The amendment allows a claimant to move for a summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.
Thus in Peoples Bank v. Since Rule 12 a allows at least 20 days for an answer, that time plus the 10 days required in Rule 56 c means that under original Rule 56 a a minimum period of 30 days necessarily has to elapse in every case before the claimant can be heard on his right to a summary judgment.
An extension of time by the court or the service of preliminary motions of any kind will prolong that period even further.
In many cases this merely represents unnecessary delay. See United States v. Adler's Creamery, Inc. The changes are in the interest of more expeditious litigation. The day period, as provided, gives the defendant an opportunity to secure counsel and determine a course of action. But in a case where the defendant himself serves a motion for summary judgment within that time, there is no reason to restrict the plaintiff and the amended rule so provides.
Subdivision c. The amendment of Rule 56 c , by the addition of the final sentence, resolves a doubt expressed in Sartor v. Arkansas Natural Gas Corp. Rules Serv. Stulman-Emrick Lumber Co. It makes clear that although the question of recovery depends on the amount of damages, the summary judgment rule is applicable and summary judgment may be granted in a proper case.
If the case is not fully adjudicated it may be dealt with as provided in subdivision d of Rule 56, and the right to summary recovery determined by a preliminary order, interlocutory in character, and the precise amount of recovery left for trial. Subdivision d. The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact.
See Leonard v. Socony-Vacuum Oil Co. Oltmer Iron Works C. Since interlocutory appeals are not allowed, except where specifically provided by statute see 3 Moore, op. See also Audi Vision Inc. RCA Mfg. Toomey App. Oltmer Iron Works, supra; Catlin v. United States U. See Annot. Subdivision e. The last two sentences are added to overcome a line of cases, chiefly in the Third Circuit, which has impaired the utility of the summary judgment device.
A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matters sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. Recordgraph Corp.
Kolton v. Halpern , F. Nobles v. Ivey Bros. Pennsylvania Salt Mfg. Dennis Mitchell Industries , F. Equitable Life Assur. Society , 18 F. The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule.
See 6 Moore's Federal Practice 2d ed. It is hoped that the amendment will contribute to the more effective utilization of the salutary device of summary judgment. The amendment is not intended to derogate from the solemnity of the pleadings.
Rather it recognizes that, despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary. Nor is the amendment designed to affect the ordinary standards applicable to the summary judgment motion. Because the trustee stands in the shoes of creditors like Equity when bringing a fraudulent transfer claim, Defendants have the right to assert the same defenses to such a claim as they would if it were brought directly by Equity:.
Section of the Bankruptcy Code further provides that the trustee may recover from the transferees all property transferred in violation of the applicable law. In re Terry L. Bushey , B. The distribution of excess cash flow was expressly permitted by the terms of the Note between Equity and Defendants. Because the payment of principal at issue was not due until April 1, , there could have been no delinquency in March when the distribution of excess cash flow was made.
As such, the distribution of excess cash flow — the distribution itself, the amount of the distribution and the timing of the distribution — was clearly permitted by the Note drafted by Equity. As such, when the excess cash flow was calculated pursuant to the terms of the Note in March and the Managing Member, FSC Realty, decided to make a distribution, Defendants Woodward, Williams, Barnett, Wolfe and Fimberg became creditors of Brentwood with the same right of payment as any other general creditor.
Newberry , S. In the instant case, by suing under the Note, Equity ratified the Note and its various provisions. And by basing its various claims on the debt represented by the Note, the Trustee has ratified the Note as well. Similarly, by expressly permitting in writing the distribution of excess cash flow, Equity, and now the Trustee in its stead, have waived their right to claim that such a distribution constituted a fraudulent transfer.
City of Fort Worth , 22 S. By expressly permitting in writing the distribution of excess cash flow, Equity and the Trustee intelligently, voluntarily, and knowingly relinquished any right to use such distribution as the basis for a fraudulent transfer claim and have acted inconsistently with asserting such a claim.
