United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE
Queen City Maintenance, Inc., has filed a Motion for Summary
Judgment or Partial Summary Judgment pursuant to Federal Rule
of Civil Procedure 56. (Doc. 40.) The motion seeks summary
judgment against Defendants Maincore Management, LLC
(“Maincore”) and Action Time USA, Inc.
(“Action Time”). (Id. at 1-2.) Plaintiff
has filed a brief in support thereof, (Doc. 41), and
Defendants Maincore and Action Time have filed a response,
(Doc. 47). Plaintiff did not reply, and the matter is now
ripe for ruling. For the following reasons, this court finds
that Plaintiff's motion should be denied and the matter
referred for a Rule 26(f) conference and discovery.
originally filed its complaint in the Superior Court of
Guilford County, North Carolina. (See Doc. 3.) Defendant
Wal-Mart Stores, Inc. (“Walmart”) removed the
case to this court. (See Doc. 1.) Plaintiff subsequently
dismissed its claims against Walmart with prejudice. (Doc.
12.) The remaining defendants, Maincore, Action Time, Daniela
Stanislawek Perkins, and Daniel Stanislawek (collectively
“Defendants”) filed an answer. (Doc. 16.)
Thereafter, Defendants filed a third-party complaint, (Doc.
18); that third-party complaint was later dismissed without
prejudice, (Doc. 51).
Initial Pretrial Conference was previously set, (see Doc.
17), but continued at the request of the parties, (see, e.g.,
Doc. 23). Discovery was ultimately stayed at the parties'
request, (see Doc. 32), pending a ruling upon a forthcoming
motion to dismiss by third-party defendants, (Doc. 33).
Because third-party defendants have been dismissed from this
case, (see Doc. 51), there is no forthcoming ruling on their
motion to dismiss, and the stay is now moot. In the interim
between that stay and that dismissal, and prior to the entry
of any discovery schedule, Plaintiff filed the instant motion
for summary judgment. (Doc. 40.)
judgment is appropriate when the court determines that there
remains “no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). And
“the inferences to be drawn from the underlying facts .
. . must be viewed in the light most favorable to the party
opposing the motion.” United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962) (per curiam).
factual dispute is genuine when “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); see also First Nat'l Bank of Ariz.
v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968) (stating
that a dispute is not genuine for summary judgment purposes
when one party rests solely on allegations in the pleadings
and does not produce any evidence to refute alternative
arguments). This court must look to substantive law to
determine which facts are material - “[o]nly disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 248.
argues summary judgment is appropriate as to Maincore and
Action Time because the Affidavit of Maya I. Tsekova,
President of Queen City Maintenance, (Doc. 40-1); the
Verified Complaint, (Doc. 3); and the Answer by Defendants
Maincore and Action Time, (Doc. 16), all establish that these
Defendants are liable to Plaintiff for monies owed for
services rendered by Plaintiff, (see Doc. 41 at 4-5). While
the Complaint and Affidavit of Ms. Tsekova appear to
establish liability of Defendants to Plaintiff, this court
does not find that the Answer admits liability so clearly as
Plaintiff contends. Instead, this court finds that there are
issues of fact which require that this case proceed to
discovery. For example, Defendant Daniel Stanislawek's
Declaration, submitted in opposition to Plaintiff's
motion, states that Plaintiff's invoices are overstated.
(Doc. 48 ¶¶ 5-29.) Defendant Stanislawek further
states that he anticipates further reductions to the amounts
allegedly owed based upon continued investigation and
discovery. (Id. ¶ 29.)
court therefore finds that there does exist a genuine issue
of material fact as to the amounts allegedly due Plaintiff
and, as a result, Plaintiff's motion for summary judgment
should be denied.
IS THEREFORE ORDERED that Plaintiff's Motion for
Summary Judgment or Partial Summary Judgment, (Doc. 40), is
IS FURTHER ORDERED that the stay of discovery
previously entered, (Doc. 32), is
IS FURTHER ORDERED
within 14 days of the entry of this Memorandum Opinion and
Order, the parties shall submit a Supplemental Rule 26(f)
Report as set out in the December 13, 2017 Order. (Doc. 32.)
COURT FURTHER DIRECTS
the event the parties are no longer able to agree upon a Rule
26(f) Report, as evidenced by the failure to submit an
agreed-upon Supplemental Rule 26(f) Report, the Clerk ...