Milligan et al v. Hetra Computer & Communication Industries, Inc. et

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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE: 	.
.
JWP, INC. 	. 	Case No. 93-46404-rdd
.
Debtor. 	.
.
.
. . . . . . . . . . . . . . 	.
.
R. KEITH MILLIGAN, et al., 	.
.
Plaintiffs, 	.
vs. 	.
.
HETRA COMPUTER & 	. 	Adversary Proceeding
COMMUNICATION INDUSTRIES, 	. 	Case No. 94-08469-rdd
INC., et al., 	.
.
Defendants. 	.
. . . . . . . . . . . . . . .
MODIFIED AND CORRECTED BENCH RULING ON EMCORE GROUP, INC.'S
MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
For the Plaintiff: 	R. KEITH MILLIGAN
(Via Telephone) 	(Pro Se)
For EMCORE GROUP, INC.: 	DAVID A. SIFRE, ESQUIRE
(f/k/a JWP, Inc.) 	Stroock & Stroock & Lavan, LLP
180 Maiden Lane
New York, New York 10038
(212) 806-5400
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THE COURT: 	I have before me a motion by Emcore
Group, Inc., formerly known as JWP, Inc., a Defendant in this
adversary proceeding, for summary judgment pursuant to
section -- I'm sorry, pursuant to Bankruptcy Rule 7056, which
incorporates Fed.R.Civ.P. 56. 	That Rule provides that the
Court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Subject to Fed.R.Civ.P. 56(C)(2) through (4) and
56(D) through (E), which are inapplicable here, a party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by, a) citing to particular facts or
parts of materials in the record including depositions,
documents, electronically stored information, affidavits, or
declarations, stipulations, admissions, interrogatory
answers, or other materials; or b) by showing that the
materials cited do not establish the absence or presence of a
genuine dispute or that an adverse party cannot produce
admissible evidence to support the fact. 	Fed.R.Civ.P.
56(C)(1).
The movant bears the initial burden to come
forward with evidence that satisfies each material element of
its claim or defense. 	Vermont Teddy Bear Company v. 1-880-
BEARGRAM Company, 373 F. 3d 241, 244 (2nd Cir. 2004); Isaac
v. City of New York, 701 F.Supp. 2d 477, 485 (SDNY 2010),
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affirmed 271 F.App. 60 (2nd Cir. 2008).
Upon such a showing the non-moving party must
provide evidence of a genuine issue of material fact in order
to successfully oppose the motion. 	Matsushita Electric
Industries Company v. Zenith Radio Corporation, 475 U.S. 574,
586 (1986). 	Facts are material if they "might affect the
outcome of the suit under the governing law." 	Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
The Court "is not to weigh the evidence, but is
instead required to view the evidence in the light most
favorable to the party opposing summary judgment, to draw all
reasonable inferences in favor of that party, and to eschew
credibility assessments." 	Amnesty America v. Town of West
Hartford, 361 F. 3d 113, 122 (2nd Cir. 2004).
The non-moving party may not defeat a summary
judgment motion by identifying a disputed fact that is not
material or relying on conclusory or self-serving statements
or metaphysical doubts about a material fact. 	Liberty Lobby,
477 U.S. at 247 through 248; Matsushita Electric, 475 U.S. at
586.
Where opposition of the motion is based upon an
asserted dispute of material factual issue, there must be
evidence on which the trier of fact could reasonably find for
the non-moving party. 	Id at 248.
"Although if there is any evidence in the record
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from any source from which a reasonable inference in the non-
moving party's favor may be drawn, the moving party simply
could not obtain a summary judgment." 	Binder & Binder, PC v.
Barnhart, 481 F. 3d 141, 148 (2nd Cir. 2007). 	See generally,
Matsushita v. Zenith Radio Corp., 475 U.S. at 586.
In addition, Local Bankruptcy Rule 7056-1 is
applicable here. 	Subsection (d) of that rule provides, “Each
numbered paragraph in the statement of material facts
required to be served by the moving party shall be deemed
admitted for purposes of the motion unless specifically
controverted by a correspondingly numbered paragraph in the
statement required to be served by the opposing party.”
It has repeatedly been held that the opposing
party's failure to controvert any of the facts asserted in a
Rule 7056 statement or otherwise in the Motion for Summary
Judgment, the statement of facts is deemed admitted -- I'm
sorry, that the -- let me say that again.
It has repeatedly been held that the failure to
controvert any of the facts set forth in the movant's Rule
7056 statement of facts results in the deemed admission of
that statement. 	See, In re: Interbank Funding Corp., 310
B.R. 238, 254, and the cases cited therein (Bankr. SDNY
2004).
Before turning to the motion and the facts set
forth therein which, are therefore deemed admitted given that
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there has been no response to the motion, let alone a Rule
7056-1 statement filed by Mr. Milligan specifically
controverting the facts set forth in Emcore's Rule 7056-1
statement, I should note that the Plaintiff in this case, Mr.
Milligan, contends that he did not receive a copy of Emcore's
Motion for Summary Judgment, although he acknowledges, as is
clear from the record, that he was aware of the motion as
well as today's hearing on the motion, since, at his request,
the motion was adjourned, or the hearing on the motion was
adjourned, from April 26th to today's date. 	(See Docket
Entry 288.)
It is presumed, given the certificate of service
that was filed listing Mr. Milligan's correct address, that
he received service of the motion. 	See -- and I will fill in
the cite for this when I review the transcript -- In re: R.H.
