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Case 2:03-cv-01552-LS Document 368 Filed 07/28/10 Page 1 of 3



IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Plaintiff,



ASTENJOHNSON, INC.,





COLUMBIA CASUALTY COMPANY et al.




Defendants.

v.














CIVIL ACTION

NO. 03- 1552








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DEFENDANTS’ MOTION FOR PARTIAL SUMMARY

JUDGMENT ON FACT ISSUES PURSUANT TO FED. R. Civ. P. 56(d)(1)

In compliance with the Court’s July 21, 2010 Order directing defendants to file a partial

summary judgment motion pursuant to Rule 56(d)(1), Defendants American Insurance Company

and Columbia Casualty Company (the “Insurers”) respectfully move the Court to enter partial

summary judgment decreeing that the facts recited in the accompanying Statement of Undisputed

Material Facts are not genuinely disputed, and therefore must be treated as established in this

action.

The Federal Rules of Civil Procedure provide that summary judgment is appropriate

where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Rule 56(d)(1) provides that when a case is not subject to

being fully disposed of on summary judgment, the Court should endeavor to utilize the

mechanism of partial summary judgment to narrow the scope of factual issues at trial to those

that are genuinely in dispute in order to save time and expense and to simplify the trial:

(1) Establishing Facts.

If summary judgment is not rendered on the whole action, the court
should, to the extent practicable, determine what material facts are



Case 2:03-cv-01552-LS Document 368 Filed 07/28/10 Page 2 of 3



not genuinely at issue. The court should so determine by
examining the pleadings and evidence before it and by
interrogating the attorneys. It should then issue an order specifying
what facts—including items of damages or other relief—are not
genuinely at issue. The facts so specified must be treated as
established in the action.

See Mendel v. Home Ins. Co., 806 F. Supp. 1206 (E.D. Pa. 1992)(invoking Rule 56(d)(1) to grant

partial summary judgment to determine the existence of facts as to which there was no

substantial controversy).

Once a moving party has supported a particular material, factual contention with

competent evidence, it is incumbent upon the non-moving party to come forward with contrary,

competent evidence demonstrating that a genuine issue of material fact exists as to that

contention. The non-moving party may not merely restate allegations made in its pleadings or

rely upon “self-serving conclusions, unsupported by specific facts in the record.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Moreover, the existence of a “mere scintilla of evidence in

support of [a] nonmovant’s position will be insufficient” to withstand a summary judgment

motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).1

The accompanying Statement of Undisputed Material Facts are largely drawn from the

Court’s prior Findings of Fact and Conclusions of Law in this action. The Insurers have

endeavored to remove any perceived subjective analysis and to remove any findings that

depended upon determinations of the credibility of witnesses, as opposed to being based upon

undisputed documentary or testimonial evidence. Binders containing the evidence supporting

the Insurers’ factual contentions are being submitted for the Court’s consideration.2


1 Given that the subject matter of this Motion is the determination of undisputed facts on the
basis of the evidence submitted by the parties, the Insurers ask the Court’s indulgence in omitting
a supporting memorandum of law.
2 AstenJohnson’s counsel has agreed that Exhibits AMER660 and AMER660A, which are
compendiums of underlying asbestos personal injury complaints filed against Asten, need not be
supplied to the Court due to their volume. The Insurers will, of course, provide copies of these
exhibits should the Court determine that they are needed for its consideration of this Motion.



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Case 2:03-cv-01552-LS Document 368 Filed 07/28/10 Page 3 of 3



Defendants American Insurance Company and Columbia Casualty Company submit that

no genuine factual issue exists with respect to the matters set forth in the accompanying

Statement of Undisputed Material Facts. The Insurers therefore respectfully request that this

Court grant their motion and enter the form of order submitted herewith deeming these factual

contentions as conclusively established in this action.


Respectfully submitted,

COZEN O’CONNOR

By: /s/ Jacob C. Cohn__
William P. Shelley
Jacob C. Cohn
1900 Market Street
Philadelphia, PA 19103
(215) 665 – 2000

KOCH & DeMARCO, LLP

Susan Simpson Brown
Jenkintown Plaza, Suite 460
Jenkintown, Pennsylvania 19046
(215) 881-9931























Attorneys for Defendant, American Insurance
Company

/s/ Ronald P. Schiller
Ronald P. Schiller
Jay I. Morstein
Nicole Rosenblum
HANGLEY, ARONCHICK, SEGAL
& PUDLIN
One Logan Square, 27th Floor
Philadelphia, PA 19103
(215) 568-6200

Attorneys for Defendant, Columbia Casualty
Company

Dated: July 28, 2010

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