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
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 MOTIONS GENERALLY
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
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
"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.
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 ...