United States District Court, S.D. Ohio, Western Division
OPINION AND ORDER
Michael R. Barrett, Judge
matter is before the Court on: 1) Evanston's Motion for
Summary Judgment (Doc. 40) and the responsive memoranda
thereto; and 2) ClarkDietrich's Partial Motion for
Summary Judgment (Doc. 67) and the responsive memoranda
thereto. In addition, Evanston sought leave to file a
corrected reply brief in support of its motion for summary
judgment, explaining that it inadvertently failed to attach
referenced exhibits (Doc. 89); Evanston's Motion for
Leave is GRANTED.
Dietrich Building Systems, LLC (“ClarkDietrich”)
produces steel framing products used in the construction
industry. Certified Steel Stud Association
(“CSSA”) is a trade association. Its founding
members, all of whom were defendants in the underlying
lawsuit - Ware Industries, Inc. (“Ware”),
California Expanded Metal Products Company
(“CEMCO”) and Telling Industries, LLC
(“Telling”) - are competitors of ClarkDietrich.
September 2013, CSSA disseminated a publication within the
steel framing industry asserting, in part, that
ClarkDietrich's EQ-coated product line did not comply
with the International Building Code, and that contractors
who used ClarkDietrich's products could be liable. (Doc.
40-1, PageID 414-17).
response to the publication, ClarkDietrich sued CSSA, Ware,
CEMCO, and Telling in Butler County, Ohio alleging: 1)
violations of the Ohio Deceptive Trade Practices Act
(“ODTPA”) and unfair competition; 2) defamation;
3) common law disparagement; and 4) civil conspiracy. (Doc.
closing arguments, ClarkDietrich settled with Ware, CEMCO,
and Telling. (Doc. 44-2, PageID 603). In addition, before the
case was submitted to the jury, ClarkDietrich offered to
dismiss all claims against CSSA, with prejudice and with no
payment made by or on behalf of CSSA if CSSA would consent to
a stipulated dismissal of ClarkDietrich's claims. (Doc.
40-2, PageID 452). That offer was rejected. (Id.).
Following the denial of a motion to dismiss pursuant to Ohio
Civ.R. 41(A)(2) - a motion CSSA opposed - the matter
proceeded to closing arguments and was submitted to the jury.
On November 18, 2005, the jury found in favor of
ClarkDietrich and against CSSA on all of ClarkDietrich's
claims, including civil conspiracy; ClarkDietrich was awarded
$49.5 million in damages. (Doc. 1, ¶ 34).
Insurance brings the instant action pursuant to 28 U.S.C.
§ 1332 seeking a declaratory judgment against CSSA and
ClarkDietrich. Evanston asks the Court to issue a declaratory
judgment stating that Evanston has no defense or indemnity
obligation under the Evanston-CSSA insurance policy (the
“Policy”) due to CSSA's breach of the Policy.
(Doc. 1, ¶ 59).
and ClarkDietrich both move for summary judgment. (Docs. 40,
67). Because CSSA's claim is excluded under the Policy,
the Court begins and ends its analysis here.
Rule of Civil Procedure 56(a) provides that summary judgment
is proper “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.” The moving party has the
burden of showing an absence of evidence to support the
non-moving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986).
the moving party has met its burden of production, the
non-moving party cannot rest on his pleadings, but must
present significant probative evidence in support of his
complaint to defeat the motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986). These standards upon which the court evaluates
motions for summary judgment do not change simply because the
parties present cross-motions. Taft Broad. Co. v. United
States, 929 F.2d 240, 248 (6th Cir. 1991).
outset, the Court notes that while the parties engage in a
choice of law analysis, such an analysis is unnecessary
because application of either Ohio law or New York law leads
to the same result. Mecanique C. N.C., ...