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January 13, 2004.

Milo Glass and Jerolene Glass, Plaintiffs Crimmins Transfer Company, United Van Lines, and Quad City Moving Co., Defendants

The opinion of the court was delivered by: JOHN GORMAN, Magistrate Judge


The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the court are three motions for summary judgment one by each defendant, as well as a motion to strike the defendants" reply briefs. The motions are fully briefed and the court has carefully considered the matters discussed therein. For the following reasons, two of the motions for summary judgment are allowed and one motion for summary judgment is allowed in part and denied in part. The motion to strike is denied.


  In the motion to strike, plaintiffs argue that the reply briefs were untimely. Plaintiffs fail to take into account the exclusion of weekends and other non-business days in calculating the date on which the reply briefs were due. In addition, the Local Rules of this court do solicit reply briefs as part of the briefing schedule in summary judgment motions. There is a purpose for the reply brief, especially in cases such as this one that present rather novel issues of law, replies assist the court in ruling on motions based on the merits. In a hotly disputed case such as this one, the 10 days would, in all likelihood, have been Page 2 extended by a day or two had the replies actually been late. I see no prejudice to the plaintiffs and the delay in this situation has caused no difficulty for the court. For both of those reasons, the motion to strike is denied.


  Summary judgment is appropriate if all evidence submitted shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., 55 F.3d 1304, 1308 (7th Cir. 1995). In ruling on a summary judgment motion, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the non-movant, Erdman v. City of Ft. Atkinson, 84 F.3d 960, 961 (7th Cir. 1996); Vukadinovich v. Bd. of Sch. Trustees, 978 F.2d 403, 408 (7th Cir. 1992), cert. denied, 510 U.S. 844 (1993); Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir. 1990); DeValk Lincoln-Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987); Bartman v. Allis Chalmers Corp., 799 F.2d 311, 312 (7th Cir. 1986), cert. denied, 479 U.S. 1092 (1987), and construing any doubts against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Trotter v. Anderson, 417 F.2d 1191 (7th Cir. 1969).

  If the facts indicate that no reasonable jury could find for the party opposing the motion, then summary judgment must be granted. Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995), citing Anderson, 477 U.S. at 248. 1995). If the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party and on which that party will bear the burden of proof at trial, then summary Page 3 judgment is proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waldridae v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In other words, a plaintiff may not simply rest on allegations without significant probative evidence tending to support the complaint. First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(when the moving party has met its burden, non-moving party must do more than show some "metaphysical doubt" as to material facts). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250.

  The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587(1986). On a motion for summary judgment, the moving parties must first identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the parties believe demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving parties have met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

  In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The existence of Page 4 "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst & Young. L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).


  The following facts are taken from the parties' statements of undisputed facts, the responses thereto, and the documentary evidence submitted by the parties, unless otherwise noted.

  In 1995, the plaintiffs began preparing for a move from Iowa to Florida. As part of the preparation, they arranged for United Van Lines ("United") to facilitate the move. United designated Crimmins Transfer Company ("Crimmins") as its agent for transportation and related moving services. On September 7, 1999, a group of buyers, calling themselves Quad Cities Moving and Storage entered into an asset purchase agreement with Crimmins. Then, on November 5, 1999, Quad Cities Moving and Storage Inc. ("QCMS") incorporated under the laws of Illinois.

  In May and June of 1995, Crimmins packed some of plaintiffs' personal property and moved it to a storage facility in Illinois. Additional items were packed and stored in October of 1997. This personal property was to be stored at Crimmins' warehouse until the plaintiffs' new home in Florida was completed; the property was then to be transported to Florida. In May of 1998, a flood occurred at the warehouse. The stored items became wet and then later developed mold, mildew and fungus. Page 5

  On about September 16, 1999, United retrieved the stored items and moved them to plaintiffs' new Florida residence, where the property was delivered on September 24, 1999. Shortly after the movers began unloading the truck in Florida, plaintiff Jerolene Glass noticed the smell and saw water damage on the furniture. Nearly all the furniture and accessories was either damaged or destroyed by the mold and mildew.

  A Crimmins/Quad City employee, Tim Tallman, who assisted in loading the property onto the truck in Illinois and off the truck in Florida noticed (and documented on the inventory) a "musty, mildew odor" and mildew damage on some of the items. Jennifer Hagar, a manager for Crimmins and a vice president of QCMS until June of 2001, knew about the Glasses' claim for damages to their property before closing the purchase of Crimmins by QCMS. In addition to the obvious property damage, plaintiffs allege that numerous health problems have resulted from the molds.

  The Glasses filed this suit against Crimmins, United and QCMS, seeking compensation for their property damage, emotional distress, and physical injury. Count I alleges breach of contract against Crimmins, and Count II alleges breach of contract by QCMS as successor in interest to Crimmins. Count III alleges fraudulent concealment by Crimmins and QCMS. In Count IV, plaintiffs allege fraudulent concealment against QCMS and Crimmins, seeking punitive damages. Counts V and VI allege negligence resulting in personal injury to the two plaintiffs. Count VII alleges that United violated the Carmack ...

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