asserting that a fact cannot be genuinely disputed must support
that assertion by: “(A) citing to particular parts of material
in the record . . .; or (B) showing . . . that an adverse party
cannot produce admissible evidence to support the fact.”
R. Civ. P. 56(c)(1)(A), (B).
Fed.
Because ADT cites virtually no
record material, it must make an adequate “showing” of an absence
of admissible evidence under Rule 56(c)(1)(B).
Rule 56 and Sixth Circuit case law do not expressly define
what is necessary for a proper “showing” under Rule 56(c)(1)(B).
The Committee Note to Rule 56 explains only that this definition
4
is to be supplied by “the continuing development of decisional
law . . . .”
Fed. R. Civ. P. 56, Advisory Committee Note (2010).
The Sixth Circuit has stated that, when a summary judgment movant
“does not bear the ultimate burden of persuasion,” the movant
need only assert “the absence of a genuine factual issue,” with
no need to point to admissible evidence.
Elkins v. Richardson-
Merrell, Inc., 8 F.3d 1068, 1071-72 (6th Cir. 1993); accord
Jefferson v. Chattanooga Pub. Co., 375 F.3d 461, 463 (6th Cir.
2004) (the movant “need[] only . . . state that there is an
absence
of
claims.”).
facts
or
evidence
to
support
[the
nonmovant’s]
The movant can “challenge the opposing party to ‘put
up or shut up’ on a critical issue,” and if it does “not ‘put
up,’ summary judgment [is] proper.”
Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1478 (6th Cir. 1989).
The requirements for
a “showing” under Rule 56(c)(1)(B) are minimal. ADT has asserted
Lansky
cannot
meet
her
summary
evidence supporting her claims.
judgment
burden
to
produce
ADT’s failure to cite record
evidence does not preclude it from seeking summary judgment.
II.
Jurisdiction & Choice of Law
The Court has diversity jurisdiction under 28 U.S.C. § 1332.
Lansky is a resident and citizen of Shelby County, Tennessee.
(Compl., ECF No. 1-2 ¶ 1.)
ADT is a limited liability company
whose sole member is a Delaware corporation with its principal
place of business in Florida.
(Notice of Removal, ECF No. 1
5
¶ 7.)
A limited liability company is a citizen wherever its
members are citizens.
See Delay v. Rosenthal Collins Grp., LLC,
585 F.3d 1003, 1005 (6th Cir. 2009). ADT is a citizen of Delaware
and Florida.
The parties are completely diverse.
Plaintiff alleges that the amount in controversy exceeds
$75,000.
(Compl., ECF No. 1-2 at 14.)
“[T]he sum claimed by
the plaintiff controls if the claim is apparently made in good
faith.”
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 288 (1938); see also Mass. Cas. Ins. Co. v. Harmon, 88 F.3d
415,
416
(6th
Cir.
1996).
The
requirements
of
diversity
jurisdiction are satisfied.
The Court decided in its June 21, 2018 Order that Tennessee
law applies to Lansky’s state law claims.
(See ECF No. 27.)
No
party contests that decision.
III.
Standard of Review
Under Federal Rule of Civil Procedure 56, on motion of
either party, the court “shall grant summary judgment 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).
nonmoving
party,
having
The moving party must show that the
had
sufficient
opportunity
for
discovery, lacks evidence to support an essential element of her
case.
See Fed. R. Civ. P. 56(c)(1); Peeples v. City of Detroit,
891 F.3d 622, 630 (6th Cir. 2018).
6
When confronted with a properly supported motion for summary
judgment, the nonmoving party must set forth specific facts
showing that there is a genuine dispute for trial.
Civ. P. 56(c).
See Fed. R.
“A ‘genuine’ dispute exists when the plaintiff
presents ‘significant probative evidence’ ‘on which a reasonable
jury could return a verdict for her.’”
EEOC v. Ford Motor Co.,
782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting Chappell
v. City of Cleveland, 585 F.3d 901, 913 (6th Cir. 2009)).
The
nonmoving party must do more than simply “show that there is
some metaphysical doubt as to the material facts.”
Lossia
v. Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir. 2018)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)).
The nonmovant must identify specific
evidence in the record that would be sufficient to justify a
trier of fact’s decision in the nonmovant’s favor.
See Fed. R.
Civ. P. 56(c)(1); Hanson v. Madison Cty. Det. Ctr., 736 F. App'x
521, 527 (6th Cir. 2018).
