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Sterett Crane & Rigging, LLC v. White Construction Inc.

United States District Court, S.D. Indiana, Indianapolis Division

March 31, 2017

STERETT CRANE AND RIGGING, LLC, Plaintiff,
v.
WHITE CONSTRUCTION, INC., Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge.

         Plaintiff Sterett Crane and Rigging, LLC (“Sterett”) is a limited liability corporation in the business of renting cranes for use on construction projects. Defendant White Construction, Inc. (“White”) is a corporation engaged in providing construction services for various wind farm projects across North America. On April 17, 2014, White and Sterett entered into a Service Agreement for the rental of a Terex Demag 2800 660-ton crawler crane (the “Crane”) for White's use at the Headwaters Wind Farm Project in Winchester, Indiana (the “Project”). Sterett initiated this litigation against White, alleging that it breached the terms of the Service Agreement when the Crane was damaged while moving from one site of the Project to another and was not returned to Sterett in as good of a condition as it was when White received the Crane.

         Presently pending is a Motion for Partial Summary Judgment filed by Sterett, which relates only to its breach of contract claim. [Filing No. 52]. Also pending is a Motion for Oral Argument on Sterett Crane & Rigging, LLC's Motion for Partial Summary Judgment filed by White, [Filing No. 68][1], and a Motion for Leave to File Surreply in Opposition to Plaintiff's Motion for Partial Summary Judgment filed by White, [Filing No. 72].

         I.

         Motion for Leave to File Surreply

         Before analyzing the parties' substantive arguments in connection with the Motion for Summary Judgment, the Court will consider White's Motion for Leave to File Surreply. [Filing No. 72.] This is necessary because the motion relates to the scope of information that the Court could consider in deciding the Motion for Summary Judgment.

         In support of its motion, White argues that Sterett objected to the admissibility of evidence White relied upon in its response brief because it is impermissible parol evidence, so a surreply is appropriate. [Filing No. 72 at 1.] White also contends that it should be permitted to “rebut the argument that the Court should not consider White's sworn affidavits and testimony as ‘self-serving'….” [Filing No. 72 at 2.]

         Sterett argues in response to White's motion that it did not argue in its reply that the parol evidence at issue is inadmissible, but only that it is not material or relevant, and is “barred from consideration by the integration clause that is part of the contract…between the parties.” [Filing No. 73 at 2.] Sterett also asserts that its argument regarding White's affidavit being self-serving is not about admissibility, but rather is that the affidavits are “immaterial because they are so vague and ambiguous that they cannot create an issue of fact.” [Filing No. 73 at 2.]

         On reply, White argues that relevancy and materiality relate to the admissibility of evidence, so its surreply should be permitted to address the parol evidence. [Filing No. 74 at 1.]

         Local Rule 56-1(d) permits the filing of a surreply “only if the movant cites new evidence in the reply or objects to the admissibility of the evidence cited in the response.” The Court rejects White's argument that Sterett objects to the admissibility of the parol evidence in its response brief. Rather, Sterett argued in its response that the Court should not consider the parol evidence because the Service Agreement “was fully integrated.” [Filing No. 70 at 7.] Whether evidence is admissible under the Federal Rules of Evidence and whether the Court should consider evidence based on a contract's integration clause are distinctly different concepts, and White cannot address the latter in a surreply. The Court also notes that Sterett argued in its initial brief in support of its Motion for Summary Judgment that the Court should look to the language of the contract and that if an “ambiguity arises because of the language used in the contract and not because of extrinsic facts, then [the contract's] construction remains a pure question of law to be determined by the Court.” [Filing No. 53 at 6.] White had ample opportunity to address whether the Court should look outside of the contract in its response brief and, indeed, did so. [See, e.g., Filing No. 67 at 12 (arguing that the Court should consider parol evidence since the parties “agreed to oral terms outside of the written documents”).]

         The Court also rejects White's characterization of Sterett's argument that White presented “self-serving” affidavits as one related to admissibility. Sterett argues in its reply that “self-serving” evidence should not be considered and “cannot preclude summary judgment.” [Filing No. 70 at 9 (quotation and citation omitted).] It does not, however, argue that the evidence is inadmissible.

         The Court DENIES White's Motion for Leave to File Surreply in Opposition to Plaintiff's Motion for Partial Summary Judgment, [Filing No. 72], because it addresses matters that are not within the scope of Local Rule 56-1(d).

         II.

         Motion for Summary Judgment

         A. Standard of Review

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. SeeFed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact ...


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