United States District Court, N.D. California
September 3, 2004.
XEROX CORPORATION, Plaintiff,
PRECISION TRANSPORT COMPANY, INC., Defendant.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
Xerox Corporation ("Xerox") filed this suit against Precision
Transport Company, Inc. ("Precision") on March 24, 2004. In its
complaint, Xerox asserts a claim for common count against
Precision for $558,651.85. Precision filed an answer in which it
asserted eighteen affirmative defenses.
Now before the Court is plaintiff's motion for summary
judgment. Defendant does not oppose the motion. Having carefully
considered plaintiff's memorandum and supporting documents, the
Court concludes that oral argument is unnecessary, see Local
Rule 7-1(b), and GRANTS plaintiff's motion for summary judgment.
I. Summary Judgment Standard
The party moving for summary judgment must persuade the court
through "pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, . . . that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a mater of
law. . . ." Fed.R. Civ. P. 56(c). Once a motion for summary
judgment is made and supported as provided for in Rule 56(c), the
burden shifts to the opposing party to show that a genuine issue
of material fact remains. See Fed.R. Civ. P. 56(e). Rule 56(e)
states that an "adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing that there is
a genuine issue for trial . . . If the adverse party does not so
respond, summary judgment, if appropriate, shall be entered
against the adverse party." Id.
To be considered by a court, "documents must be authenticated
by and attached to an affidavit that meets the requirements of
[Rule] 56(e) and the affiant must be a person through whom the
exhibits could be admitted into evidence." Canada v. Blain's
Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). Rule 56(e)
provides in part that "Supporting . . . affidavits shall be made
on personal knowledge, shall set forth such facts as would be
admissible in evidence and shall show affirmatively that the
affiant is competent to testify to the matters stated therein."
II. Plaintiff's Claim for Common Count
A claim for common count alleges in substance that the
defendant became indebted to the plaintiff for a certain stated
sum, for some consideration such as goods sold and delivered by
plaintiff to defendant, and that no part of the sum has been
paid. See First Interstate Bank v. California, 197 Cal. App. 3d 627,
635 (1987). The only essential elements of the claim are
1) the statement of indebtedness for a certain sum, 2) the
consideration made by the plaintiff, and 3) defendant's
nonpayment of the debt. Id.
In this case, plaintiff has submitted a declaration by Charles
J. Corrigan, a Xerox collection manager, who has been monitoring
Precision's account. See Corrigan Decl. ¶ 2. Attached to
Corrigan's declaration are copies of invoices sent by Xerox to
Precision, which Corrigan states are true and correct. Id. ¶ 4.
The Corrigan declaration and attached documents meet the
requirements of Rule 56(e). Together, the documents establish
that 1) Precision incurred $558,651.65 in debt between July and September
2003; 2) Precision received various paper products from Xerox in
consideration for such sums; and 3) Precision has not paid such
sums. Further, Precision admitted in its answer that it
"purchased certain products from XEROX between July 2003 and
September 2003 and that it has not paid for those goods." See
Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir. 1980)
(Admissions in the opposing party's pleadings (even if
unverified) are admissible evidence under Federal Rule of
Evidence 801(d)(2) and therefore can serve as the basis for
Through the Corrigan Declaration and Precision's admission,
Xerox has shown that there is no genuine issue of material fact
on any of the essential elements in its common count claim,
establishing that Precision owes Xerox $558,651.65. Defendant
does not oppose this motion and has offered no evidence to the
contrary. Accordingly, summary judgment is warranted.
For the foregoing reasons, plaintiff's motion for summary
judgment is GRANTED.
IT IS SO ORDERED.
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