                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-12-2002

Friedrich v. Cadle Co
Precedential or Non-Precedential:

Docket No. 01-2583




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Recommended Citation
"Friedrich v. Cadle Co" (2002). 2002 Decisions. Paper 271.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/271


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                                               NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                          No. 01-2583
                           __________

                      JAMES S. FRIEDRICH,
                                              Appellant

                                  v.

                     THE CADLE COMPANY, an
                        Ohio Corporation
                           __________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                   D.C. Civil No. 00-cv-00450
         District Judge: The Honorable Sylvia H. Rambo
                           __________

           Submitted Under Third Circuit LAR 34.1(a)
                         April 9, 2002
                           __________

       Before: McKEE, BARRY, and ALARCON, Circuit Judges

                (Opinion Filed: April 12, 2002 )
                          ____________

                            OPINION
                          ____________


BARRY, Circuit Judge
     This is a dispute about the post-judgment conduct of a creditor seeking to enforce a
judgment. In 1994, The Cadle Company obtained a judgment against James S. Friedrich
on three defaulted promissory notes in the amount of $191,422.79. Almost eight years
later, the bulk of the judgment, plus interest, remains unpaid. In March 2000, Friedrich
commenced this action seeking an injunction and alleging (1) that Cadle has not availed
itself of the remedial procedures contained in the promissory notes; (2) that Cadle has not
attempted to obtain possession of the notes; and (3) that Cadle has failed to make any
effort to collect amounts due under a collateral assignment executed by Friedrich on the
notes. On May 21, 2001, the District Court granted Cadle’s motion for summary
judgment. We have jurisdiction over Friedrich’s appeal pursuant to 28 U.S.C. 1291 and
will affirm.
     In granting summary judgment in favor of Cadle, the District Court held that the
allegations contained in the First Amended Complaint, standing alone, could not defeat
summary judgment, that there was no evidence in the record suggesting that Cadle had
failed to satisfy its obligations under the notes or had engaged in improper behavior, and
that the Court would not entertain Friedrich’s efforts to re-open the 1994 litigation
because the time for challenging that judgment had long since passed.
     We exercise plenary review over the District Court’s grant of summary judgment,
and apply the well-settled standards for summary judgment: The burden is on the moving
party to demonstrate that there are no genuine issues of material fact and that it is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Bailey v. United
Airlines, 279 F.3d 194, 198 (3d Cir. 2002). We review the record in the light most
favorable to the non-moving party. A non-moving party, however, "will not be able to
withstand a motion for summary judgment merely by making allegations; rather, the party
opposing the motion must go beyond its pleadings and designate specific facts by use of
affidavits, depositions, admissions, or answers to interrogatories showing there is a
genuine issue for trial." In re Ikon Office Solutions, Inc., 277 F.3d 658, 666 (3d Cir.
2002).
     Friedrich’s contentions on appeal can be generally broken down into three
categories. First, Friedrich claims that the allegations in his complaint and the
corresponding denials in Cadle’s answer preclude summary judgment. Friedrich is wrong
as the above-quoted language from Ikon Office Solutions makes abundantly clear.
     Second, Friedrich points to some deposition testimony relating to the process by
which Cadle acquired the notes and the compensation allegedly paid to the predecessor in
interest of the notes. This evidence cannot defeat summary judgment because, as the
District Court found, it is not material to the allegations of post-judgment misconduct by
Cadle, and is simply a belated effort by Friedrich to re-litigate the 1994 judgment against
him.
     Finally, Friedrich points to deposition testimony which he contends demonstrates
that Cadle failed to comply with its obligations under the notes. This testimony is
unavailing for several reasons. First, the promissory notes themselves do not impose an
obligation on Cadle to go after any supposed collateral prior to obtaining and enforcing a
judgment the result of Friedrich’s default. Second, Friedrich admitted in his deposition
that he did not know what Cadle did or did not do in seeking to collect the monies due.
Third, there is simply no evidence suggesting that Cadle engaged in any post-judgment
fraud or other wrongdoing. Instead, the record indicates that Cadle attempted to collect
on the notes and explored other avenues of compensation. Indeed, it is undisputed that
Cadle determined that two of the notes were worthless, and that Cadle received only
$6,568.48 in proceeds from the sale of the partnership the subject of the third note.
     For all of the foregoing reasons, we will affirm the order of the District Court
granting summary judgment in favor of Cadle.

TO THE CLERK OF THE COURT:
     Kindly file the foregoing Opinion.

                                   /s/ Maryanne Trump Barry
                                   Circuit Judge
