The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:
On November 24, 2009, Plaintiff Guru Kripa Foods, Inc. ("Plaintiff")
commenced this action against Inter, Inc. ("Inter") by filing a
summons and complaint in New York State Supreme Court, Queens County.
On January 20, 2010, Inter properly removed the action to this court
pursuant to 28 U.S.C. §§ 1332 and 1441(a). (See Notice of Removal,
Doc. Entry No. 1.) On May 11, 2011, by way of an amended complaint,
Plaintiff also commenced this action
against Midwest Coast Logistics, LLC ("MCL," together with Inter,
"Responding Defendants") and Devan Patel ("Patel"), *fn1
claiming, as to Responding Defendants, that they breached the
terms of certain bills of lading*fn2 covering sixteen
(16) truckloads of basmati rice that Plaintiff shipped interstate
allegedly for sale to Whole Foods Market, Inc. ("Whole Foods") and
Trader Joe's Company ("Trader Joe's"). (See Second Am. Verified Compl.
("Compl."), Doc. Entry No. 58.)
In its answer to Plaintiff's complaint, Inter asserted cross-claims against MCL seeking, inter alia, indemnification from MCL, if Inter is found liable to Plaintiff. (See Doc. Entry No. 61.) Responding Defendants also filed separate third-party complaints against Patel and his brother Neil Patel.*fn3 (Doc. Entry Nos. 54, 56.) Responding Defendants now make separate motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56") against Plaintff. (Doc. Entry Nos. 82, 91.) Plaintiff opposes Responding Defendants' motions and cross-moves for summary judgment pursuant to Rule 56, "striking the answers" of Responding Defendants. (See Pl.'s Cross Mot. to Strike Answers of the Defendants ("Pl.'s Mot."), Doc. Entry No. 79.) For the reasons set forth below, Responding Defendants' motions are granted and Plaintiff's motion is denied.*fn4
I.The Parties' Local Civil Rule 56.1 Statements
As a threshold matter, while all parties in this case made submissions purporting to comply with Local Civil Rule 56.1, Plaintiff's submission in response to Responding Defendants' Joint Statement of Material Facts is wholly deficient. *fn5 (See Pl.'s Stmt. of Material Facts ("Pl.'s 56.1 Stmt."); *fn6 Defs.' Joint Stmt. of Material Facts ("Defs.' 56.1 Stmt."), annexed to MCL's Mot. for Summ. J., Doc. Entry No. 82; Pl.'s Stmt. of Material Facts ("Pl.'s 56.1(b) Stmt."), Doc. Entry Nos. 81, 83; MCL's Counterstatement of Facts in Opp'n to Pl.'s Cross-Mot. for Summ. J. ("MCL's 56.1(b) Stmt."), Doc. Entry No. 88; Inter's Resp. to Pl.'s Stmt. of Material Facts ("Inter's 56.1(b) Stmt."), Doc. Entry No. 89.)
Local Civil Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New York requires a party moving for summary judgment to submit a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." LOCAL CIV. R. 56.1(a). Moreover, the party opposing the motion must "include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party . . ." LOCAL CIV. R. 56.1(b).
In addition, "[e]ach statement by the movant or opponent . . . including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by FED. R. CIV. P. 56(c)." LOCAL CIV. R. 56.1(d) (emphasis added). Finally, the facts submitted in the movant's statement "will be deemed to be admitted for purposes of the motion unless specifically controverted by" the opposing party's statement. LOCAL CIV. R. 56.1(c); see also FED. R. CIV. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]); Paolercio v. Allstate Ins. Co., 2011 WL 4628748, at *1 (E.D.N.Y. Sept. 30, 2011) (citations omitted) (A party's failure to contest facts set forth in the opposing party's Rule 56.1 statement "constitutes an admission of those facts, and those facts are accepted as being undisputed.").
