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Gendelman v. Blumenstein

United States District Court, D. New Jersey

June 2, 2015


GEOFFREY B. GOMPERS, ESQ., Moorestown, New Jersey, Counsel for Plaintiff.

JEFFREY R. LESSIN & ASSOCIATES PC, Jeffrey R. Lessin, Esq., Philadelphia, Pennsylvania, Counsel for Plaintiff.

HILL RIVKINS LLP, Michael D. Wilson, Esq., New York, New York, Counsel for Defendants Tracey J. Blumenstein and, Professional Boat Sales, Service & Storage, LLC.

MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, PC, Christopher B. Block, Esq., Roseland, New Jersey, Counsel for Defendant Cigarette Racing Team, LLC.


JOSEPH E. IRENAS, Senior District Judge.

On September 19, 2011, Defendant Tracey Blumenstein ("Blumenstein") was operating a 37.5 foot Top Gun Model Cigarette boat (the "Vessel") in Ships Channel in Egg Harbor Township, New Jersey, with passengers Plaintiff Robert Gendelman ("Plaintiff") and non-party Andrew Biddle. (Cigarette Racing Team LLC's ("Cigarette") Statement of Material Facts Not in Dispute, Dkt. No. 67-4 ("CSOF") ¶ 1; Blumenstein Defs.' Br. Opp. Cigarette's Mot. for Summ. J., Dkt. No. 77 ("Blumenstein Opp. Br.") at 5) When Blumenstein attempted to make a turn, the Vessel flipped and capsized, and all three individuals were ejected from the Vessel. (Id.)

Plaintiff sustained injuries and on November 9, 2012, filed a Complaint, Dkt. No. 1 ("Compl.") against Blumenstein and his company Professional Boat Sales, Service & Storage LLC ("PBS") (collectively "Blumenstein Defendants").[1] In response to discovery that followed, [2] Plaintiff amended his Complaint on August 8, 2013, to add Cigarette, the Vessel's designer and manufacturer, as a defendant. (Pl.'s First Mot. for Leave to File an Am. Compl., Dkt. No. 16 at ¶¶ 6-10; Amended Complaint, Dkt. No. 21 ("Am. Compl."))

Plaintiff alleges strict liability and negligence, each under both state and federal admiralty law, and breach of warranty against Cigarette. (Am. Compl. ¶¶ 26-63) Blumenstein Defendants also bring cross-claims against Cigarette for strict liability, negligence, and breach of warranty. (Defs. Answer and Cross-Claims, Dkt. No. 26 at 8-13) Presently before the Court is Cigarette's Motion for Summary Judgment, Dkt. No. 67 ("CMSJ").

Only Blumenstein Defendants filed an opposition brief to Cigarette's motion ("Blumenstein Opp. Br."). Plaintiff represented to the Court during a teleconference on February 24, 2015, and during oral argument on March 2, 2015, that he did not oppose Cigarette's motion, did not intend to file an opposition brief, and did not blame Cigarette for Plaintiff's injuries, emphasizing instead his personal belief that Blumenstein alone was at fault for the accident. Plaintiff has since attempted to join Blumenstein Defendants' opposition to Cigarette's motion via Letter-Brief dated March 13, 2015, Dkt. No. 99 ("Pl. Ltr.-Br."). The Court does not recognize this delayed attempt at opposition, which contradicts Plaintiff's previous statements, particularly given that Plaintiff continues to say that he does not personally believe Blumenstein Defendants' "dubious" arguments. (Pl. Ltr.-Br. at 4, 1-2)

During oral argument on March 12, 2015, the Court raised a question as to the effect of Plaintiff's lack of opposition to Cigarette's motion: whether Blumenstein Defendants' opposition to Cigarette's motion survived if Plaintiff did not also oppose it, or if Cigarette was instead entitled to an automatic grant of summary judgment.

In its responsive briefing, Cigarette argues that Blumenstein Defendants' cross-claims of contribution and indemnification are derivative of Plaintiff's underlying action and the Court should therefore dismiss the cross-claims, since Plaintiff does not oppose Cigarette's motion. Where a plaintiff drops his claim against a co-defendant, "it follows that [plaintiff's] disclaimer of all such damages necessarily extinguishes all cross-claims that are derivative of those injuries." Dougherty v. A O Smith Corp., No. CV 13-1972-SLR-SRF, 2014 WL 3542243, at *18 (D. Del. July 16, 2014) (internal quotation marks and citations omitted).

However, failing to file opposition to a summary judgment motion is not equivalent to dropping a claim. "Plaintiffs' failure to respond is not alone a sufficient basis for the entry of a summary judgment." Muskett v. Certegy Check Servs., Inc., No. CIV. 08-3975 JBS/JS, 2010 WL 2710555, at *3 (D.N.J. July 6, 2010) (citing Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990)). Fed.R.Civ.P. 56(e) requires that a Court determine "even for an unopposed summary judgment motion, whether the motion for summary judgment has been properly made and supported and whether granting summary judgment is appropriate[.]'" Muskett, 2010 WL 2710555, at *3. Therefore, the Court must independently evaluate the merits of Cigarette's motion, even without formal opposition from Plaintiff.

As the sole opponents to Cigarette's motion, Blumenstein Defendants now state that the line of inquiry regarding manufacturing or design defects in the boat's steering system was "pursued during discovery but ultimately found to be unavailing." (Blumenstein Opp. Br., Dkt. No. 77 at 7-8, n. 2) The Court therefore dismisses any claims on the basis of manufacturing or design defects, leaving only the claims alleging a failure to warn under theories of negligence and strict liability.[3]

Cigarette moves for summary judgment in its favor upon the claims remaining against it, and for the reasons set forth below, the Court will GRANT Cigarette's motion.

I. Relevant Facts

This Court's Local Rule 56.1 provides that "any material fact not disputed shall be deemed undisputed for purposes of the summary judgment motion." L. Civ. R. 56.1. See New Jersey Carpenters Pension Fund v. Hous. Auth. & Urban Dev. Agency of the City of Atl. City, No. CIV.A. 12-2229 JBS/A, 2014 WL 7205331, at *2 (D.N.J. Dec. 17, 2014). Because Plaintiff has not filed a statement of undisputed material facts, the Court treats ...

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