Opinion
No. 04 Civ. 143 (SHS).
February 28, 2005
OPINION ORDER
Plaintiff has moved for summary judgment against all defendants pursuant to Fed.R.Civ.P. 56 on the grounds that the parties have agreed to a settlement, but that defendants have breached that agreement by failing to pay the agreed upon amount. Defendants failed to respond to plaintiff's motion for summary judgment prior to the return date, and, in a conference call between all parties and the Court subsequent to the return date, stated that they did not intend to respond. Plaintiff's motion is granted on the merits, because the parties reached a settlement agreement that defendants have failed to honor.
Fed.R.Civ.P. 56(e) specifically provides that if a non-moving party fails to respond to a motion for summary judgment, then "summary judgment, if appropriate, shall be entered against" it. However, the United States Court of Appeals for the Second Circuit has determined that "[e]ven when a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law." Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004). Specifically, the Second Circuit interpreted the "if appropriate" clause in Rule 56(e) to require the district court to "first examin[e] the moving party's submission to determine if it has met its burden of demonstrating that no genuine issue of material fact remains for trial" before granting summary judgment. Id. at 244 (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)). If the moving party fails to meet its burden of production, then "`summary judgment must be denied even if no opposing evidentiary matter is presented.'" Id. (quoting Amaker, 274 F.3d at 681) (internal quotation marks and emphasis omitted). The Court must be satisfied that evidence exists in the record to support the movant's position that it is entitled to judgment as a matter of law. Id.
Upon consideration of the facts in this record, it is evident that the parties reached a settlement agreement that required defendants to pay $350,000 to plaintiffs. This action was set for trial on January 10, 2005. Plaintiff's counsel, Harold M. Kingsley, requested an adjournment of the trial in a letter to the Court that stated, "We are pleased to advise that all parties have agreed to a settlement of this case." (Letter to the Court dated December 20, 2004). Defendants' attorneys received copies of that letter (see id.) and did not interpose any objection to the representation that the parties had reached a settlement of the action. The record also contains an affirmation of Kingsley, dated January 26, 2005, in support of plaintiff's motion for summary judgment that provides as follows: "With the case set to proceed to trial, defendants Cosco H.K. Shipping Co. Ltd., Montario Shipping Corp. S.A., Luen Yick Shipping Co. S.A., and Western Bulk Carriers K/S agreed to settle plaintiff's claim for $350,000.00, to which plaintiff agreed, and the trial was adjourned." (See Affirmation of Harold M. Kingsley in Support of Pl.'s Mot. for Summ. J. on Settlement ¶ 3). There is no evidence in this record to the contrary. Thus, the record contains sufficient and uncontroverted evidence that a settlement in the amount of $350,000 was reached by the parties.
Accordingly, plaintiff has met its burden of production and there is no genuine issue of material fact with respect to the existence and amount of the settlement. The Clerk of the Court shall enter summary judgment in favor of plaintiff in the amount of $350,000.
SO ORDERED.