United States District Court, Southern District of Indiana, Evansville Division
ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
WILLIAM G. HUSSMANN, JR. MAGISTRATE JUDGE
This matter is before me, William G. Hussmann, Jr., United States Magistrate Judge, on Defendant Standard M Processing, Inc.’s Motion for Summary Judgment (Filing No. 31), the parties’ consent (Filing No. 21), and Judge Barker’s Order of Reference (Filing No. 22). The motion is fully briefed. (See Filing No. 32; Filing No. 35; Filing No. 37.) Having considered the Motion, the parties’ submissions, and relevant law, and being duly advised, I hereby GRANT the Motion.
I. Summary Judgment Standard
A court must grant summary judgment on a claim or defense “where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Bunn Khoury Enters., Inc., 753 F.3d 676, 681 (7th Cir. 2014); Fed. R. Ci P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a factual dispute is “genuine”-precluding summary judgment-“only when the evidence could support a reasonable jury’s verdict for the non-moving party.” Crawford Countrywide Home Loans, Inc., 647 F.3d 642, 650 (7th Cir. 2011).
The movant “bears an initial burden of proving there is ‘no material question of fact with respect to an essential element of the non-moving party’s case.’” MMG Fin. Corp. Midwest Amusements Park, LLC, 630 F.3d 651, 657 (7th Cir. 2011) (quoting Delta Consulting Grp., Inc. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009)). That burden is formidable, and courts should exercise caution in granting summary judgment. See Anderson, 477 U.S. at 255. If the movant succeeds, the nonmovant then must present “evidence raising a genuine issue of material fact.” MMG Fin. Corp., 630 F.3d at 657. The nonmovant need not “clearly prove” his case to avoid summary judgment; he can survive by raising evidence of specific facts that would “permit” a jury to decide in his favor. Williams City of Chicago, 733 F.3d 749, 760 (7th Cir. 2013).
“At summary judgment a court may not assess the credibility of witnesses, choose between competing inferences or balance the relative weight of conflicting evidence; it must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in favor of the non-moving party.” Abdullahi City of Madison, 423 F.3d 763, 773 (7th Cir. 2005) (citing Anderson, 477 U.S. at 255). Effectively, the movant asks “the court to apply the law to only the [nonmovant]’s version” of the events.
See Norris Bain, No. 1:04-cv-1545-DFH-TAB, 2006 WL 753131, at *1 (S.D. Ind. Mar. 21, 2006).
II. Facts and Procedural History
Plaintiff Midwest Investment Partners, LLC purchased stock in Defendant Standard M s Processing, Inc. on August 18, 2011. (Filing No. 1-2 at ¶ 6; Filing No. 14 at ¶ 6.) Midwest explains that its purchase was exempt from registration with the Securities and Exchange Commission. (See Filing No. 1-2 at ¶ 7.) But, because the sale was not registered, Standard issued Midwest’s stock certificate with a “restrictive legend” printed on the back. (Filing No. 1-2 at ¶¶ 8–9; Filing No. 14 at ¶ 9.)
The legend explains that the shares represented by the certificate “have not been registered” because they were “acquired for investment and without a view to their distribution . . . .” (Filing No. 1-2 at ¶ 9; Filing No. 14 at ¶ 9.) The legend further states that the shares may not be resold until one of two criteria is met. First, the parties may register the shares under the Securities Act. (Filing No. 1-2 at ¶ 9; Filing No. 14 at ¶ 9.) Or, second, Standard must be satisfied-based on the opinion of an attorney-that the resale is exempt from registration. (Filing No. 1-2 at ¶ 9; Filing No. 14 at ¶ 9.)
By late 2013, Midwest sought to sell its shares in Standard. Believing it qualified to resell its shares without registration, Midwest asked Standard to issue a new certificate with no restrictive legend. Standard initially was amenable to that plan, but it subsequently communicated to Midwest that its broker refused to issue a new certificate without a letter from an attorney opining that Midwest was entitled to resell without restriction. (See Filing No. 35-2 at ECF p. 1; Filing No. 32-1 at ECF p. 1.) Standard also communicated that it could not issue an opinion letter because Standard would have to “make certain representations about Midwest Investment Partners, which Standard . . . cannot do under the circumstances.” (See Filing No. 32-1 at ECF p. 1.)
Standard invited Midwest to seek an opinion letter from a qualified attorney and furnished a template. (See Filing No. 35-2 at ECF p. 1; Filing No. 32-1 at ECF pp. 1–3.) The parties have continued to exchange correspondence about securing an opinion letter (see Filing No. 35-3 at ECF pp. 1–6), but Midwest has not yet presented one to Standard.
On March 17, 2014, Midwest initiated this lawsuit. (See Filing No. 1-2 at ECF p. 3.) Midwest asks the Court to enjoin Standard “to issue new stock certificates without any transfer restriction” based on Indiana Code § 26-1-8.1-401. (See at ¶¶ 14–15.) Midwest also seeks damages on the theory that Standard’s refusal to issue new certificates robbed Midwest of the opportunity to sell its shares at a higher price than it could take now. (See at ¶¶ 17–18.)
Standard has moved for summary judgment, arguing that Midwest’s case has been undone by its failure ...