BP Products North America Inc v. Merritt Oil Company, Inc. et al
ORDER granting 31 Motion for Partial Summary Judgment. It is ORDERED that BP Products' Motion for Summary Judgment is GRANTED as to Counts I, III, IV, V, and VI of its Complaint. It is FURTHER ORDERED that Count II of the Complaint is DISMISSED as MOOT. Signed by Judge Kristi K. DuBose on 9/8/2011. copies to parties. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
BP PRODUCTS NORTH AMERICA INC., )
MERRITT OIL CO., INC. et al.,
CIVIL ACTION NO. 10-00625-KD-N
This matter is before the Court on Plaintiff BP Products North America Inc.’s Motion for
Summary Judgment (Doc. 31), brief and evidentiary materials in support (Docs. 32, 33 & 41),
Defendant Merritt Oil Co., Inc.’s Response (Doc. 36), Defendant R. Fred Walding’s Response (Doc.
37), and Plaintiff’s Reply (Doc. 38). Upon consideration, and for the reasons set forth herein,
Plaintiff’s motion for summary judgment is due to be GRANTED.
On November 12, 2010, Plaintiff BP Products North America Inc. (“BP Products”) filed a
complaint in this Court against Defendants Merritt Oil Co., Inc. (“Merritt Oil”), Richard Blow
(“Blow”), Richard Merritt (“Merritt”), and R. Fred Walding (“Walding”), alleging breaches of
various contracts and seeking enforcement of certain personal guaranty agreements. (Doc. 1).
Defendants Merritt Oil and Merritt answered the Complaint on December 3, 2010. (Doc. 8). On
December 17, 2010, Defendant Walding filed his answer and simultaneously asserted three crossclaims against his two individual co-defendants. (Doc. 10). Defendant Blow filed his answer on
December 22, 2010 but did not respond to the cross-claims. (Doc. 12). On January 7, 2011, Merritt
answered the allegations of Walding’s cross-complaint. (Doc. 13).
On July 21, 2011, BP Products filed a Motion for Summary Judgment against Merritt Oil and
Walding.1 (Doc. 31). The Court ordered that any response in opposition be filed on or before
August 11, 2011. (Doc. 35). On August 18, 2011 — a week after their papers were due — Merritt
Oil and Walding filed untimely responses.2 (Docs. 36 & 37). The following day, on August 19,
2011, BP Products filed its reply (Doc. 38), and the Court took the fully briefed motion under
Standard of Review
Summary judgment should be granted “if the movant shows 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). If a party asserts that a fact cannot be or is genuinely disputed, that party must
cit[e] to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
show that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)-(B).
BP Products, as the party seeking summary judgment, bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
BP Products did not seek summary judgment against Merritt or Blow, as this case has been
stayed against them as a consequence of their having filed petitions for bankruptcy relief. (Docs. 16,
19, 29 & 30).
Not only were Merritt Oil and Walding’s responses untimely, but Walding’s was unsigned,
thereby violating Federal Rule of Civil Procedure 11(a), Local Rule 5.1(b), and Section II.C.1 of this
district’s Administrative Procedure for Filing, Signing, and Verifying Documents by Electronic
Means. However, as discussed below, because neither defendant’s response identifies a genuine
issue of material fact, Merritt Oil and Walding’s procedural breaches and disregard for this Court’s
briefing order are immaterial to the Court’s analysis.
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). If a non-moving party fails to make a sufficient showing on an essential
element of its case with respect to which it has the burden of proof, the moving party is entitled to
summary judgment. Celotex, 477 U.S. at 323. In reviewing whether a non-moving party has met its
burden, the court must stop short of weighing the evidence and making credibility determinations of
the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in its favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99
(11th Cir. 1992) (internal citations and quotations omitted), cert. denied, 507 U.S. 911 (1993).
