IN MATTER OF SLANDA (Bankr.E.D.Mich. 12-14-2010)

In the matter of: MARY ANN SLANDA, Chapter 7, Debtor. P J UTICA HEIGHTS, LLC, Plaintiff, v. MARY ANN SLANDA, Defendant.

Case No. 10-40980, Adv. Pro. No. 10-5709.United States Bankruptcy Court, E.D. Michigan, Southern Division.
December 14, 2010

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THOMAS TUCKER, Bankruptcy Judge

This adversary proceeding is before the Court on Defendant’s motion for summary judgment (Docket # 11, the “Motion”). On December 6, 2010, the Court entered an order regarding the Motion (see “Order Regarding Defendant’s Motion for Summary Judgment” (Docket # 21)), which provides, in relevant part:

IT IS ORDERED that Defendant must file a reply brief in support of her motion for summary judgment (Docket # 11) no later than Friday, December 10, 2010.
The Court has scheduled, by separate notice, a hearing for December 15, 2010 at 10:00 a.m. on the summary judgment motion.

Defendant did not file a reply brief by the December 10, 2010 deadline, and to date, has not filed a reply brief.

The Court now concludes that a hearing on the Motion is not necessary, and the Court will deny the Motion for the following reasons.

Page 2

First, the Defendant failed to file a reply brief as required by the Court’s December 6, 2010 Order.

Second, the Motion is not “properly supported” within the meaning of former Fed.R.Civ.P. 56(e)(2), made applicable to adversary proceedings by Fed.R.Bankr.P. 7056.[1] It contains no citations to particular parts of the record or to any pertinent materials in the record, no affidavits, and no other evidentiary material. The Motion also fails to adequately discuss the applicable law.

Third, the Court concludes in any event, from reviewing the Plaintiff’s response to the Motion and its supporting exhibits (Docket # 15), that there are genuine issues of material fact that preclude summary judgment for Defendant.

For these reasons,

Page 3

IT IS ORDERED that:

1. The Motion (Docket # 11), is DENIED.
2. The hearing on the Motion, currently scheduled for December 15, 2010 at 10:00 a.m., is CANCELLED.

The hearing on the other matters currently scheduled for December 15, 2010 at 10:00 a.m. will go forward (show cause order; control trial date).

Signed on December 14, 2010

[1] The Court has applied the former version of Fed.R.Civ.P. 56, which was in effect when the Motion was filed. However, the result would be the same under the amended version of Fed.R.Civ.P. 56(c)(1), which became effective December 1, 2010. It provides, in relevant part:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.