United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Lozano United States District Court
matter is before the Court on “Plaintiff's Motion
for Partial Summary Judgment, ” filed by the plaintiff,
Nutra-Blend, LLC, on July 21, 2016. (DE #17.) For the reasons
set forth below, the motion for partial summary judgment is
GRANTED. The Clerk is DIRECTED to enter judgment in favor of
the plaintiff, Nutra-Blend, LLC, in the amount of $84, 323.94
on Count 1. The remaining Counts are DISMISSED, and the Clerk
is DIRECTED to close this case.
December 2, 2015, Nutra-Blend, LLC
(“Nutra-Blend”) filed a three count complaint
before this Court against Bell Aquaculture, LLC
(“Bell”). (DE #1.) Nutra-Blend brings claims for
recovery of the purchase price (under I.C. §
26-1-2-607(1) and I.C. § 26-1-2-709(1)(a)) (“Count
1”), breach of contract (“Count 2”), and
recovery of “account stated” (“Count
3”). (Id. at 3-5.) On January 25, 2016, Bell
filed its answer. (DE #10.) On July 21, 2016, Nutra-Blend
filed the instant motion for partial summary judgment. (DE
#17.) In it, Nutra-Blend argues that it is entitled to
judgment as a matter of law on Count 1. (Id.) It
requests judgment in the amount of $84, 323.94, “which
represents the amount due under the invoices for the goods
supplied by Nutra-Blend to Bell.” (Id. at 2.)
Nutra-Blend states that it consents to the dismissal of its
remaining claims if the motion for partial summary judgment
is granted. (Id.) Nutra-Blend filed its brief in
support and the affidavit (with relevant exhibits) of Darren
D. Swisher, a Credit Analyst employed by Nutra-Blend
(“Swisher”), the same day it filed its motion.
(DE #17 & DE #19.) To date, Bell has not filed a
response, and the time to do so has long since passed. Thus,
the motion is ripe for adjudication.
judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). Not every dispute between the parties
makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Id. To determine whether a genuine
dispute of material fact exists, the Court must construe all
facts in the light most favorable to the non-moving party and
draw all reasonable inferences in that party's favor.
See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.
opposing a properly supported summary judgment motion may not
rely on allegations in his own pleading but rather must
“marshal and present the court with the evidence [he]
contends will prove [his] case.” Goodman v.
Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir.
2010). “[I]nferences relying on mere speculation or
conjecture will not suffice.” Stephens v.
Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citation
omitted). If the non-moving party fails to establish the
existence of an essential element on which he bears the
burden of proof at trial, summary judgment is proper. See
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Rule 56-1 describes the specific obligations of both the
moving party and the non-moving party when a motion for
summary judgment is filed. The moving party must file a
“‘Statement of Material Facts' that
identifies the facts that the moving party contends are not
genuinely disputed.” N.D. Ind. L.R. 56-1(a). The party
opposing the motion must respond within twenty-eight days
with a “Statement of Genuine Disputes” that sets
forth the “material facts that the party contends are
genuinely disputed so as to make a trial necessary.”
N.D. Ind. L.R. 56-1(b)(2). A failure to respond as required
by the local rules constitutes an admission. See Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Michas v.
Health Cost Controls of Ill., Inc., 209 F.3d 687, 689
(7th Cir. 2000). However, even when an opposing party fails
to respond to a summary judgment motion altogether, Federal
Rule of Civil Procedure 56(e) permits judgment for the moving
party only if the movant is entitled to it. In other words,
summary judgment may only be granted “if
appropriate-that is, if the motion demonstrates that
there is no genuine issue of material fact and that
the movant is entitled to judgment as a matter of law.”
LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 392
(7th Cir. 1995) (quoting Johnson v. Gudmundsson, 35
F.3d 1104, 1112 (7th Cir. 1994) (emphasis in original).
Bell has failed to file a response and has not identified any
material disputes, the facts as claimed and properly
supported by Nutra-Blend in its Statement of Material Facts
are deemed admitted to exist without controversy. This Court
has reviewed the following facts and finds that they are
adequately supported with appropriate citations to evidence
in the record. While Nutra-Blend's Statement of Material
Facts is approximately two and a half pages in length, this
Court need not restate each and every fact that is deemed
admitted; only the facts that are pivotal in resolving the
instant motion are included in this order.
is engaged in the business of producing and distributing
vitamin, nutrient, and mineral products. (Swisher Aff. ¶
3.) Bell is engaged in the business of operating a commercial
aquaculture facility (fish farm), and its aquaculture
facility is located in or near Albany, Indiana. (Id.
at ¶ 4.) Nutra-Blend formerly sold feed additives and
other products to Bell on credit, and Bell fed those products
to the fish at its Albany facility. (Id. at ¶
5.) During the years of 2014 and 2015, Bell ordered and
received certain feed additives and other products from
Nutra-Blend (the “Products”) on credit.
(Id. at ¶ 6.) Nutra-Blend delivered the
Products to Bell at its facility in Albany, Indiana.
(Id. at ¶ 7.) Bell did not reject or return any
of the Products; however, it failed to pay for them.
(Id. at ¶¶ 8-9.) The unpaid principal
balance due to Nutra-Blend for the Products is $84, 323.94.
(Id. at ¶ 10; Exhibits A & B).
repeatedly contacted Bell to obtain payment of the invoices
for the Products. (Swisher Aff. ¶ 11.) Swisher
communicated primarily with Bell's Accounting
Coordinator, Leona Hill (“Hill”). (Id.)
Neither Hill nor any other representative from Bell disputed
the invoices for the Products in any manner. (Id.)
According to Swisher, Hill repeatedly acknowledged Bell's
obligation to pay the invoices for the Products and claimed
that those ...