In this case, Defendants Merritt Oil and Walding have not challenged any of BP Products’
proposed findings of fact. (Docs. 36 & 37). Merritt Oil expressly concedes BP Products’
entitlement to summary judgment (Doc. 36 at 1), and Walding professes an inability to offer a
“thorough” response to BP Products’ motion, claiming he was denied access to Merritt Oil’s records
between his March 2009 resignation from Merritt Oil and the December 2010 commencement of this
action. (Doc. 37 at 2-3, ¶¶ 9-11). In accordance with Local Rule 7.2(b), the Court considers Merritt
Oil and Walding’s failures to “point out the disputed facts” as admissions that no material factual
dispute exists. See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302-03 (11th Cir. 2009) (giving
deference to district court’s interpretation of local rule providing that, if a party responding to a
summary judgment motion does not directly refute a material fact set forth in the movant’s statement
of material facts with specific citations to evidence or otherwise fails to state a valid objection to the
material fact, such fact will be deemed admitted).
By failing to contest BP Products’ proposed facts, Merritt Oil and Walding have not met
their burden to present evidence upon which the Court could find that there is a genuine issue of
material fact. However, the “mere failure of the non-moving party to create a factual dispute does
not automatically authorize the entry of summary judgment for the moving party.”
Stevedores, Inc. v. Marinic Mar., Ltd., 778 F.2d 670, 673 (11th Cir. 1985). The burden of proof
remains with BP Products. Mann, 588 F.3d at 1303 (“Even in an unopposed motion, the moving
party still bears the burden of identifying the [evidence] which it believes demonstrates the absence
of a genuine issue of material fact.” (internal citation and quotation marks omitted)). Though the
Court “need not sua sponte review all of the evidentiary materials on file at the time the motion is
granted,” United States v. One Piece of Real Prop. Located at 5800 SW 4th Ave., Miami, Fla., 363
F.3d 1099, 1101 (11th Cir. 2004), it must consider the merits of the motion and ensure that it is
supported by the summary judgment record. Id. at 1101-02.
BP Products is a Maryland corporation engaged in the business of selling gasoline, diesel
fuel, and other petroleum products to independent jobbers and dealers. (Doc. 1 at 2, ¶ 3).3 Merritt
Oil, an Alabama corporation, was a jobber that purchased gasoline, diesel fuel, and other petroleum
products from BP Products pursuant to a written contract. (Id., ¶ 4; Doc. 8 at 1, ¶ 4). Defendants
Merritt, Blow, and Walding are Alabama residents who, at various times between 1995 and 2006,
executed Unlimited Guaranties that had the effect of making each of the individual defendants
personally liable for any and all of Merritt Oil’s obligations to BP Products. (Doc. 1-6 at 1-5).
Specifically, and in pertinent part, the Unlimited Guaranties stated that each guarantor:
[u]nconditionally [g]uarantee(s) [p]ayment [w]hen [d]ue, whether by declaration or
otherwise, of any and all indebtedness, including interest thereon, of [Merritt Oil] to
[BP Products], howsoever such indebtedness may arise, whether as principal,
Jobbers are wholesalers who resell BP gasoline, diesel fuels, and petroleum products to the
public through their own retail sites or to independent dealers, who in turn resell the products to the
public. (Doc. 1 at 2, ¶ 3).
guarantor, endorser or otherwise, now or hereafter existing, including but not limited
to payments or indebtedness received by [BP Products] from [Merritt Oil] which [BP
Products]may subsequently be required to relinquish under applicable law because of
[Merritt Oil’s] insolvency, (all such indebtedness being herein called “Debt”), and
agrees to pay all expenses (including attorneys’ fees and legal expenses) incurred by
[BP Products] to collect Debt and in enforcing this guaranty.
(Id.).4 Additionally, each signatory to the Unlimited Guaranties agreed that his liability would be
joint and several. (Id.).
Merritt Oil’s obligations to BP Products arose out of various contracts — a Branded Jobber
Contract; a Jobber Re-Image Program (“JRP”) Contract and a JRP Assignment and Assumption
agreement; two Jobber Outlet Incentive Program (“JOIP”) Contracts and two JOIP Assignment and
Assumption agreements; and an Electronic Point of Sale (“EPOS”) Contract — each of which is
discussed briefly below.
