United States District Court, M.D. Alabama, Northern Division
HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE
case is before the court on a Motion for Partial Summary
Judgment filed by Defendant Scottsdale Insurance Company
(“Scottsdale”) (Doc. #20). Bureau of Protective
Services (JAT), Arthur Coleman, and Joseph Hardy (as
Principals of JAT) (collectively, “Plaintiffs”),
filed a Complaint in the Circuit Court of Montgomery County,
Alabama on January 4, 2017. (Doc. #4-2). Scottsdale timely
removed the case to this court on February 6, 2017 on the
basis of diversity jurisdiction. (Doc. #4). Plaintiffs filed
a motion to remand on February 7, 2017 (Doc. #1, 2), which
this court denied on March 16, 2017, finding that diversity
subject-matter jurisdiction was proper under 28 U.S.C. §
1332. (Doc. #14).
their complaint, Plaintiffs brought claims for a breach of
contractual duty to defend and indemnify (Count One),
negligence (Count Two), fraud (Count Three) and bad faith
(Count Four). Each count relates to an underlying case, for
which Scottsdale eventually provided a defense after
initially refusing to defend. Scottsdale now seeks summary
judgment on Claims Two, Three, and Four on the basis that the
statute of limitations has expired as to each of these three
claims. Additionally, Scottsdale seeks summary judgment as to
Plaintiffs' claim included in Count One for consequential
damages resulting from the alleged breach of Scottsdale's
duty to defend and indemnify. Finally, Scottsdale seeks
summary judgment with respect all claims that relate to
Plaintiffs Coleman and Hardy for lack of standing.
support of its Motion, Scottsdale points to Plaintiffs'
complaint, which clearly states that they discovered the
causes of action for negligence, fraud, and bad faith in
August 2012. (Doc. 4-2 at ¶¶ 17, 22, and 29).
Additionally, Scottsdale cites the two-year statutes of
limitation for each of these claims. See Ala. Code
§ 6-2-38. Plaintiffs filed their complaint on January 4,
2017. (Doc. 4-2).
August 15, 2017, this court entered an Order giving the
Plaintiff until September, 8, 2017 to respond to the
Defendant's motion, and setting the Motion for Summary
Judgment for submission on September 15, 2017. (Doc. #21).
Plaintiffs have not opposed Scottsdale's motion.
district court cannot base the entry of summary judgment on
the mere fact that the motion was unopposed, but, rather,
must consider the merits of the motion. U.S. v. One Piece
of Real Property Located at 5800 SW 74th Ave., Miami,
Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). The district
court need not sua sponte review all of the
evidentiary materials on file at the time the motion is
granted, but must ensure that the motion itself is supported
by evidentiary materials and must review all of the
evidentiary materials submitted in support of the motion for
summary judgment. Id. at 1101-02. Accordingly, the
court will review the evidentiary materials presented by the
Defendant in accordance with Rule 56 of the Federal Rules of
party asking for summary judgment "always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
'pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
' which it believes demonstrate the absence of a genuine
issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The Defendant has met
this burden by supporting its motion with citations to
the moving party has met its burden, Rule 56(e) of the
Federal Rules of Civil Procedure "requires the nonmoving
party to go beyond the pleadings and by [its] own affidavits,
or by the 'depositions, answers to interrogatories, and
admissions on file, ' designate 'specific facts
showing that there is a genuine issue for trial.'"
Id. at 324. If the adverse party does not so
respond, summary judgment, if appropriate, shall be entered
against the adverse party. Fed. R. Civ. Pro. 56(e).
failing to file any evidence in response to the Motion for
Summary Judgment, the Plaintiffs have failed to meet their
burden. Further, the court has reviewed the evidentiary
materials submitted by the Defendant and finds no question of
fact as to any material issue raised by the Defendant as
grounds for summary judgment on Counts Two, Three, and Four.
Scottsdale's legal argument relating to the claim for
consequential damages in Count One and standing as to
Plaintiffs Coleman and Hardy, Plaintiffs apparently concede
each of these points and the court finds that Scottsdale is
entitled to summary judgment on each of these claims. See
Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373
So.2d 1054, 1056 (Ala. 1979); Altrust Fin. Servs., Inc.
v. Adams, 76 So.3d 228, 245-46 (Ala. 2011).
it is hereby ORDERED that the Motion for Partial Summary
Judgment (Doc. #20) is GRANTED as to Counts Two, Three, and
Four as well as all claims of Plaintiffs Arthur Coleman and
Joseph Hardy, as principals, and any claim in Count One for
consequential damages based on breach of contract above and
beyond moneys owed under the terms of the contract.
case will proceed on Plaintiff Bureau of Protective
Services's Count ...