T.S.I. 27, Inc. v. Berman Enterprises, Inc.

115 F.R.D. 252, 1987 U.S. Dist. LEXIS 2401
CourtDistrict Court, S.D. New York
DecidedMarch 31, 1987
DocketNo. 86 Civ. 5770 (RWS)
StatusPublished
Cited by19 cases

This text of 115 F.R.D. 252 (T.S.I. 27, Inc. v. Berman Enterprises, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
T.S.I. 27, Inc. v. Berman Enterprises, Inc., 115 F.R.D. 252, 1987 U.S. Dist. LEXIS 2401 (S.D.N.Y. 1987).

Opinion

SWEET, District Judge.

Plaintiff T.S.I. 27, Inc. (“TSI”) has moved against defendant Berman Enterprises, Inc. (“Berman”) for severance of Berman’s fifth counterclaim under Rule 21, Fed.R. Civ.P., for summary judgment under Rule 56, and for final judgment under Rule 54(b). For the reasons set forth below, Berman’s counterclaim is severed and partial summary judgment is granted.

The Facts

TSI, a Louisiana corporation with its principal place of business in Louisiana, owns and operates a tugboat named the TSI-27. On August 25, 1985, TSI chartered the TSI-27 to Pan Oceans Marine, Inc. (“Pan Oceans”) who used it to perform certain towing services for Berman, a New York corporation with its principal place of business in Bayonne, New Jersey, and affiliated companies.

In March of 1986 Pan Oceans assigned its Berman receivables, $81,730.00, to TSI. The amount was calculated as the difference between the value of towing services that Pan Ocean performed for Berman from November, 1985 to March, 1986, less the value of fuel and routine maintenance that Berman and its affiliates provided to Pan Oceans. TSI also performed towing services for Berman directly in February and March of 1986. This action seeks $149,656.25 in satisfaction of both debts.

In support of its motion for partial summary judgment, TSI has submitted documents to establish leasing and towing fees owed of $117,423.95. Berman has [254]*254challenged some of the hours claimed by TSI and alleges that the figure should instead be only $113,525.00. In addition, Berman has counterclaimed, seeking to recover money for routine servicing performed on the TSI-27 during the course of the business relationship and also seeking damages for losses incurred in a separate incident when a barge was damaged while being towed by TSI’s tug. The barge was owned by an unrelated company, Bouchard Transportation Corp. (“Bouchard”), but Berman claims to have repaired and cleaned the barge at the direction of TSI, and that Bouchard withheld towing fees subsequent to the accident.

TSI has acknowledged some services provided by Berman, denies approving or ordering any repairs to the barge, and challenges Berman’s capacity to maintain a claim on behalf of Bouchard. TSI moved for summary judgment on its contract claim, and to sever that part of Berman’s counterclaim relating to the Bouchard accident. Affidavits, exhibits and memoranda were presented by both parties, and argument was heard on November 28, 1986.

Rule 21 Severance

Courts may order a Rule 21 severance when it will serve the ends of justice and further the prompt and efficient disposition of litigation. General Tire & Rubber Co. v. Jefferson Chemical Co., 50 F.R.D. 112 (S.D.N.Y.1970). See Wyndham Associates v. Bintliff 398 F.2d 614 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968). See generally 3A J. Moore Federal Practice 1121.05[2] at 2144-47 (2d ed. 1986). When counterclaims are based “on an entirely different factual situation from that underlying plaintiff’s claim for payment” they are readily severable. Spencer, White & Prentis, Inc. v. Pfizer, Inc., 498 F.2d 358, 362 (2d Cir.1974). They do not form a basis for denial of summary judgment on plaintiff’s claim. Id.; see also Republic Nat’l Bank v. Sabet, 512 F.Supp. 416, 427 (S.D.N.Y.1980), aff'd, 681 F.2d 802 (2d Cir.1981), cert. denied, 456 U.S. 976, 102 S.Ct. 2241, 72 L.Ed.2d 850 (1982).

Here, Berman’s answer sets out five distinct counterclaims. The first four relate to amounts allegedly due Berman for services provided by her and affiliated companies to and for. the operation of the TSI-27: “Fuel, maintenance and other services necessary for the operation of the T.S.I. 27” (Defendant’s Answer 1117), “tank cleaning” (Defendant’s Answer 1118), “fuel” (Defendant’s Answer 1119), and “ship repair and wharfage” (Defendant’s Answer H 20). All of these claims involve a dispute over contracts between Berman and affiliated companies on one side, and TSI (and apparently Pan Oceans, too) on the other. However, Berman’s fifth counterclaim alleges that “[a]s a result of the negligent operation and navigation of the T.S.I. 27, the [barge] was damaged in a collision in the amount of $44,829.50 ...” (Defendant’s Answer II21). The fifth counterclaim is the only cause of action between the parties involving tort law.

TSI argues that to determine the actual party liable for the collision, an entirely different set of facts and issues must be presented and resolved, and it will be necessary to implead a third party involved in the incident, who otherwise has no connection to the rest of the case. Berman, on the other hand, wishes to treat the accident simply as part of the contract dispute, claiming “Pan Oceans agreed to be responsible for damages to barges in its control.” But Berman’s own exhibits show that while all the other invoices were sent to TSI or Pan Oceans, the bills for the barge were sent directly to the owners of the barge, Bouchard Transportation, and not to TSI or Pan Oceans. Consequently, TSI’s motion for a Rule 21 severance is granted.

Summary Judgment

Fed.R.Civ.P. 56(c) provides that a court shall grant a motion for summary judgment if, based on the pleadings, affidavits, and admissions, it determines that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In considering the motion, the court’s respon[255]*255sibility is to “assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986); see Anderson v. Liberty Lobby, Inc., — U.S. -, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986). The court’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 106 S.Ct. at 2511.

In Electro-Catheter Corp. v. Surgical Specialties Instrument Co., 587 F.Supp. 1446 (D.N.J.1984), plaintiff was granted summary judgment on a claim for goods sold and delivered, where defendant did not dispute that goods were delivered or that invoices accurately reflected the price of the goods, notwithstanding the fact that the defendants claim for setoff remained to be adjudicated. 587 F.Supp. at 1456. The court found that when defendant did not dispute receiving the goods, or the prices for them, “no genuine dispute as to any material fact regarding plaintiff’s right to recover on these invoices is present.” Id.

Rule 56(d) provides:

Case not fully adjudicated on motion
If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted.

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Cite This Page — Counsel Stack

Bluebook (online)
115 F.R.D. 252, 1987 U.S. Dist. LEXIS 2401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tsi-27-inc-v-berman-enterprises-inc-nysd-1987.