The Branded Jobber Contract
BP Products and Merritt Oil entered into a Branded Jobber Contract dated June 14, 2006
pursuant to which BP agreed to sell, and Merritt Oil agreed to purchase, BP-branded petroleum
products to be resold by Merritt Oil at its approved retail stations. (Doc. 1-1 at 1, ¶ 2). Merritt Oil
further agreed that it would pay for all products, open account items, and all other items and services
via electronic funds transfer; that all BP Products invoices would be deemed valid unless Merritt Oil
objected in writing within 60 days; that BP Products could audit Merritt Oil’s records; and that
Merritt Oil would maintain certain specified image and equipment standards at its stations supplied
by BP Products. (Id. at 2-6, ¶¶ 4(b), 4(d), 5(e), 5(i), 8(b)).
By letter dated July 29, 2009, BP Products terminated its relationship with Merritt Oil under
Two of the Unlimited Guaranties referred to BP Products, two referred to “Amoco Oil
Company,” and one referred to “Amoco Oil Company or its successor, and/or, as the case may be,
BP Exploration & Oil, Inc.” (Doc. 1-6).
the Branded Jobber Contract, alleging that, in violation of the parties’ agreement and certain state
and federal laws, Merritt Oil had comingled motor fuels at a number of its stations. (Doc. 1-3 at 13). The termination was to take effect on August 7, 2009, but BP Products granted Merritt Oil a
one-week extension. (Doc. 1-3 at 4).
Between July 30, 2009 and August 11, 2009 — as Merritt Oil’s contractual relationship with
BP Products was coming to an end — BP Products delivered $683,464.67 of petroleum products to
Merritt Oil. (Doc. 32-2). During that same time period, Merritt Oil made seven wire payments to
BP Products totaling $591,000.00, resulting in a remaining balance of $92,464.67. (Doc. 32-3).
On October 27, 2009 and September 1, 2010, counsel for BP Products sent letters to Merritt
Oil demanding, inter alia, payment of the unpaid fuel balance ($92,464.67) and reimbursement for
expenses incurred in investigating the motor oil comingling ($13,882.66). (Doc. 1-7).5 The letters
also noted that, pursuant to the Unlimited Guaranties, it would hold Messrs. Blow, Merritt, and
Walding personally liable for Merritt Oil’s debt, interest thereon, and BP Products’ attorneys’ fees
and other collection costs unless payment was received in full. (Id.).6 Neither Merritt Oil nor
Walding has rendered any such payment. (Doc. 32-1 at 3-4, ¶¶ 10, 17).
The JRP Contract and the Chattahoochee Assignment
Though a fully executed and dated copy of their agreement has not been placed in the record,
the parties do not dispute that they entered into a JRP Contract pursuant to which BP Products made
funds available to Merritt Oil for the purpose of re-imaging its stations. (Doc. 1-2 at 1-4; Doc. 32 at
Though the October 27, 2009 letter was addressed only to Merritt Oil, the September 1, 2010
letter was sent to Merritt Oil and each of the individual defendants, including Walding.
Merritt Oil agreed to indemnify BP Products from all costs and expenses, including reasonable
attorneys’ fees, arising out of a default or breach of the Branded Jobber Contract by Merritt Oil.
(Doc. 1-1 at 9, ¶ 14). Merritt Oil further agreed to pay BP Products the greater of 8% interest or 2%
over the Prime Rate on all amounts not timely paid by Merritt Oil. (Doc. 1-1 at 2, ¶ 4(c)).
5, ¶ 22; Doc. 36 at ; Doc. 37 at 2-3, ¶¶ 10-11). Additionally, on January 11, 2006, Merritt Oil
assumed responsibility for re-imaging a BP-branded station operated by Chattahoochee Oil Co., Inc.
(“Chattahoochee”) by entering into an Assignment and Assumption of Jobber Re-Image Program
Contract with Chattahoochee.7 (Id. at 5-10).
