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September 3, 2004.


The opinion of the court was delivered by: CHARLES BREYER, District Judge

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 summary judgment.).

  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.


20040903 ...

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