Each purportedly undisputed fact set forth in Responding Defendants' Joint Statement of Material Facts is amply supported by multiple citations to the record. (See Defs.' 56.1 Stmt.) Plaintiff attempts to place a substantial portion of Responding Defendants' Joint Statement of Material Facts in controversy; however, Plaintiff's entire Rule 56.1(b) statement is conclusory, fails to address Responding Defendants' record-based assertions, and is entirely devoid of citations to the record. (See Pl.'s 56.1(b) Stmt.) Accordingly, for purposes of the instant motion, Responding Defendants' factual assertions that are supported by the record and not controverted by Plaintiff in accordance with Rule 56 and Local Civil Rule 56.1 are deemed admitted. See Vinson v. City of New York, 2007 WL 965338, at *2 (S.D.N.Y. Mar. 30, 2007) (deeming facts supported by the record and uncontroverted by plaintiff admitted for purposes of Rule 56 motion); Sterbenz v. Attina, 205 F. Supp. 2d 65, 68 (E.D.N.Y. 2002) ("Where plaintiff has not responded to defendants' factual assertions-all of which are established by documentary evidence and/or the deposition testimony of plaintiff or her counsel-this Court has deemed those facts to be uncontroverted."). In light of the foregoing discussion, the following facts are undisputed.
Plaintiff is a food importation and distribution company organized in 2004 and located in Maspeth, Queens County, New York. (Defs.' 56.1 Stmt. ¶ 1; Pl.'s 56.1(b) Stmt. ¶ 1; Nov. 4, 2010 Dep. of Vijay Kumar Arora ("Arora Dep.") at 10, annexed as Ex. A to Jeff Gillespie Aff. ("Gillespie Aff."), Doc. Entry No. 82.) Plaintiff's principal is Vijay Kumar Arora ("Arora"), who operated a rice distribution business in India before moving to the United States in 2001. (Defs.' 56.1 Stmt. ¶¶ 2-3; Pl.'s 56.1(b) Stmt. ¶¶ 2-3; Arora Dep. at 8-9, 12.) Between 2004 and 2009, Plaintiff sold rice locally to customers in New York and New Jersey and Plaintiff transported the rice in its own van from its Queens warehouse to the local purchasers. (Defs.' 56.1 Stmt. ¶ 4; Pl.'s 56.1(b) Stmt. ¶ 4; Arora Dep. at 23-24.) Prior to February 2009, Plaintiff had never conducted business with a food broker. (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1(b) Stmt. ¶ 6; Arora Dep. at 49.) Prior to April 2009, Plaintiff had never conducted business with Whole Foods or Trader Joe's. (Defs.' 56.1 Stmt. ¶ 5; Pl.'s 56.1(b) Stmt. ¶5; Arora Dep. at 30-31.)
MCL is a property broker licensed by the Federal Motor Carrier Safety Administration ("FMCSA") and is located in Sioux Falls, South Dakota. (Defs.' 56.1 Stmt. ¶ 35; Pl.'s 56.1(b) Stmt. ¶ 35; Gillepsie Aff. ¶ 4.) As an FMCSA-licensed property broker, MCL procures and arranges for transportation services by motor carriers at the request of MCL's customers; however, MCL does not directly handle or transport goods itself. (Defs.' 56.1 Stmt. ¶¶ 36-37; Pl.'s 56.1(b) Stmt. ¶¶ 36-37; Gillespie Aff. ¶ 5; Dep. of Dan King ("King Dep.") at 3, annexed as Ex. E to Gillespie Aff.)
Inter is an interstate motor carrier licensed by the FMCSA and located in Addison, Illinois. (Defs.' 56.1 Stmt. ¶ 67; Pl.'s 56.1(b) Stmt. ¶ 67; Decl. of Danny Petrovic ("Petrovic Decl.") ¶ 2, Doc. Entry No. 92; Dep. of Zorica Petrovic ("Petrovic Dep.") at 6, annexed as Ex. C to Gillespie Aff.)
B.Food Broker Transaction
In February 2009, Arora received a phone call from an individual named Devan Patel during which Patel identified himself as a food broker from Chicago who was interested in purchasing rice from Plaintiff. (Defs.' 56.1 Stmt. ¶ 8; Pl.'s 56.1(b) Stmt. ¶ 8; Arora Dep. at 51.) Between February and June of 2009, Arora engaged in a series of additional telephone conversations with Patel and another individual who identified himself as Anthony Smith ("Smith"). (Defs.' 56.1 Stmt. ¶ 9; Pl.'s 56.1(b) Stmt. ¶ 9; Arora Dep. at 30-33.) Smith told Arora that he and Patel were both food brokers for Whole Foods and Trader Joe's, which Arora believed to be true. (Defs.' 56.1 Stmt. ¶¶ 10, 11; Pl.'s 56.1(b) Stmt. ¶¶ 10, 11; Arora Dep. at 45, 61-62.)