The JRP Contract between Merritt Oil and BP Products specified that all or some of the reimaging funds provided by BP Products would have to be paid back should Merritt Oil fail to meet
(a) Default. Jobber’s Retail Outlets . . . are permitted to participate in the JRP only
if Jobber at all times: (i) complies with all JRP requirements, including, but not
limited to, the terms and conditions of this JRP Contract; (ii) complies with all other
[BP Products’] marketing contracts, agreements, programs standards and strategies;
and (iii) remains a party to a valid and in-force branded Jobber Contract by and
between Jobber and [BP Products]. Jobber’s violation or inability to comply with
any term or condition of this JRP Contract, permits [BP Products], in its discretion,
to require that Jobber reimburse [BP Products] for payments made by Company,
whether directly or indirectly, for Re-Image Materials and Labor Allowance . . . and
require that Jobber debrand the Retail Outlets.
(Doc. 1-2 at 3, ¶ 7(a)). The repayment provisions of Merritt Oil’s Assignment and Assumption
agreement with Chattahoochee was substantively similar. (Id. at 9, ¶ 6(a)). Applying amortization
rates set forth in the JRP Contracts, BP Products has calculated and made a sufficient, undisputed
showing that Merritt Oil owed $31,111.85 of re-imaging funds after BP Products terminated the
parties’ relationship in 2009 and the Merritt Oil and Chattahoochee stations were debranded. (Doc.
1-2 at 3, ¶ 7(b)(ii); id. at 9, ¶ 6(b)(ii); Doc. 32-1 at 4-5, ¶¶ 20-21; Doc. 32-5). Neither Merritt Oil
nor Walding has rendered any such payment. (Doc. 32-1 at 5, ¶ 22).
Additionally, the JRP Contracts required Merritt Oil to reimburse BP Products for certain
Schedule A to the Assignment and Assumption refers to a station at 2810 Government Street in
Mobile, Alabama, whereas the Complaint and other documents in the record refer to a station at
2810 Government Boulevard. Compare Doc. 1-2 at 6 with Doc. 1 at 5, ¶ 20 and Doc. 32-5. The
Court understands these stations to be one and the same.
costs related to the “Mystery Shop” audit program. (Doc. 1-2 at 2, ¶ 4(c); id. at 8, ¶ 4(c)). BP has
calculated the undisputed amount due to be $1,613.91. Neither Merritt Oil nor Walding has
rendered any such payment. (Doc. 32-1 at 3, ¶ 12).
The JOIP Contracts and the Sterling and Prince Assignments
On May 23, 2005 and June 8, 2007, Merritt Oil entered into JOIP Contracts with BP
Products. (Doc. 1-4 at 1-11). Those contracts provided that, as incentive to build, modernize, or
acquire retail locations, BP Products would pay Merritt Oil either a lump sum or a rebate on gasoline
purchased from BP Products. (Id.). The JOIP Contracts further provided that, in the event that a
retail location covered by the contract was debranded, Merritt Oil would return all or some of the
incentive payments pursuant to an amortization schedule. (Id. at 3-4 ¶¶ 5, 7; id. at 8-9, ¶¶ 5, 7).
Merritt Oil also accepted assignment of two JOIP Contracts involving other jobbers.
Specifically, on May 1, 2001, Merritt Oil accepted assignment of a JOIP Contract between Sterling
Oil Company (“Sterling”) and Amoco Oil Company, and, on February 15, 2007, Merritt Oil
accepted assignment of a JOIP Contract between Prince Oil Company, Inc. (“Prince”) and BP
Products. (Id. at 12-23). Sterling and Prince’s JOIP Contracts were each substantially similar to
Merritt Oil’s JOIP Contracts, and both required the return of unamortized incentive payments should
a covered location be debranded. (Id. at 14-15, ¶¶ 5-6; id. at 20-21, ¶¶ 5, 7).
By virtue of BP Products’ termination of Merritt Oil’s Branded Jobber Contracts, all of the
Merritt Oil, Sterling, and Prince locations receiving JOIP payments debranded on August 15, 2009.
