identical pricing be given to each of Siemans' distributors.
Turning to defendant Stanley's defenses, Stanley first claims that
Siemans has offered insufficient evidence upon which a reasonable jury
would have to conclude that Stanley Coleman was liable on a personal
guaranty. Specifically, Stanley challenges the adequacy of the two
affidavits offered in support of Siemans' motion for summary judgment.*fn2
This defense too is without merit.
Despite defendant Stanley's contention that the plaintiff's moving
papers and affidavits fail to support a motion for summary judgment for
lack of sufficiency of the evidence, the movant on a summary judgment
motion is not required to submit affidavits in support of a motion for
summary judgment. The Supreme Court has held that there is no "express or
implied requirement in Rule 56 that the moving party support its motion
with affidavits or other similar materials negating the opponent's
claim." Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 2553 (1986). Here, plaintiff has submitted sufficient evidence in
the form of the personal guaranties and plaintiff's Rule 56.1 statement
to satisfy its burden of proof as movant on a motion for summary
judgment. See Fed.R.Civ.P. 56(c). In addition, defendant Stanley admits
to signing the guaranty, to the fact that Siemans demanded payment on the
guaranty, and to the fact that Stanley refused to pay. Stanley also
admits to Coleman's indebtedness in the amount of $80,000 — the
amount owed to Siemans at the time Stanley left the company. Equally as
significant is the fact that neither defendant Coleman nor defendant
William deny or dispute the guaranty obligation or Coleman's indebtedness
for some amount to Siemans. In fact, defendants Coleman and William admit
to an "indeterminate" indebtedness to Siemans. See Def. Coleman and
William Mem. of Law in Opp. To Pl. Mot. For Sum. J., p. 2. Moreover, at
no point did the indebtedness of Coleman to Siemans fall below $75,000.
Accordingly, the debt and loan obligation can be deemed to have been
established such that no reasonable jury could conclude other than that
Coleman and the individual brothers are liable to Siemans — Coleman
for an indeterminate amount and the brothers for $75,000 each. Plaintiffs
having satisfied their burden of proof on a motion for summary judgment,
the burden then shifts to the non-movant to raise a genuine issue of
material fact which would warrant continuation of the action. See
Fed.R.Civ.P. 56(e). Although having had ample opportunity to review
Siemans' records, defendant Stanley has chosen to rely on the alleged
insufficiencies in Siemans' proof. At this point, Stanley's position
begins to smack of delaying tactics.
Stanley, through his opposition papers, next claims that there are, in
fact, genuine issues of material fact in the form of an alleged
conspiracy between his brother, William, and plaintiff, Siemans, through
one or more of its employees, which resulted in a "bogus buyout" of
Coleman Corporation and the subsequent triggering of Stanley's $75,000
obligation pursuant to the personal guaranty. See Aff. of Stanley Coleman
in Opp. to Pl. Mot. for Sum. J., p. 4. In short, Stanley alleges that a
Siemans employee, in conjunction with William, purposely increased
Coleman's debt by continuing to ship goods notwithstanding Coleman's
inability to pay for them. See Stanley's Mem. in Opp. to Pl. Mot. for
Sum. J., p. 5.
However, again, despite ample opportunity for discovery, at oral
argument, counsel for defendant Stanley admitted there was little support
for this proposition. See Tr. of Oral Argument, dated 4/6/99. Moreover,
while Stanley's claim might possibly
be the basis of some action against his brother, it does not constitute a
defense to this action. Indeed, even if the conspiracy claim were
supported by more than speculation, Stanley has failed to show how
Siemans would be responsible for the actions of a faithless employee who
would not be acting on behalf of his employer, but for his own and
Stanley's brother's benefit. Therefore, as to defendant Stanley Coleman,
summary judgment is also granted.
For the forgoing reasons, plaintiff's motion for summary judgment is
granted as against defendants Stanley Coleman, William Coleman and
Coleman Electrical Supply Co.