United States District Court, E.D. Michigan, Southern Division
SURGICAL CENTER OF SOUTHFIELD, LLC d/b/a FOUNTAINVIEW SURGERY CENTER Brian Slating, Plaintiffs,
v.
ALLSTATE INSURANCE COMPANY, Defendant.
Mona
K. Majzoub United States Magistrate Judge.
OPINION AND ORDER GRANTING DEFENDANT ALLSTATE
INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND
REQUEST FOR FEES AND COSTS (ECF #12)
Paul
D. Borman United States District Judge.
I.
FACTS
Before
the Court is Defendant Allstate Insurance Company's
(“Allstate”) Motion for Summary Judgment and
request for sanctions against Plaintiff Surgical Center of
Southfield, LLC d/b/a Fountain View Surgery Center
(“Fountain View”). Allstate also requests an
award of fees and costs under 28 U.S.C. § 1927.
On
March 14, 2019, Fountain View filed this action to recover
$236, 307.48 for services provided to Mr. Brian Slating on
February 28, 2019, alleging, inter alia, that
Allstate had failed to timely pay Fountain View in violation
of Michigan's No- Fault Act, M.C.L. § 500.3101,
et seq. (“March Complaint” or
“March Lawsuit”). (ECF #1, Notice of Removal.)
Plaintiff filed the Complaint in Wayne County Circuit Court,
which Allstate removed to federal court. Fountain View
alleged in the March Complaint that it had provided proof to
Allstate that it was entitled to payment “more than 30
days ago, ” but also that the services had been
rendered to Mr. Slating only 14 days prior, on February 28,
2019. (ECF #1-2, Compl., PgID 14.)
On
April 26, 2019, Fountain View, represented by counsel other
than who had filed the March Complaint, filed a nearly
identical complaint against Allstate in Wayne County Circuit
Court seeking payment of the same $236, 307.48 for services
provided to Mr. Slating on February 28, 2019. See
Surgical Center of Southfield, LLC d/b/a Fountain View
Surgery Center, PLLC v. Allstate Property and Casualty
Insurance Company, 2:19-cv-11458-GAD-APP (E.D. Mich.
2019), ECF # 1 (“April Lawsuit”). Allstate has
incurred the cost of removing and defending the April Lawsuit
as well.
On May
17, 2019, Counsel for Allstate, Jaquelyn McEttrick, contacted
Counsel for Fountain View who had filed the March Complaint,
Mark Gaugier, to request dismissal of one of the identical
complaints. (ECF #12-3, Affidavit of Jacquelyn A. McEttrick,
June 4, 2019, PgID 136-137.) Gaugier responded in an email on
May 17, 2019, stating "I was just informed yesterday
that [the April Lawsuit counsel] are going to be handling
this file and forgot when I saw your email. We can stipulate
to dismiss this case as it will be handled by [the April
Lawsuit counsel's] office from here on out."
(Id.)
The
Docket of the March Lawsuit reflects that three days later,
on May 20, 2019, Plaintiff Co-Counsel Ronald
Puzio[1] attempted to electronically file a Request
for Substitution of Counsel, instead of a stipulation of
dismissal. (Id.) (See also ECF #11, May 20,
2019.) The Request filed by Puzio was stricken for failure to
follow electronic filing guidelines. (Id.) Counsel
for Allstate stated that she has contacted Gaugier at least
five times since Puzio improperly filed the Request for
Substitution of Counsel on May 20, 2019, but Fountain View
has failed to dismiss the matter as discussed. (Id.)
Fountain
View has not responded to Allstate's Motion for Summary
Judgment. In its Motion, Allstate also requests reimbursement
of $2, 000 of the $2, 900 in sanctions and/or costs and fees
incurred related to the duplicative and unprosecuted March
Lawsuit, pursuant to Federal Rule of Civil Procedure 11 and
28 U.S.C. § 1927. (ECF #12-1, Def.'s Mot., PgID
126-27.)
II.
STANDARD OF REVIEW
Summary
judgment is appropriate where the moving party demonstrates
that there is no genuine dispute as to any material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Fed.R.Civ.P. 56(a). A fact is “material”
for purposes of a summary judgment motion where proof of that
fact “would have [the] effect of establishing or
refuting one of the essential elements of a cause of action
or defense asserted by the parties.” Midwest Media
Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 469
(6th Cir. 2007) (quoting Kendall v. Hoover Co., 751
F.2d 171, 174 (6th Cir. 1984)). A dispute over a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
“Rule
56(e) identifies affidavits, depositions, and answers to
interrogatories as appropriate items that may be used to
support or oppose summary judgment.” Alexander v.
CareSource, 576 F.3d 551, 558 (6th Cir. 2009). “Of
course, [the moving party] 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.” Taft Broadcasting Co. v. United
States, 929 F.2d 240, 247 (6th Cir. 1991) (internal
quotation marks omitted) (quoting Celotex, 477 U.S.
at 323). If this burden is met by the moving party, the
non-moving party's failure to make a showing that is
“sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial, ” will mandate
the entry of summary judgment. Celotex, 477 U.S. at
322. “[A] complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Id. at 323.
“The
test is whether the party bearing the burden of proof has
presented a jury question as to each element in the case. The
plaintiff must present more than a mere scintilla of the
evidence. To support his or her position, he or she must
present evidence on which the trier of fact could find for
the plaintiff.” Davis v. McCourt, 226 F.3d
506, 511 (6th Cir. 2000) (internal citations and quotation
marks omitted). The non-moving party may not rest upon the
mere allegations or denials of his pleadings, but the
response, by affidavits or as otherwise provided in Rule 56,
must set forth specific facts which demonstrate that there is
a genuine issue for trial. Fed.R.Civ.P. 56(e). “When
the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586- 587 (1986)
(footnote and internal quotations omitted).
III.
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