Although summary judgment must be used carefully, it “is an
integral part of the Federal Rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of
every action[,] rather than a disfavored procedural shortcut.”
FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009)
(internal quotation marks and citations omitted).
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IV.
Analysis
ADT seeks summary judgment on Lansky’s remaining claims of
recklessness, negligence, and breach of contract. (See generally
ECF No. 34.)
ADT argues that Lansky can offer no evidence that
(1) ADT’s conduct was reckless, or (2) that ADT’s conduct was
the cause of Lansky’s loss of property.
(See id. at 161–64,
164–65.)
A. Gross Negligence and Recklessness
In Tennessee, parties may contract to limit their liability
for ordinary negligence by capping damages at a fixed amount.
See Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990).
That is what Lansky and ADT did here when they agreed to limit
damages against each other to $250.
(See ECF No. 9-1 at 55.)
Under Tennessee law, “[h]owever, a contract against liability
will not operate to protect a party who is guilty of gross
negligence.”
See Buckner, 793 S.W.2d at 941; see also Maxwell
v. Motorcycle Safety Found., Inc., 404 S.W.3d 469, 474 (Tenn.
Ct. App. 2013).
Lansky contends that ADT’s failure to notify
police of the break-in constitutes “recklessness and/or gross
negligence.”
(Compl., ECF No. 1-2 at 14.)
To prevail on a claim of gross negligence in Tennessee,
Lansky must prove “ordinary negligence and must then prove that
the defendant acted ‘with utter unconcern for the safety of
others, or . . . with such a reckless disregard for the rights
8
of others that a conscious indifference to consequences is
implied in law.’”
94
(Tenn.
Ct.
Recklessness
Leatherwood v. Wadley, 121 S.W.3d 682, 693–
App.
is
2003)
defined
as
(internal
the
citations
conscious
omitted).
disregard
of
“a
substantial and unjustifiable risk of such a nature that its
disregard constitutes a gross deviation from the standard of
care
that
an
ordinary
circumstances.”
person
would
exercise
under
all
the
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901
(Tenn. 1992) (citing Tenn. Code Ann. § 39–11–302); see also
Restatement (Second) of Torts § 500 cmt. a (2008) (“For . . .
reckless conduct, the actor must know, or have reason to know,
the facts which create the risk.”).
ADT
argues
that
Lansky’s
gross
negligence
claim
fails
because Lansky has produced no evidence to support it, and that
“[d]iscovery is closed and no testimony or expert reports exist
in this case.”
(ECF No. 34-1 at 161.)
ADT contends that Lanksy
has failed to show ADT’s conduct demonstrated a “‘conscious
indifference to consequences,’” and that Lansky cites no evidence
establishing a gross deviation from the applicable standard of
care.
(Id. at 162 (citing Thomason v. Wayne Cty., 611 S.W.2d
585, 587 (Tenn. Ct. App. 1980))).
Throughout her response, Lansky cites an affidavit she filed
as an attachment.
(See ECF No. 35–1.)
Lansky’s post-discovery
affidavit is the only evidence in the record to which either
9
party refers.
argues
that
Citing four statements in that affidavit, Lansky
she
has
provided
sufficient
negligence to establish a triable issue.
evidence
of
gross
(See id. at 177—78.)
The four statements are:
5.
The ONLY act that the Defendant completed was
leaving me a voice mail message asking for me to return
their phone call.
. . .
8. I reasonably relied on the Defendant to monitor my
apartment and security system properly, and the
Defendant utterly failed to do so.
. . .
11. Based upon my own personal experience in being a
security company customer and the advertisements
and/or representations of what the Defendant would do
as a security monitoring company, the Defendant
disregarded a substantial risk that occurred and this
disregard is a gross deviation from what any reasonable
security monitoring company would exercise in the same
situation.
. . .
12. The Defendant intentionally failed to do an act
([i.e.,] not timely and properly notifying me of the
alarm activation and not notifying the police,
apartment complex, and other proper authorities) in
which it was their contractual duty to do, and knowing
or having reason to know of facts which a reasonable
person to realize, not only that their conduct created
an unreasonable risk of harm to me but also that such
risk is substantially greater than that which is
necessary to make their conduct simply negligent.
Federal Rule of Civil Procedure 56(c)(4) provides that “[a]n
affidavit or declaration used to support or oppose a motion [for
summary judgment] must be made on personal knowledge, set out
10
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.”