In addition to the affirmative defenses of ratification and waiver, Defendants have also asserted the affirmative defense of estoppel. Texas courts have explained that there are two types of estoppel, equitable estoppel and quasi estoppel. The elements of equitable estoppel are as follows:. Stable Energy , S. Kenneco Energy , S. Here, by agreeing in the Note to allow Brentwood to make a distribution of excess cash flow, Equity falsely represented that it agreed such a distribution was permissible and concealed its intent to use such distribution as a pretext for a fraudulent transfer claim against the individual defendants who are not parties to the Note.
As set forth in the deposition of Ralph Williams, Brentwood relied upon the fact that the Note permitted the distribution of excess cash flow when it distributed funds in March Under these facts, Equity and now the Trustee are estopped from asserting that the permissible distribution of excess cash flow amounts to a fraudulent transfer.
Finally, the Trustee is estopped from asserting his fraudulent transfer claim under the doctrine of quasi estoppel. Barner , S.
As stated above, the Note drafted by Equity under which it sued Brentwood unquestionably permitted Defendants to distribute excess cash flow as that term was defined in the Note. There has been no suggestion that the distribution in March was not calculated pursuant to the terms of the Note or that it was in any way prohibited by the Note. By ridding itself of an entity it no longer wanted, and one which threatened the viability of the REIT it was forming, Equity enjoyed the benefits of the Note transaction.
See Williams Depo at pp. Equity also enjoyed the benefits of the Note transaction since it resulted in the termination of employment and consulting agreements with Defendants and eliminated valuable stock options held by Defendants.
Finally, Equity enjoyed the benefits of the Note transaction since it is unquestioned that Brentwood made, at a minimum, its April 1, payment of interest under the Note. Having enjoyed the benefits of the Note transaction, Equity, and now the Trustee, have taken the inconsistent position that the distribution of excess cash flow was not permissible, but rather, amounted to a fraudulent transfer.
Under the doctrine of quasi estoppel, it would be unconscionable to allow the Trustee to maintain these inconsistent positions. See Tex. As set forth above, the distribution of excess cash flow the Trustee now attacks as fraudulent was permitted by the terms of the Note Equity drafted.
Even more importantly, it is unquestioned that Defendants fully intended to make the April Note payment at the time the excess cash flow was distributed. Williams believe that Brentwood could make the Note payment on April 1 notwithstanding the permissible distribution of excess cash flow, but this belief was entirely reasonable.
Because the Trustee cannot demonstrate that Defendants intended to defraud Equity or any other creditors at the time it distributed its excess cash flow, or at any other time, it cannot show that it is likely to prevail on the merits of its fraudulent transfer claim and Defendants are therefore entitled to judgment as a matter of law.
Plaintiff has failed, however, to identify the alleged fraudulent transfers. In truth, the Trustee has no evidence of any such transfers and his fraudulent transfer claim should therefore be dismissed. To the extent the alleged transfers involved Defendant Myan, there is likewise no evidence of any such transfers. Simply put, Brentwood did not transfer or sell any of its assets to Defendant Myan.
With respect to the property management agreements managed by Brentwood, each of those property management contracts was subject to cancellation upon thirty days notice. Woodward Depo at p.
After their resignation, Defendants Woodward and Williams contacted the property owners for whom Brentwood was managing properties to determine whether they would like to enter into new property management contracts with Defendant Myan. Several of the property owners entered into such contracts with Myan, but many of them did not, and instead entered into property management contracts with third parties. See Woodward Depo at pp. Instead, the contracts were terminated by the property owners and, in some cases, the property owners subsequently entered into new property contracts with Myan.
The Trustee also appears to assert that Brentwood transferred or sold its employees to Myan. After the resignation of Woodward and Williams, these employees ceased working for Brentwood and later many of them took jobs with Defendant Myan.
Each of the employees was an at-will employee who had the right to either take a position with Myan upon being asked or to decline to do so. The Trustee has brought a claim for fraudulent transfer under the Bankruptcy Code seeking to avoid various allegedly fraudulent transfers. Among them is a distribution of excess cash flow occurring in March which was permitted by the express terms of the Note between Defendants and Equity.
