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Utica Mutual Insurance Co. v. Empco Contracting, Inc.

United States District Court, Third Circuit

October 23, 2013

UTICA MUTUAL INSURANCE COMPANY, Plaintiff,
v.
EMPCO CONTRACTING, INC., et al., Defendants.

OPINION & ORDER

FAITH S. HOCHBERG, District Judge.

This matter comes before the Court upon Utica Mutual Insurance Company's ("Utica" or "Plaintiff") Motion for Summary Judgment [Dkt. No. 28]. This motion is unopposed. For the reasons stated below, the Court grants-in-part and denies-in-part Utica's Motion for Summary Judgment. Specifically, the Court grants Utica's Motion for Summary Judgment against defendant Gregory Reynholds and denies Utica's Motion for Summary Judgment against defendant Elizabeth Reynholds without prejudice.[1] This Court has considered the submissions pursuant to Federal Rule of Civil Procedure 78;[2] and

it appearing that pursuant to Federal Rule of Civil Procedure 56(c), a motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); and

it appearing, in other words, that "summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party;" Miller v. Indiana Hosp., 843 F.2d 139, 143 (3d Cir. 1988); and

it appearing that all facts and inferences must be construed in the light most favorable to the nonmoving party; Peters v. Delaware River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994); and

it appearing that the party seeking summary judgment always bears the initial burden of production; Celotex Corp., 477 U.S. at 323; and

it appearing that this requires the moving party to establish either that there is no genuine issue of material fact and that the moving party must prevail as a matter of law, or to demonstrate that the non-moving party has not shown the requisite facts relating to an essential element of an issue for which it bears the burden; see id. at 322-23; and

it appearing that Rule 56(e) of the Federal Rules of Civil Procedure provides that "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it;" and

it appearing that it is well settled that "this does not mean that a moving party is automatically entitled to summary judgment if the opposing party does not respond;" Anchorage Assoc. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990); and

it appearing that in considering an unopposed summary judgment motion, it is entirely appropriate for this Court to treat all of the facts properly supported by the movant to be uncontroverted; see id. at 176; Longoria v. New Jersey, 168 F.Supp.2d 308, 312, n.1 (D.N.J. 2001) (holding that where plaintiff had not submitted a Rule 56.1 statement, the court would treat the facts in the defendant's Rule 56.1 statement as admitted unless controverted in the plaintiff's briefs or contradicted by the evidence); see also Custer v. Pan American Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993); Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992); and

it appearing that despite the time to do so having passed, and Defendants have not filed any response or opposition to Plaintiff's Motion for Summary Judgment; and

it appearing that the proof submitted by Plaintiff establishes that Gregory Reynholds agreed to indemnify Utica, jointly and severally, for any and all damages, costs and expenses, including attorney's fees, incurred as a result of claims under any surety bonds issued to Empco or in enforcing the terms of the indemnity agreement;[3] and

it appearing that the proof submitted by Plaintiff establishes that Utica issued several performance, labor, union, and material bonds to Empco in connection with Empco's work at various construction projects; and

it appearing the proof submitted by Plaintiff establishes that Utica began receiving claims from Empco's subcontractors and suppliers ...


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