Macy Company, 161 B.R. 355, 359 (Bankr. S.D.N.Y 1993)(citing
Hagner v. United States, 285 U.S. 427, 430, 52 S. Ct. 417, 76
L. Ed. 861 (1932)), In re: Dana Corporation, 2007 Bankr.
LEXIS 1934, at *13-15 (Bankr. S.D.N.Y. May 30, 2007), and In
re: Delphi Corporation, 2009 Bankr. LEXIS 571, *4-5 (Bankr.
S.D.N.Y. January 20, 2009).
As set forth in those rulings, all from this
District, the foregoing presumption is not rebutted simply by
statements that the document was not received contrary to a
certificate of service.
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Such statements are all that I have before me and,
in light of that and the foregoing case law, as well as the
fact that Mr. Milligan clearly had knowledge that there was a
pending motion for summary judgment at least from April 25,
2011, I find and conclude that he did, in fact, have the
motion and that it was served on him properly.
I know also that Mr. Milligan contends that he was
unable to respond to the motion because of his illness. 	I
accept his representations to the Court that, in fact, he has
been severely ill for some time. 	I will note, however, that
this matter also has been pending for a long time. 	The
hearing during which I ruled that this matter would be dealt
with on the evidence with regard to the issue of damages and
whether Emcore and JWP acted not in good faith in missing the
three year deadline agreed to by the parties in their
settlement agreement, that hearing occurred --
MR. MILLIGAN: 	Only by 20 years.
THE COURT: 	-- that hearing occurred on December
13, 2005. 	The record of discovery in this case is set forth
in the motion, including the Plaintiff, Mr. Milligan's,
response to Emcore's interrogatories, which response is
undated, although the interrogatories were dated August 20,
2010. 	It states that Mr. Milligan, other than relying on
common sense and Florida case law, is unable to state what
specifically JWP should have done to have completed the
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remediation within three years of the February 22, 1995 Order
approving the settlement between the parties, and implicitly
states that he's not aware of whether any specific facts
could be shown to establish that JWP did not act in good
faith in doing so.
In addition, those interrogatory answers merely
respond as “irrelevant” to Emcore's interrogatories 2 through
10, going to the elements of potential damages caused by the
failure to complete the remediation within that three year
period.
Thus, while I'm obviously sympathetic to Mr.
Milligan's health conditions, I do not believe that there's a
basis here to delay the determination of this motion in an
adversary proceeding that has been live and ready to be dealt
with through the discovery process, and then either summary
judgment or a trial, since at least February 2, 2006 when I
entered the Order memorializing my December 13, 2005 bench
ruling.
Then, turning to the merits of the motion itself,
the issues in this adversary proceeding are properly stated
by Emcore, repeating the next-to-last decretal paragraph of
my February 2, 2006 Order; that is, Plaintiff shall be
required to prove that (a) JWP's failure to clean up the
property by the deadline provided in the February 22, 1998
Order caused damages to the Plaintiffs, and (b) that the
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failure was caused by JWP's lack of good faith to clean up by
such deadline.
As was made clear at the December 13, 2005
hearing, at page 42 of the transcript, and by the disjunctive
nature of the issue that I've just read, the failure to
establish either point (a) or point (b) would result in a
judgment in favor of Emcore.
The notice of motion contains, as is required by
Local Bankruptcy Rule 7056-1, a statement of uncontroverted
facts, which are supported by the affidavits of Messrs. Long
and Barq, which I have also reviewed. 	Those three documents,
that is: the Rule 7056-1 statement, the Long declaration, and
the Barq declaration or affidavit, establish that JWP/Emcore
acted in good faith in pursuing the clean up or remediation
of the property at issue, the Philips Street property.
In particular, the 7056-1 statement states, at
paragraph 11: "There is no evidence that the Philips Street
property could have been cleaned up by February 1997, much
less the failure to clean the property by that date, was due
to JWP's lack of good faith effort to clean the property."
The Barq affidavit – although, given the fact that Mr.
Milligan did not file a controverting Rule 7056-1 statement
it is not necessary for him to rely on the Barq affidavit --
the Barq affidavit confirms the foregoing uncontroverted
assertion, not in a conclusory way, but, rather, by detailing
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the history of the clean-up through the date of the three-
year anniversary of Judge Gallet's 1995 Order.
In addition, the Plaintiffs have not stated the
amount of any damages they claim to have suffered as a result
of the failure to clean up the property by that three-year
anniversary, and, in fact, in their interrogatory answers
have stated that the issue of damages and their calculation
is irrelevant.
Given all of that, I find and conclude that Emcore
has carried its burden on its Motion for Summary Judgment and
that that motion should be granted.
So, counsel for Emcore should submit an order
consistent with my ruling at the chambers address. 	It
doesn't need to settle that order with Mr. Milligan, but it
should email him a copy of it as well as mail it to the
address on the certificate of service for the Summary
Judgment Motion.
As I said, I will add to the transcript the cites
to the Macy, Dana, and Delphi cases, since I did not know
that Mr. Milligan was going to contend that he didn't receive
the documents.
MR. MILLIGAN: 	I did not understand what you said.
THE COURT: 	I'm going to add those cites to the
transcript, since I did not have them with me here, not
knowing that Mr. Milligan was going to assert that he did not
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receive a copy of the Summary Judgment Motion.
So, Mr. Sifre, you can submit that order to
chambers as I instructed.
Dated: 	White Plains, NY
August 8, 2011
/s/Robert D. Drain
Hon. Robert D. Drain
United States Bankruptcy Judge
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