Fed. R. Civ. P. 56(c)(4).
“‘Conclusory allegations
and self-serving affidavits, without support in the record, do
not create a triable issue of fact,’ and are insufficient to
withstand a motion for summary judgment.”
Mav of Mich., Inc.
v. Am. Country Ins. Co., 289 F. Supp. 2d 873, 875 n.3 (E.D. Mich.
2003) (quoting Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th
Cir. 2002)).
The quoted passages in Lansky’s affidavit do not create
genuine
issues
of
material
fact.
Lansky
states
that
she
“reasonably relied” on ADT, that ADT “utterly failed” to perform,
and that, “[b]ased upon [her] own personal experience in being
a security company customer . . . [ADT’s conduct] is a gross
deviation from what any reasonable security monitoring company
would exercise in the same situation.”
These
are
consider.
bare
legal
conclusions,
(ECF No. 35-3 ¶¶ 8, 11.)
which
the
Court
may
not
See Padgett v. Caruso, 2011 WL 4701765 (W.D. Mich.,
Aug. 17, 2011) (“Legal conclusions, whether asserted in an
affidavit or verified complaint, do not suffice to create a
genuine issue of material fact for trial.”)
The other cited
paragraphs in Lansky’s affidavit state that ADT “intentionally”
failed to act, and that ADT’s only act was to leave Lansky a
voicemail.
(Id. ¶¶ 5, 12.)
The affidavit shows no basis in
11
personal knowledge for such statements, as required by Rule
56(c)(4).
The Court cannot consider them.
Lansky cites no admissible evidence of gross negligence or
recklessness, and no reasonable trier of fact could find in her
favor based solely on the parties’ stipulated background facts.
Lansky has produced no evidence establishing that ADT showed
“conscious indifference to consequences,” or that ADT’s conduct
was a gross deviation from the applicable standard of care.
Thomason, 611 S.W.2d at 587.
her claim.
See id.
Those elements are essential to
Absent admissible evidence to support her
claim, Lansky cannot rebut ADT’s Motion for Summary Judgment on
her gross negligence claim.
ADT’s
Motion
for
Summary
Judgment
on
Lansky’s
gross
negligence claim is GRANTED.
B. Causation
ADT
argues
that
Lansky
cites
no
facts
in
the
record
establishing that ADT’s conduct was the “factual and proximate”
cause of Lansky’s loss of property.
(ECF No. 34-1 at 164–65.)
Because causation of loss is a necessary element of Lansky’s
negligence and breach of contract claims, ADT contends those
claims must fail.
(Id.)
The section of Lansky’s response discussing causation cites
no evidence and refers to no specific facts.
at 164—65.)
(See ECF No. 34-1
As the party opposing summary judgment, Lansky must
12
“cit[e]
to
particular
parts
of
materials
in
the
record”
establishing a genuine dispute or “show[] that the materials
cited do not establish the absence . . . of a genuine dispute.”
Fed. R. Civ. Pro. 56(c)(1).
The Court has no duty to “search
the entire record to establish that it is bereft of a genuine
issue of material fact.”
Cir. 2001).
In re Morris, 260 F.3d 654, 655 (6th
Rather, “the nonmoving party has an affirmative
duty to direct the court’s attention to those specific portions
of the record upon which it seeks to rely to create a genuine
issue of material fact.”
Id.
Under Tennessee law, Lansky must prove causation by a
preponderance of the evidence to recover damages for breach of
contract and for negligence.
See Fed. Ins. Co. v. Winters, 354
S.W.3d 287, 291 (Tenn. 2011) (breach of contract); Kempson
v. Casey, No. E201502184COAR3CV, 2016 WL 6499283, at *4 (Tenn.
Ct. App. Nov. 2, 2016) (negligence).
Lansky has pointed to no
evidence in the record that would allow a trier of fact to
conclude that ADT caused Lansky’s loss.
The Court finds none.
Lansky fails to meet her summary judgment burden.
ADT’s Motion for Summary Judgment is GRANTED on Lansky’s
negligence and breach of contract claims.
V.
Conclusion
For the foregoing reasons, ADT’s Motion for Summary Judgment
is GRANTED.
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So ordered this 12th day of February, 2019.
/s/ Samuel H. Mays, Jr.
Samuel H. Mays, Jr.
UNITED STATES DISTRICT JUDGE
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