United States District Court, S.D. Illinois
RICHARD A. CLARK and JENNIFER CLARK, Plaintiffs,
RIVER METALS RECYCLING, LLC, and SIERRA INTERNATIONAL MACHINERY, LLC, Defendants, SIERRA INTERNATIONAL MACHINERY, LLC, Third-Party Plaintiff,
BECKENHOUSE TRADING, LTD, CLARK SALVAGE YARD, LLC, F.LLI TABARELLI S.P.A. and THORTON AUTO CRUSHING, LLC, Third-Party Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
matter comes before the court on defendant River M s
Recycling, Inc.'s (“River M s”) Motion (Doc.
85) for Summary Judgment. Plaintiffs filed a timely response
(Doc. 86) and River M s filed Motion (Doc. 89) for Leave to
File Reply Out of Time. Also before the Court is
defendant/third-party plaintiff Sierra International
Machinery, LLC's (“Sierra”) Motion (Doc. 87)
for Joinder in Plaintiffs' Response to defendant River M
s' Motion for Summary Judgment.
matter was initially filed in the Circuit Court for the
Twentieth Judicial Circuit, St. Clair County, Illinois and
removed to this Court based on diversity. The complaint (Doc.
1-1) alleges that the plaintiff Richard A. Clark was an
employee of Thornton Auto Crushing, LLC when he was refiling
the hydraulic fluid on Sierra International Machinery car
logger/baler (“baler”) when he slipped and
fell. Plaintiffs allege that the baler was defective and had
an unreasonably dangerous condition that caused plaintiff
Richard Clark to fall and resulted in his injuries. The
complaint further alleges that River M s was the owner of the
baler and that Sierra was also the owner and/or lessor of the
Motion for Leave to File Reply Out of Time.
Rule 7.1 states that reply briefs, in any, shall be filed
within 14 days of the service of a response. It also states
that reply briefs are not favored and should be filed only in
exceptional circumstances and that the party filing the reply
brief shall state the exceptional circumstances. Plaintiffs
filed their response on April 13, 2017 and River M s'
reply was due on or before April 28, 2017.
are no exceptional circumstances stated within the reply that
would justify the delay in replying. The motion for leave
only states that, “[i]n light of concession by the
plaintiff that this case involves only strict products
liability against River M s, movant has prepared its
Reply.” (Doc. 89 at 1). The plaintiffs'
“concession” was clear in its response and a
reply, if any, should have been prepared within the time
such, River M s' Motion (Doc. 89) for Leave to File Reply
Out of Time is denied. River M s may still file a dispositive
motion, if appropriate, prior to the dipositive motion
deadline set forth in the amended scheduling order (Doc. 73).
Motion for Summary Judgment.
judgment must be granted, “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.”
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000).
The reviewing court must construe the evidence in the light
most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.
2008); Spath, 211 F.3d at 396.
initial summary judgment burden of production is on the
moving party to show the Court that there is no reason to
have a trial. Celotex, 477 U.S. at 323;
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir.
2013). Where the non-moving party carries the burden of proof
at trial, the moving party may satisfy its burden of
production in one of two ways. It may present evidence that
affirmatively negates an essential element of the non-moving
party's case, see Fed. R. Civ. P. 56(c)(1)(A),
or it may point to an absence of evidence to support an
essential element of the non-moving party's case without
actually submitting any evidence, see Fed. R. Civ.
P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25;
Modrowski, 712 F.3d at 1169. Where the moving party
fails to meet its strict burden, a court cannot enter summary
judgment for the moving party even if the opposing party
fails to present relevant evidence in response to the motion.
Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
responding to a summary judgment motion, the nonmoving party
may not simply rest upon the allegations contained in the
pleadings, but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477
U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of
material fact is not demonstrated by the mere existence of
“some alleged factual dispute between the parties,
” Anderson, 477 U.S. at 247, or by “some
metaphysical doubt as to the material facts, ”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists only if “a fair-minded jury could return a
verdict for the [nonmoving party] on the evidence
presented.” Anderson, 477 U.S. at 252.
“[i]t is, of course, well established that, as a
general matter, a district court exercising jurisdiction
because the parties are of diverse citizenship must apply
state substantive law and federal procedural law.”
Windy City M Fabricators & Supply, Inc. v. CIT Tech.
Fin. Servs., Inc., 536 F.3d 663, 670 (7th Cir. 2008)
(citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)).
As this court is ...