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Katchmore Luhrs, LLC v. Allianz Global & Corporate Specialty

United States District Court, S.D. Florida, Miami Division

January 31, 2017




         In the 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”).

         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.

         As is 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].

         Two of 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 (Count IV).

         Unfortunately, a substantial portion of the briefing concerned these two abated counts.

         In any 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.


         Plaintiff 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].

         But that Statement is also inadequate.

         Under 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 supplied).

         Failure 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) (emphasis added).

         Plaintiff's 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).

         When a 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.

         This can be an arduous process, and, in any event, generates unnecessary work for the court and its staff.

         Apparently, 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.

         Plaintiff's approach, contrary to the local rule, requires me to, in effect, do its job.

         But “[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).

         Plaintiff 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 ...

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