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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
RECYCLING SOLUTIONSTECHNOLOGY, LLC, et al.,


Plaintiffs,
v.
DAVID E. ROSENBERG, et al.,
Defendants.
))))))))))
Civil Action No. 10-55-ART
MEMORANDUM OPINION
AND ORDER


***   ***   ***   ***
Beauty may be in the eye of the beholder, but summary judgment requires something abit more concrete.  The parties in this case, looking at the same evidence, see very differentthings.  One of the defendants, David Rosenberg, believes the evidence indisputably establishesthat he is not liable to the plaintiffs.  The plaintiffs, however, believe that the exact sameevidence indisputably establishes that Rosenberg is liable.  Each side has moved for partialsummary judgment against the other.  They are both wrong.  A reasonable jury could return averdict for either party.  The cross-motions for summary judgment, R. 43, 44, are thereforedenied.
BACKGROUND
Michael Branham had his eye on a coal company, DFM Coal.  But coal companies arenot cheap.  The purchase price was $20,000,000.  Like most people, Branham did not have thatkind of money laying around.  So he tried to secure a loan through Quest Corporation, acompany that specializes in arranging such transactions.  Quest, of course, would not loan
$20,000,000 to just anybody.  It required due diligence, and it also required Branham to obtaina Bank Instrument Letter of Credit for the full face value of the loan as secondary collateral.  Tothis end, Branham agreed to place $720,000 (approximately 3.5% of the total value of the loan)in escrow while Quest assured itself that Branham was creditworthy.  Branham borrowed the$720,000 from the plaintiffs, Recycling Solutions Technology (

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