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ROUNDS v. REA

November 26, 1996

ADRIANNE M. ROUNDS, Plaintiff,
v.
ROBERT REA, GRAND RIVER TRANSPORTATION, INC., MUSIAL LEASING, INC., and RUSH TRUCK LEASING, Defendants.



The opinion of the court was delivered by: FOSCHIO

DECISION and ORDER

 JURISDICTION

 The parties to this matter executed a consent to proceed before the undersigned on November 22, 1995. The matter is presently before the court on Defendants' motion for summary judgment, dated July 19, 1996; Defendants' motion for a protective order, dated August 7, 1996; and, Plaintiff's motion to amend the complaint, dated August 30, 1996.

 BACKGROUND

 Plaintiff, Adrianne M. Rounds, filed this diversity action on June 21, 1995 alleging serious personal injuries based on an automobile accident which occurred on January 21, 1994 in Pennsylvania. Plaintiff is a resident of New York. Defendant Rea is an Ohio resident. Defendants Grand River Transportation and Musial Leasing, Inc. are Ohio corporations. Defendant Rush Truck Leasing is a Michigan corporation.

 On July 19, 1996, Defendants filed a motion for summary judgment seeking dismissal of the action based on a lack of personal jurisdiction, along with a memorandum of law. Thereafter, on August 7, 1996, Defendants filed a motion for a protective order seeking a stay of discovery pending disposition of the summary judgment motion.

 On August 30, 1996, Plaintiff filed a motion to amend the complaint seeking to amend the name of Defendant Rush Truck Leasing to Rush Trucking Corporation; to add a paragraph to the complaint regarding ยง 5102 of New York State Insurance Law, and to add a paragraph as to personal jurisdiction in New York. On the same day, Plaintiff filed four affidavits seeking to establish the presence of Rush Trucking in New York as a common carrier, and additionally stating that Rea, contrary to his assertion, had been driving in New York prior to the accident. Plaintiff also filed an opposing memorandum of law. On September 3, 1996, Defendants filed a reply memorandum.

 Oral argument on the motion was deemed unnecessary.

 For the reasons as set forth below, Defendants Rea, Grand River Transportation, and Musial Leasing's motion for summary judgment is GRANTED; Defendant Rush Trucking's motion for summary judgment is DENIED; Plaintiff's motion to amend the complaint is GRANTED as to Rush Trucking only; and, Defendants' motion for a protective order is DISMISSED as moot.

 FACTS

 On January 21, 1994, Plaintiff Adrianne Rounds was traveling from her home near Falconer, New York to her place of employment, Warren General Hospital, Warren, Pennsylvania. Plaintiff, driving a 1984 Chevrolet pickup truck, was traveling in a southerly direction on U.S. Route 62.

 As Plaintiff approached the intersection of U.S. Route 62 and Jackson Run Road near the Town of Conewango in Pennsylvania, the traffic signal turned red. Plaintiff's vehicle stopped at the intersection, and was immediately struck in the rear by a tractor-trailer driven by Defendant Robert Rea. According to Defendants, after the accident, Plaintiff, a nurse, proceeded to work at the Warren hospital, while Plaintiff states that she went to the hospital room emergency room for treatment, and became unable to work as a result of the collision.

 At the time of the incident, Rea was employed by Defendant Musial Leasing, Inc. Musial Leasing, which is in the business of leasing trucks, had leased the tractor-trailer involved in the accident to Defendant Rush Trucking. Rea was driving the tractor-trailer on behalf of Musial Leasing. A principal of Musial Leasing, Andy Musial, is a shareholder in Defendant Grand River Transportation.

 According to Plaintiff, she first observed Rea's truck while driving in New York prior to the collision. However, Rea contends that he had not been driving in New York that day, and only had been driving in Pennsylvania. Plaintiff also asserts that Rush Trucking does regular business in New York through its business with the General Motors Tonawanda Engine Plant in Tonawanda, New York, and that Rush Trucking also has designated an agent for service of process in New York. No contacts with New York have been alleged for either Musial Leasing or Grand River Transportation.

 DISCUSSION

 Summary judgment will be granted pursuant to Fed.R.Civ.P. 56 when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The party moving for summary judgment bears the burden of establishing the nonexistence of a genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain summary judgment. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985).

 The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual ...


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