Case: 12-14088   Date Filed: 03/15/2013   Page: 1 of 8




                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 12-14088
                          Non-Argument Calendar
                         _____________________

                   D.C. Docket No. 1:11-cv-02895-CAP


EPHRAIM POSTELL,

                     Plaintiff - Appellee,

versus

RYDER TRUCK RENTAL, INC., ET AL.,


                     Defendants - Appellants.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (March 15, 2013)

Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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        Appellant Ephraim Postell appeals the district court’s order granting

Appellees Ryder Truck Rental, Inc. and Harleysville Mutual Insurance Company’s

(collectively “Defendants”) motion for summary judgment. Postell poses three

arguments on appeal: (1) it was error for the district court to find that Postell failed

to file a response to Defendants’ statement of material facts, as required by

Northern District of Georgia Local Rule 56.1 (B)(2)(a)(2); (2) the district court

erred in granting Defendants’ motion for summary judgment; and (3) it was error

for the district court to rule on Defendants’ motion for summary judgment because

the discovery deadline had not yet passed. After a thorough review of the parties’

briefs and the record, we affirm.

   I.      Background

        In July 2010, Postell was injured when a loading ramp he was standing on

collapsed. At the time, Postell was working for Eastern Star Seafood, Inc. (Eastern

Star). The loading ramp was attached to a refrigerated box truck; Eastern Star

leased the cab and chassis of the truck from Ryder Truck. Eastern Star was insured

through Harleysville Mutual, and named Ryder Truck as an additional insured.

        In July 2011, Postell filed a complaint in the Superior Court of Gwinnett

County, Georgia, against Defendants, alleging that they were negligent in failing to

maintain the truck’s unloading ramp. In response, Defendants removed the case to




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the United States District Court for the Northern District of Georgia based on

diversity jurisdiction.

         Thereafter, in February 2012, Defendants moved for summary judgment.

Around the same time, Liberty Mutual Insurance Company (Liberty Mutual)

alleged that it had already paid out Postell’s worker’s compensation benefits, so it

moved to intervene as a plaintiff in order to preserve its subrogation rights in any

amount Postell might recover. The district court granted the motion, and Liberty

Mutual was added as a party.

         The district court granted Defendants’ motion for summary judgment on

July 27, 2012. The district court found that the Defendants were not responsible

for maintaining the truck in question, and therefore, they were not negligent.

Postell timely appealed.

   II.      Jurisdiction

         As a preliminary matter, we must first tackle the issue of jurisdiction. Prior

to the filing of their appellate briefs, the parties were instructed to brief this court

on two jurisdictional issues.

         (1) Whether the district court’s July 27, 2012 order is final and
             appealable, when it did not directly dispose of intervenor-plaintiff
             Liberty Mutual Insurance Company’s complaint?

         (2) Whether the complaint sufficiently alleges the citizenship of all the
             parties to establish diversity jurisdiction?



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      This court has jurisdiction over the instant matter. First, the district court’s

order was final. To be appealable, an order must either be final or fall within a

specific class of interlocutory orders that are made appealable by statute of

jurisprudential exception. 28 U.S.C. §§ 1291, 1292. A final decision within the

meaning of 28 U.S.C. § 1291 “is one which ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v.

Mestre, 

, 1368 (11th Cir. 1983) (internal quotation marks omitted).

A district court order that disposes of fewer than all of the claims or parties, or

contemplates further substantive proceedings in the case, is not final or appealable

unless the district court certifies the order as immediately appealable under Federal

Rule of Civil Procedure 54(b). Haney v. City of Cumming, 

, 1101

(11th Cir. 1995).

      Here, when the district court granted Defendants’ summary judgment

motion, it did not explicitly address the subrogation claims asserted by Liberty

Mutual. These claims, however, would have only taken effect had Postell

recovered from Defendants. Therefore, by finding that Postell had failed to prove

Defendants were negligent, and subsequently granting Defendants’ motion for

summary judgment, the district court implicitly denied Liberty Mutual relief on its

claims. Accordingly, the district court effectively dismissed all claims against all




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parties, and the district court’s order is a final, appealable decision. See 28 U.S.C.

