United States District Court, S.D. Florida, Miami Division
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE
1');">1983 song “Everything Counts, ” British
electronic/new wave band Depeche Mode musically discussed
contracts: “The handshake / seals the contract / from
the contracts / there's no turning
back.”[1');">1" name="FN1');">1" id=
"FN1');">1">1');">1] In the instant case, however, focusing on
which party did not enter into an insurance contract seals
the deal in the sense that the Court is not turning back from
granting a summary judgment motion filed by Defendant Allianz
Global Corporate & Specialty (“Allianz”).
filed a summary judgment motion [ECF No. 21');">10] concerning all
four counts of the Amended Complaint. Basically,
Allianz's argument is that it is merely a registered
trademark, not a legal entity. Therefore, Allianz's
motion emphasizes that it was not a party to the underlying
contract (i.e., the insurance policy issued to Plaintiff
Katchmore Luhrs, LLC (“Katchmore“)) and that
there is consequently no privity between it and Katchmore.
typical for this case (i.e., more than 245 docket entries for
a case involving a $60, 000 insurance policy), the briefing
has been comparatively voluminous. In addition to submitting
the summary judgment motion, Allianz filed a statement of
facts, notices of filing affidavits, a reply memorandum, a
notice of filing deposition transcript, an amended reply and
another notice of filing another deposition transcript [ECF
Nos. 21');">11');">1; 21');">12; 21');">13; 235; 236; 246; 247]. Katchmore filed an
opposition memorandum and a later-submitted statement of
disputed facts. [ECF Nos. 231');">1; 245].
the counts at issue in the summary judgment motion, however,
have been abated and stayed because Katchmore must first
establish liability and the extent of damages under the
insurance policy contact before its claims under Counts III
and IV are ripe. The Order abating these two claims [ECF No.
228] stayed the counts for failure to settle in good faith
(Count III) and a violation of Florida Statute § 624.1');">155
a substantial portion of the briefing concerned these two
event, for the reasons outlined in greater detail below, the
Undersigned grants Allianz's summary judgment motion as
to Counts I (breach of the insurance policy contract) and
Count II (for an appraisal). The Undersigned previously
denied Plaintiff's motion for an appraisal. [ECF No.
1');">109]. At bottom, the Undersigned is granting Allianz's
motion because it is not a party to the contract and
therefore cannot be found liable for breach of contract or
for a remedy -- i.e., an appraisal -- dependent on the
contract. This result occurs regardless of whether Allianz is
a legal entity because, even if it is a legal entity and not
solely a trade name (and the record evidence is that it is
not a legal entity), the undisputed fact is that it
is not a party to the contract.
did not file an adequate statement of disputed facts in
response to the statement of undisputed material facts which
Allianz filed in support of its summary judgment motion.
Months after filing its opposition to the summary judgment
motion, Plaintiff received my order on a different summary
judgment motion (i.e., one jointly filed by Allianz and
Codefendant AGCS Marine Insurance Co.). In that Order [ECF
No. 238], I pointed out that Plaintiff filed to submit a
proper response to the statement of undisputed facts, so
Plaintiff then filed a motion in this case for leave to file
a belated Statement of Disputed Facts [ECF No. 240]. The
Undersigned granted [ECF No. 243] the motion (over
Allianz's objection) and Katchmore submitted a document
it described as a Statement of Disputed Facts [ECF No. 245].
that Statement is also inadequate.
Local Rule 56.1');">1, the Undersigned has authority to deem as
admitted all the facts submitted by Defendant in support of
its arguments. As the plain language of Local Rule 56.1');">1
states, “(a): A motion for summary judgment and the
opposition thereto shall be accompanied by a statement of
material facts as to which it is contended . . . there does
exist a genuine issue to be tried[.]“ S.D. Fla. L.R.
56.1');">1(a) (emphasis supplied). The local rule requires that
such statement “(1');">1) Not exceed ten (1');">10) pages in
length; (2) Be supported by specific references to pleadings,
depositions, answers to interrogatories, admissions, and
affidavits on file with the Court; and (3) Consist of
separately numbered paragraphs.“ Id. (emphasis
of a respondent to file a statement of disputed facts, in the
format as required above, causes “[a]ll material facts
set forth in the movant's statement” to be
“deemed admitted unless controverted by the opposing
party's statement[.]” S.D. Fla. L.R. 56.1');">1(b)
Statement of Disputed Facts, filed after it was specifically
advised that another summary judgment opposition it filed
violated the local rule because it did not submit a proper
response to Defendants' statement of undisputed facts,
merely listed which paragraphs it disputes. It did not
explain why -- and it surely did not include specific
references to record evidence (such as deposition testimony
or interrogatory answers).
party properly complies with Local Rule 56.1');">1, it is
relatively easy for a court to determine whether there is a
genuine disputed issue of fact. Basically, all a court needs
to do is to look at the opposing statement of material facts
on a paragraph-by-paragraph basis, see whether any paragraphs
are designated as disputed and then make note of the
evidentiary reasons for the dispute. When a party does not
comply with the Local Rule by referencing record evidence,
however, then it is exceedingly difficult for a court to
discern if there is an actual factual dispute concerning a
specific paragraph. A court needs to review the entire
opposing memorandum and exhibits to determine whether there
is a sound factual basis for saying that a point deemed
factually undisputed by the movant is actually disputed.
can be an arduous process, and, in any event, generates
unnecessary work for the court and its staff.
Plaintiff intends for the Undersigned to comb through its
barebones statement of disputed facts and then sift through
it, the opposition memorandum and exhibits to determine
whether I can accept Plaintiff's contention that a
purported undisputed fact is actually in dispute.
approach, contrary to the local rule, requires me to, in
effect, do its job.
“[j]udges are not like pigs, hunting for truffles
buried in briefs.” United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1');">1991');">1); see also Chavez v.
Sec'y Fla. Dept. of Corr., 1');">1057');">647 F.3d 1');">1057, 1');">1061');">1 (1');">11');">1th
Cir. 201');">11');">1) (“judges are not required to ferret out
delectable facts buried in a massive record, like the one in
this case”). The local rule is unambiguous: it requires
specific references to record evidence in the statement of
undisputed facts or the opposition to that statement (i.e., a
de facto statement of disputed facts).
did not follow a basic procedural requirement of Local Rule
56.1');">1. Initially, its opposition failed in many procedural
respects. But Plaintiff's continued failure to follow the
local rule is particularly problematic now because it occurs
after the Court exercised discretion and permitted it ...