As a result of the conversations Arora had with Patel and Smith, Plaintiff purchased and imported the sixteen (16) rice shipments identified in the complaint*fn7 from a seller named SRSS Agro Pvt., Ltd., located in Delhi, India, which he believed would be purchased by Whole Foods and Trader Joe's from Plaintiff. (Compl. ¶¶ 2-67; Defs.' 56.1 Stmt. ¶¶ 7, 10; Pl.'s 56.1(b) Stmt. ¶¶ 7, 10; Pl.'s 56.1 Stmt. ¶ 1; Arora Dep. at 19.)
Plaintiff did not enter into any written agreements with Patel or Smith regarding the rice purchases, and all of Arora's communications with them were conducted by telephone. (Defs.' 56.1 Stmt. ¶ 14; Pl.'s 56.1(b) Stmt. ¶ 14; Arora Dep. at 49-50.) Moreover, Patel never provided Plaintiff with any purchase orders from Whole Foods or Trader Joe's and Plaintiff never requested any purchase orders from Patel for the rice shipments. (Defs.' 56.1 Stmt. ¶ 24; Pl.'s 56.1(b) Stmt. ¶ 24; Arora Dep. at 141-43.) In addition, Plaintiff never sent Patel or Smith any invoices covering Plaintiff's intended salesof the rice shipments to Whole Foods and Trader Joe's because Patel and Smith "never demanded" such invoices from Plaintiff. (Defs.' 56.1 Stmt. ¶ 25; Arora Dep. at 86.) Although Arora had never heard of or communicated with Patel prior to receiving the initial phone call from him in February 2009, Arora neither investigated Patel nor requested or obtained any personal references from him before or during the execution of the rice shipments. (Defs.' 56.1 Stmt. ¶ 15; Pl.'s 56.1(b) Stmt. ¶ 15; Arora Dep. at 54-55.)
Arora believed that Patel and Smith would share commissions on Plaintiff's expected rice sales to Whole Foods and Trader Joe's. (Defs.' 56.1 Stmt. ¶ 12; Pl.'s 56.1(b) Stmt. ¶ 12; Arora Dep. at 45.) Smith had informed Arora that Whole Foods and Trader Joe's would send their own trucks to pick up the rice shipments from Plaintiff. (Defs.' 56.1 Stmt. ¶ 13; Pl.'s 56.1(b) Stmt. ¶ 13; Arora Dep. at 45, 48.) It also was Arora's understanding that Smith and Patel would control the rice shipments once they were loaded into the trucks at Plaintiff's Queens warehouse. (Defs.' 56.1 Stmt. ¶ 16; Arora Dep. at 167.) Moreover, Arora testified that he understood, from the beginning of Plaintiff's relationship with Patel and Smith, that Plaintiff would not know the delivery address or final destination of the rice shipments. (Defs.' 56.1 Stmt. ¶ 29; Arora Dep. at 148.) It was Plaintiff's understanding that the rice shipments could possibly be delivered to different destinations than those Plaintiff placed on its invoices*fn8 because Plaintiff believed that Whole Foods and Trader Joe's told the trucking company where to send the rice and that the rice could have been sent to any of four-hundred different Whole Foods stores alone. (Defs.' 56.1 Stmt. ¶ 88; Arora Dep. at 147-148, 173). Arora expected that Patel or Smith would eventually advise him of the shipments' final destinations. (Defs.' 56.1 Stmt. ¶ 30; Arora Dep. at 173.)
Plaintiff had no role in arranging for the transportation of the subject shipments. (Defs.' 56.1 Stmt. ¶ 21; Pl.'s 56.1(b) Stmt. ¶ 21; Arora Dep. at 136.) Based on Arora's conversations with Patel, Smith, and MCL representative Dan King ("King"), Arora believed that: 1) MCL would make the transportation arrangements for the subject shipments on behalf of Whole Foods and Trader Joe's; 2) Inter's trucking services would be used to transport some of the subject shipments; and 3) Whole Foods and Trader Joe's having hired MCL and ...