§ 1291; Pitney Bowes, 701 F.2d at 1368.

          The district court also had jurisdiction over the parties. “Diversity

jurisdiction exists over a controversy between citizens of different states.”

McCormick v. Aderholt, 

, 1257 (11th Cir. 2002) (per curiam) (citing

28 U.S.C. § 1332(a)). A corporation is deemed a citizen of any state in which it is

incorporated and the state in which it has its principal place of business. 28 U.S.C.

§ 1332(c)(1). For natural persons, a complaint must allege the parties’ citizenship,

which is their domicile. McCormick, 

. “Citizenship, not residence,

is the key fact that must be alleged in the complaint to establish diversity for a

natural person.” Taylor v. Appleton, 

, 1367 (11th Cir. 1994).

          Postell is a citizen of Georgia. He has lived in Georgia all of his life. He

was domiciled in Georgia at the time of the filing of this case. Ryder Truck is a

company formed and existing under the laws of the State of Florida, with its

principal place of business in Miami, Florida. Harleyville Mutual is a company

formed and existing under the laws of the State of Pennsylvania and has its

principal place of business in Harleysville, Pennsylvania. Therefore, the district

court had jurisdiction over the parties. See 28 U.S.C. § 1332.

   III.      Summary Judgment




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      We review the district court’s grant of summary judgment de novo. Huff v.

DeKalb County, 

, 1277 (11th Cir. 2008). “Under Rule 56(c),

summary judgment is proper if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

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.” Celotex Corp. v. Catrett, 

,

322, 

, 2552 (1986) (internal quotation marks omitted). “Summary

judgment is appropriate when the evidence, viewed in the light most favorable to

the nonmoving party, presents no genuine issue of material fact and compels

judgment as a matter of law in favor of the moving party.” Holloman v. Mail-Well

Corp., 

, 836–37 (11th Cir. 2006).

      Postell first contends that the district court erred when it found as admitted

the facts in the Defendants’ statement of material facts. The relevant local rule

states that, “[a] respondent to a summary judgment motion shall include the

following documents with the responsive brief: [ ][a] response to the movant's

statement of undisputed facts[, which] shall contain individually numbered,

concise, nonargumentative responses corresponding to each of the movant’s

numbered undisputed material facts.” N.D. Ga. R. 56.1(B)(2)(a)(1). The rules

further provides that the district court

      will deem each of the movant’s facts as admitted unless the
      respondent: (i) directly refutes the movant’s fact with concise
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      responses supported by specific citations to evidence (including page
      or paragraph number); (ii) states a valid objection to the admissibility
      of the movant’s fact; or (iii) points out that the movant’s citation does
      not support the movant’s fact or that the movant’s fact is not material
      or otherwise has failed to comply with the provisions set out in LR
      56.1 B.(1).

N.D. Ga. R. 56.1(B)(2)(a)(2).

      Here, Postell failed to file a response to Defendants’ statement of undisputed

facts. Consequently, the district court did not err when it deemed all of the facts

set forth in Defendants’ statement of facts as admitted by Postell. Postell’s

argument as to this issue fails.

      Similarly, Postell’s argument that summary judgment was improper must

also fail. In neglecting to file a response to Defendants’ statement of undisputed

facts, Postell admitted, most notably, that Eastern Star had itself added the loading

ramp to the truck rented from Ryder Truck. In addition, Postell is deemed to have

admitted that pursuant to the lease agreement between Eastern Star and Ryder

Truck, Eastern Star would be wholly responsible for the maintenance and repair of

all components added to the leased truck, e.g., the loading ramp. Given that these

facts are deemed admitted, Postell presents no argument to support a conclusion

that summary judgment was improperly granted.

      Lastly, Postell contends that summary judgment was improper because the

district court granted Defendants’ motion for summary judgment before the

completion of discovery. This argument is without merit. According to the district
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court docket, discovery was scheduled to end on January 27, 2012. Defendants

filed their motion for summary judgment on February 15, 2012.

      The district court’s order is AFFIRMED.




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