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Bruce Kerner, et al v. Eti Environmental

November 9, 2011


The opinion of the court was delivered by: Judge Peter C. Economus


This matter is before the Court for consideration of Defendant Omni Group, Inc.'s ("Omni") Motion for Summary Judgment. (Doc. # 67.) In response, Plaintiffs Bruce and Mindy Kerner filed a memorandum in opposition (doc. # 73), to which Omni filed a reply (doc. # 75). Omni's motion seeks judgment from this Court on Plaintiffs' remaining claim of breach of contract. For the following reasons, this Court GRANTS Defendant's motion.


This diversity action arises out of a dispute between Plaintiffs and Omni over the cleanup and storage of the Plaintiffs' personal property following a pesticide contamination caused by Terminex International. (First Am. Compl., doc. # 15-1, & 9.) There is no dispute that Plaintiffs and Omni entered into a contract for the inventory, clean-up/disposal, and storage of Plaintiffs' personal property ("the Contract"). (See First Am. Compl., Exh. A., doc. # 15-3; Mot. for Summ. J., Exh. A, doc.# 67-1.) In addition to the Contract, Plaintiffs attached to the complaint a letter from Plaintiff Bruce Kerner to Dr. Robert Simon*fn1 , and Plaintiffs claim that this letter forms an "addendum" to the Contract.

Under the Contract, Plaintiffs agreed to pay Omni $15,000 for the work outlined in the Contract. In addition, they agreed to pay $500 per month for storage of their property, after an initial two-month period. Plaintiffs paid the monthly storage fee through May of 2006, but there is no dispute that they have not paid any storage fees since that time. Omni is still in possession of Plaintiffs' personal property.

In their breach of contract claim, Plaintiffs allege as follows:

[Omni] breach the terms of the written agreement when they failed to (1) "clean" each and every possible personal possession and/or property of Plaintiffs that could be cleaned; (2) maintain an accurate photographic inventory log of disposed items; (3) timely return Plaintiffs' cleaned personal possessions and/or property; (4) sold, for [Omni's] profit, Plaintiffs' personal possessions and/or property that was to be cleaned or disposed of; (5) failed to maintain disposal manifests for property disposed of in landfills[;] and (6) failed to obtain the consent of Plaintiffs for the disposal of specific valuable items of personal property, both monetary and sentimental, with the Plaintiffs prior to disposing same. (First Am. Compl., & 31.) In its Motion, Omni asserts that summary judgment is appropriate for two reasons: (1) Plaintiffs cannot establish a prima facie case for their breach of contract claim, and (2) Omni's further performance under the contract is excused. (Motion, page 3.) In support of its Motion, Omni offers the following Fed.R. Civ.P. 56 evidence: the Contract, deposition testimony of Dr. Robert Simon, Dennis Markferding, Mindy Kerner, Bruce Kerner, and the affidavit of Dennis Markferding. (Motion, Exhs. A, B, C, D, E, F, G, docs # 67-1 through 7.) In support of their memorandum in opposition, Plaintiffs offer the Contract, a letter from Plaintiff Bruce Kerner to Dr. Simon, a letter from David J. Young to Dr. Simon, a letter from Kendra S. Sherman to Dr. Simon, and two appraisals of the Plaintiffs' personal property. (Mem. In Opp., Exhs. A, B, C, D, E, F, docs. # 73-1 through 6.)

II.Standard of Review

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R. Civ.P. 56(c). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 323-25. Once the movant meets this burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ.P. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleading or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the non-moving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

"In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party." Williams v. Belknap, 154 F.Supp.2d 1069, 1071 (E.D. Mich. 2001) (citing 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)). However, "'at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter,'" Wiley v. U.S., 20 F.3d 222, 227 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 249); therefore, "[t]he Court is not required or permitted . . . to judge the evidence or make findings of fact." Williams, 154 F.Supp.2d at 1071. The purpose of summary judgment "is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried." Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F.Supp.2d 928, 930 (S.D. Ohio 1999). Ultimately, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52; see also Atchley v. RK Co., 224 F.3d 537, 539 (6th Cir. 2000).


In their First Amended Complaint, Plaintiffs state multiple claims for relief, but their breach-of-contract claim against Omni is the only one remaining after this Court's grant of two motions to dismiss filed by all defendants. (See Order, doc. # 54.) Plaintiffs allege that Omni failed to meet the terms of the Contract-a document indisputably an agreement between the parties for work to be performed for a sum certain-and the terms of an "addendum," which is a letter from Plaintiff Bruce Kerner to Dr. Robert Simon ("the Letter"). (Mem. In Opp., pages 2 -- 4, Exh. B, also attached to First Amended Complaint as ...

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