United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on the defendant's Motion
for Summary Judgment Against Giuseppe Tromba a/k/a Joe Tromba
(Doc. #33), filed on February 20, 2018. Plaintiff filed a
verified Opposition (Doc. #44) in response on April 5, 2018.
judgment is appropriate only when the Court is satisfied that
“there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “An issue of fact is
‘genuine' if the record taken as a whole could lead
a rational trier of fact to find for the nonmoving
party.” Baby Buddies, Inc. v. Toys “R”
Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact
is “material” if it may affect the outcome of the
suit under governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “A court must
decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.'” Hickson Corp. v. N. Crossarm Co.,
Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing
Anderson, 477 U.S. at 251).
ruling on a motion for summary judgment, the Court views all
evidence and draws all reasonable inferences in favor of the
non-moving party. Scott v. Harris, 550 U.S. 372, 380
(2007); Tana v. Dantanna's, 611 F.3d 767, 772
(11th Cir. 2010). However, “if reasonable minds might
differ on the inferences arising from undisputed facts, then
the court should deny summary judgment.” St.
Charles Foods, Inc. v. America's Favorite Chicken
Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting
Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695
F.2d 1294, 1296-97 (11th Cir. 1983) (finding summary judgment
“may be inappropriate even where the parties agree on
the basic facts, but disagree about the factual inferences
that should be drawn from these facts”)). “If a
reasonable fact finder evaluating the evidence could draw
more than one inference from the facts, and if that inference
introduces a genuine issue of material fact, then the court
should not grant summary judgment.” Allen v. Bd. of
Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
plaintiff Target Corporation (Target) seeks summary judgment
against defendant Giuseppe Tromba (Mr. Tromba or defendant)
in the amount of $132, 319.59 based on certain admissions
contained in Mr. Tromba's Amended Answer, the attached
Declarations of Joel Peters and Matthew R. McBride, and
primarily Mr. Tromba's failure to respond to Target's
First Set of Interrogatories, Requests for Production of
Documents, and Requests for Admission. Defendant's
opposition to the motion does not dispute his failure to
respond to the discovery requests, but does oppose summary
admitted in the Amended Answer, Target contracted with
Prestige, a general contractor, to construct gender-neutral
bathrooms in certain Minnesota stores. The agreement was
governed by a Program Agreement for Goods and Services. (Doc.
#15 & Doc. #27, ¶¶ 8-9.) Independently of the
Target agreement, a Factoring Agreement was signed by
Tromba's wife on behalf of Prestige which entitled
Capital Solutions Bancorp LLC to receive the amounts Target
owed to Prestige. (Doc. #2-1; Doc. #33-4, Exh. D.) Mr. Tromba
did not sign the Factoring Agreement, and denies that there
was an agreement.
March 2, 2017, in response to an email from Target, Prestige
directed that all payments from Target should still be made
to Prestige, and stated “I don't know why Capital
[S]olutions Bancorp is contacting you, but they do not
represent my company in any capacity nor provide any
services.” Target responded that it seemed like there
should be some correspondence between Prestige and Capital
Solution, to which Prestige replied “I will have my
attorney contact [Capital] tomorrow” and “They do
not represent [Prestige] in any capacity.” (Doc. #15
& Doc. #27, ¶¶ 21 22 23.) Target paid the money
under its agreement to Prestige, only to be sued by Capital,
which asserted it was entitled to the money that Target had
paid to Prestige. Target eventually paid Capital $132, 319.59
to settle that claim. (Doc. #33-3, Exh. C.)
December 7, 2017, Target served Tromba with its First Set of
Interrogatories, Requests for Production of Documents, and
Requests for Admission by electronic mail and by U.S. Mail.
Responses were due on January 6, 2018. Tromba failed to
timely respond to the discovery requests. (Doc. #33-2, Exh.
B.) The following facts are established by the Requests for
REQUEST NO 1: Admit that Prestige is bound by the General
REQUEST NO 2: Admit that Target paid Prestige all amounts
owed to Prestige under the General Contract.
REQUEST NO 3: Admit that Prestige failed to pay one or more
Subcontractors in full in connection with work performed on
REQUEST NO 4: Admit that Prestige failed to take· any
action to cause any lien(s) that attached to any Target asset
in connection with the Project to be released, bonded
against, and/or discharged.
REQUEST NO 5: Admit that Prestige entered into the Factoring
Agreement with Capital.
REQUEST NO 6: Admit that Tromba authored the email described
in paragraph 21 of the ...