To the extent the Trustee seeks to avoid this transfer — or any other transfers occurring earlier than September 13, , one year before Brentwood filed for bankruptcy — its claims are barred as a matter of law. The Court may take judicial notice of the fact that Brentwood filed its bankruptcy petition on September 13, As such, Defendants are entitled to judgment as a matter of law on any claims brought by the Trustee under the Bankruptcy Code for allegedly fraudulent transfers occurring before September 13, , including the alleged fraudulent transfer in March In addition, the Trustee has no evidence of an intent to defraud by Defendants.
Finally, the Trustee has no evidence of any transfers from Brentwood to Defendants other than the excess cash flow distribution mentioned above. Milton reported that he fell and hit his head on a wall when Kevin hit him. Sojo has been re-trained and agreed that Kevin will not have contact with his current foster child. Milton has been reunited with his mother as she has obtained an order of protection against her abusive husband, begun divorce proceedings, is employed, and lives in her own apartment.
Plaintiff Janna S. Rivers now has breast cancer and can no longer care for Janna. DCS plans to place Janna with a new foster family, the Jenisons. The Jenisons have cared for six foster children over the course of five years. Four children stayed with the Jenisons until they were returned to their natural families. DCS determined the two other children were incompatible 18 so they were given other arrangements.
No complaints have ever been lodged against the caseworkers on all of the above cases. In annual reviews, DCS supervisors determined that each had satisfactory job performance. Specifically, Plaintiffs have failed to demonstrate that the City or City agents violated their substantive due process rights. Municipalities cannot be held liable for the actions of third parties.
To allow the expansion of due process rights to include liability for private violence would be to expose municipalities to unending litigation. As to remaining Plaintiffs, deliberate indifference is the proper standard to determine violation of the constitutional rights of individuals in state custody. However, Defendants are entitled to summary judgment even if the court adopts the professional judgment standard because municipal liability does not cover the actions of third parties.
Furthermore, both standards require that City agents have significant notice of potential risk before finding liability for subsequent harm. Summary judgment must be granted if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.
Catrett , U. For a claim under 42 U. In this case, Plaintiffs have failed to demonstrate violation of a constitutional right, either by individual or municipal Defendants. Monell v. City of Canton v. Harris , U. This suit attempts to impose municipal liability for harm caused by third parties.
The due process clause is a limitation on state power, not a guarantee of a specific level of safety. DeShaney v. The U. Plaintiffs invoke a right to protection from all physical, emotional, and developmental harm while in state custody. Since two of the plaintiffs were injured by third parties while in foster care Compl. While federal circuits have recognized a limited right for foster children to be free from infliction of unnecessary harm while in state custody E.
Meador v. Cabinet for Human Res. City of Harker Heights , U. See also Andrea L. Finding the right to protection from all harm while in state custody would be an undue expansion of due process rights. Broadening the due process right to hold the city liable for private violence would require the city to constantly spend scarce resources defending against unwarranted litigation. Courts should not be involved in micro-managing city agencies, but instead should defer to the expertise of city officials and allow them the flexibility to use their discretion to best serve foster children.
Conner , U. Federal circuit courts have recognized only a limited right to be free from infliction of unnecessary harm while in state foster care custody. Norfleet v. Morgan , F. Supreme Court cases recognizing a similar right in other institutional contexts Estelle v. Gamble , U. Romeo , U. DeShaney , U.
One lower court cited Estelle in the foster care context. In Doe v. Youngberg involved the rights of involuntarily committed mentally disabled individuals. Youngberg , U. In Taylor v. Ledbetter , F. Taylor , F. Supreme Court subsequently issued strong statements limiting state liability in the foster care context. Be aware that federal law and individual state laws differ greatly. Know what law governs a plaintiff's particular summary judgment motion. Explain the facts of the case.
In the motion request itself, list the supporting facts and court rules in numbered, short sentences. End the motion with a prayer for relief. A prayer for relief is a short paragraph that requests the particular relief the plaintiff seeks. Begin the prayer for relief with the word, "Wherefore. Write the brief.
0コメント