A.E. Petsche Co., Inc. v. JKM Manufacturing, Inc., et al
MEMORANDUM OPINION AND ORDER directing that Plaintiff's 32 motion for summary judgment is GRANTED, as further set out; further ORDERED that Plaintiff's 34 motion for order is DENIED as moot. Signed by Chief Judge William Keith Watkins on 4/29/13. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
A.E. PETSCHE CO., INC.,
JKM MANUFACTURING, INC.,
CASE NO. 2:12-CV-919-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff’s motion for partial summary judgment against Defendant JKM
Manufacturing, Inc., is before the court. (Doc. # 32.) Defendant, an unrepresented
corporation, has not responded. For reasons that follow, the motion is due to be
I. JURISDICTION AND VENUE
Jurisdiction over this action is proper pursuant to 28 U.S.C. § 1332. Personal
jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that 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). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial responsibility
of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the
record illustrating the absence of a genuine dispute of material fact. Id. If the movant
meets its evidentiary burden, the burden shifts to the nonmoving party to establish –
with evidence beyond the pleadings – that a genuine dispute material to each of its
claims for relief exists. Id. at 324. A genuine dispute of material fact exists when the
nonmoving party produces evidence allowing a reasonable factfinder to return a
verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279
(11th Cir. 2001).
“[T]he district court cannot base the entry of summary judgment on the mere
fact that the motion was unopposed, but, rather, must consider the merits of the
motion.” United States v. One Piece of Prop., 5800 S.W. 4th Ave., Miami, Fla., 363
F.3d 1099, 1101 (11th Cir. 2004). The court, however, “need not sua sponte review
all of the evidentiary materials on file at the time the motion is granted, but must
ensure that the motion itself is supported by evidentiary materials.” Id.
A.E. Petsche makes widgets.1 JKM uses widgets to make other things. For
years, A.E. Petsche and JKM had an arrangement – A.E. Petsche gave JKM widgets;
JKM gave A.E. Petsche money in exchange.
One day, JKM stopped paying A.E. Petsche for its widgets; but it kept taking
delivery of them. There was nothing wrong with the widgets; JKM just did not pay.
A.E. Petsche filed this lawsuit to recover money it is owed for the widgets JKM took
but never paid for. JKM filed an answer on November 21, 2012. (Doc. # 15.)
On February 7, 2013, counsel for JKM withdrew from this case, leaving JKM
unrepresented. (Doc. # 31.) The court ordered JKM to find new counsel by March
11, 2013. (Doc. # 31, at 1.) That deadline has come and gone, and JKM remains
On February 25, 2013, A.E. Petsche moved for summary judgment against JKM
(but not against the individual defendants, one of whom is represented by counsel).
Specifically, A.E. Petsche makes “high-performance interconnect products (including
wire, cable, connectors, and harness products),” (Doc. # 33, at 1–2) – in short, “widgets.”
The deadline for JKM’s opposition brief was March 18, 2013, but JKM did not
The court is, of course, aware that JKM’s failure to oppose summary judgment
is an instance of necessity rather than neglect – without counsel, JKM cannot file a
response. See Rowland v. California Men's Colony, Unit II Men's Advisory Council,
506 U.S. 194, 201–02 (1993) (“It has been the law for the better part of two centuries,
for example, that a corporation may appear in the federal courts only through licensed
counsel.”). The court is reluctant to grant summary judgment without hearing both
sides of the argument, especially when JKM’s silence is an unavoidable consequence
of its unrepresented status.
But JKM’s trouble keeping a lawyer is not A.E. Petsche’s fault, and it is
understandable that A.E. Petsche is eager to resolve this case. It is the inaction of
JKM, not A.E. Petsche, that impedes the speedy resolution of this lawsuit, and there
is nothing to gain from further delay.2 Under the circumstances, the court must move
forward and consider A.E. Petsche’s motion for summary judgment on its merits.
Even if the court extended the deadline to oppose summary judgment, JKM could not
respond without counsel.
Although A.E. Petsche’s complaint alleges nine causes of action against JKM,
its motion for summary judgment only argues one – JKM is liable for breach of
contract.3 In support of that claim, A.E. Petsche provides evidence that (1) JKM had
a contractual obligation to pay A.E. Petsche for any widgets delivered, (2) JKM took
delivery of $707,990.92 worth of widgets, and (3) JKM never paid. That evidence is
sufficient to establish JKM’s liability for breach of contract in the amount of
$707,990.92 plus $173,318.96 interest (which was provided for in the contracts).
Further, A.E. Petsche has presented evidence that JKM agreed to pay for “all
costs and expenses incurred by [A.E. Petsche] in collecting any sums owing by [JKM]
(which may include, but are not limited to, collection agency and reasonable
attorneys’ fees.)” (Doc. # 33, at 12.) Thus, JKM is liable for the $27,168 in attorneys’
fees A.E. Petsche spent litigating this case, which the court finds are reasonable and
were necessarily incurred.
Accordingly, it is ORDERED that Plaintiff’s motion for summary judgment
(Doc. # 32) is GRANTED. But the court will withhold final judgment until it
Because A.E. Petsche did not move for summary judgment on any of the other claims,
this opinion will only address the contract claim. A.E. Petsche amply supports the contract claim
with evidence, including the claim for attorneys’ fees.
adjudicates “all of the claims and all the parties’ rights and liabilities.” Fed. R. Civ.
It is further ORDERED that Plaintiff’s motion for order (Doc. # 34) is DENIED
DONE this 29th day of April, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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