United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE.
matter is before me on Defendants Manweiler Transport Inc.
and Paul Hamelin's (“Moving Defendants”)
Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56.
(Mot. Summ. J., ECF No. 59.) Defendants Super T. Transport,
Inc. and Layne Walters (“Opposing Defendants”)
filed a Response. (Defs.' Resp., ECF No. 60.) Plaintiff
did not respond to Moving Defendants' Motion. For reasons
explained below, I will not consider Opposing Defendants'
Response on its merits. After consideration of the Motion,
all proper related pleadings, and the case file, I grant
Moving Defendants' Motion for the reasons set forth
action arises out of an accident involving three commercial
motor vehicles on Interstate 25 near Highway 66. (Second Am.
Compl., ECF No. 41 at 3-4; ECF No. 59 at 2-3; Ex. D to Reply
to Mot. Summ. J., ECF No. 61-3 at 2-3.) For the purposes of
Moving Defendants' Motion, the following facts are
undisputed unless otherwise noted.
snowy day with limited visibility, all three vehicles were
traveling northbound when Opposing Defendants' vehicle
rear-ended Plaintiff's vehicle. (ECF No. 59 at 3; ECF No.
61-3 at 3-5.) Plaintiff avers in his Amended Complaint that
Opposing Defendant Walter “slammed into the rear of
Plaintiff's vehicle, ” but Plaintiff does not
detail Moving Defendants' role in the accident which
caused Plaintiff's alleged harm. (ECF No. 41 at 4.)
Moving Defendants' vehicle subsequently rear-ended
Opposing Defendants' vehicle. (ECF No. 61-3 at 4.) Moving
Defendants' vehicle did not make contact with
Plaintiff's vehicle. (Ex. B to Mot. Summ. J., ECF 59-2 at
144:24-145:1.) The force from the impact between Moving
Defendants' and Opposing Defendants' vehicles did not
cause a secondary impact between Plaintiff's and Opposing
Defendants' vehicles. (ECF No. 59-2 142:6-9; ECF No. 61-3
Standard of Review
purpose of a summary judgment motion under Rule 56 is to
assess whether trial is necessary. White v. York
Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Rule
56 provides that summary judgment shall be granted if the
pleadings, depositions, answers to interrogatories,
admissions, or affidavits show that there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if
its determination might affect the outcome of the suit under
the governing law. Roberts v. Jackson Hole Mountain
Resort Corp., 884 F.3d 967, 972 (10th Cir. 2018).
Evidence and any reasonable inferences drawn from the
evidence is viewed in the light most favorable to the
nonmoving party. T.D. v. Patton, 868 F.3d 1209, 1219
(10th Cir. 2017).
moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact and entitlement
to judgment as a matter of law. Am. Movie Classics v.
Rainbow Media Holdings, 508 Fed.Appx. 826, 829 (10th
Cir. 2013) (quoting Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670-71 (10th Cir. 1998)). To meet this burden,
movant need not disprove a nonmovant's claims; rather, it
must “simply point[ ] out to the court a lack of
evidence for the nonmovant on an essential element of the
nonmovant's claim.” Adler v. Wal-Mart Stores,
Inc., 144 F.3d at 670-71 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If it meets this
initial burden, the burden shifts to the nonmoving party,
here Plaintiff, to “set forth specific facts showing
that there is a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If a
plaintiff does not respond to a motion for summary judgment,
it cannot rely solely on its complaint to counter supported
assertions made by the moving party. Lopez-Bignotte v.
Ontivero, 42 Fed.Appx. 404, 408 (10th Cir. 2002) (citing
Parkinson v. The Calif. Co., 233 F.2d 432, 438 (10th
case that the nonmoving party does not respond to the motion,
the court may: (1) give an opportunity to properly support or
address the fact; (2) consider the fact undisputed for
purposes of the motion; (3) grant summary judgment if the
motion and supporting materials--including the facts
considered undisputed--show that the movant is entitled to
it; or (4) issue any other appropriate order. Fed.R.Civ.P.
56(e). Thus, “the district court may not grant the
motion without first examining the moving party's
submission to determine if it has met its initial burden of
demonstrating that no material issues of fact remain for
trial and the moving party is entitled to judgment as a
matter of law.” Reed v. Bennett, 312 F.3d
1190, 1195 (10th Cir. 2002) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 161 (1970)).
the evidence produced in support of the summary judgment
motion does not meet this burden, ‘summary judgment
must be denied even if no opposing evidentiary matter is
presented.'” Id. (quoting Adickes
v. S.H. Kress & Co., 398 U.S. at 160) (emphasis in
original). However, after accepting as true all material
facts asserted and properly supported in the motion, the
court should grant summary judgment if movant is entitled to
judgment as a matter of law. Id. (citing cases).
The Effect of Opposing Defendants' Response
Defendants responded to Moving Defendants' Motion but did
not discuss the procedural posture of a co-defendant
responding to another co-defendant's motion for summary
judgment. In their Reply, Moving Defendants argued that
Opposing Defendants have no standing to file a response
because Moving Defendants' “requested dismissal
does not impact Plaintiff's claims against [Opposing
Defendants] or [Opposing Defendants'] defenses to such
claims.” (Reply to Mot. Summ. J., ECF No. 61 at 2.)
knowledge, a federal appellate court has yet to address what
should occur when a co-defendant responds to another
co-defendant's motion for summary judgment when no
crossclaims exist. However, many district courts have
addressed the issue, to which there have been myriad
outcomes. See D.F. by & through Amador v. Sikorsky
Aircraft Corp., No. 3:13-cv-00331-GPC-KSC, 2017 WL
4922814, at *11-12 (S.D. Cal. Oct. 30, 2017) (collecting
cases). The court in D.F. summarized that the courts
not allowing an opposing co-defendant to respond “have
relied on the idea that forcing a plaintiff to prosecute a
trial, against that plaintiff's wishes, is
‘contrary to the principle of Rule 56 that trials (or