(Doc. 32-6). Applying amortization rates set forth in the JOIP Contracts, BP Products has calculated
and made a sufficient, undisputed showing that the unamortized portion of incentive payments
retained by Merritt Oil was equal to $190,135.04.8 Neither Merritt Oil nor Walding has returned
BP Products has acknowledged that, in preparing Doc. 32-6, an amortization summary of the
those funds. (Doc. 32-1 at 7, ¶ 29).
The EPOS Contract
Sometime between September 25, 2005 and October 31, 2007,9 Merritt Oil entered into an
EPOS Contract with BP Products. (Doc. 41 at 3-5). That contract required Merritt Oil to install
electronic point-of-sale equipment at each of its retail locations. (Id. at 3, ¶ 2). BP Products agreed
to pay the costs associated with the new equipment and its installation. (Id. at 4, ¶ 3). However, in
the event that any of its locations debranded within five years of the EPOS equipment installation
date, Merritt Oil agreed to reimburse all or some of BP Products’ costs pursuant to an amortization
schedule set forth in the contract. (Id., ¶ 5). Additionally, the EPOS Contract required Merritt Oil to
pay BP Products a “system fee” for each of its locations. (Id., ¶ 4).
BP Products has identified 14 Merritt Oil locations that that debranded before the expiration
of the five-year amortization period. (Doc. 32 at 13-14, ¶¶ 69 & 72). Applying the amortization
rates set forth in the EPOS Contract, BP Products has calculated and made a sufficient, undisputed
showing that the unamortized portion of reimbursable equipment and installation costs is equal to
$44,788.41. Neither Merritt Oil nor Walding has reimbursed BP Products in that amount. (Doc. 321 at 8, ¶ 36).
JOIP payments, it miscalculated the unamortized portion to be $192,635.04. (Doc. 32 at 12 n.2;
Doc. 32-1 at 7, ¶ 29). The Court accepts the corrected figure of $190,135.04.
The EPOS Contract placed in the record is undated, but it makes reference to an October 31,
2007 deadline before which Merritt Oil was obligated to install certain telecommunication and
networking hardware and software. (Doc. 41 at 3, ¶ 2). Additionally, it appears that the contract
form itself was revised on September 25, 2005. (Id. at 3-5). Accordingly, the Court uses those two
dates to mark the extreme ends of the period during which the parties entered into their agreement.
“[A] federal court in a diversity case is required to apply the laws, including principles of
conflict of laws, of the state in which the federal court sits.” Manuel v. Convergys Corp., 430 F.3d
1132, 1139 (11th Cir. 2005) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496
(1941)). Alabama courts hold that contract claims are governed by the laws of the state where the
contract was made, unless the contracting parties chose a particular state’s laws to govern their
agreement. Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 506 (Ala. 1991). Though the
parties have neither briefed the question of which state’s law should apply to BP Products’ contract
claims nor put forward any evidence as to where the Branded Jobber, JRP, JOIP, and EPOS
Contracts were made, BP Products’ memorandum in support of its motion cites to Alabama case
law, and the Unlimited Guaranties were executed in Alabama. (Doc. 1-6 at 1, 3-5).10 In the absence
of any dispute from Merritt Oil or Walding, the Court applies Alabama law to each of BP Products’
Breach of Contract
Counts I, III, IV, and V of BP Products’ complaint allege against Merritt Oil breaches of its
Branded Jobber, JRP, JOIP, and EPOS Contracts. (Doc. 1 at 10-14, ¶¶ 44-77). Under Alabama law,
the essential elements of a cause of action for breach of contract are the existence of a valid contract
binding the parties; plaintiff’s performance under the contract; defendant’s nonperformance; and
damages. See, e.g., Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189, 1195 (Ala. 2003).
In this case, each of the elements is met. BP has put before the Court the contracts
Of the five Unlimited Guaranties that BP Products has placed in the record, all but one were
executed in Mobile, Alabama. One of the Unlimited Guaranties, which is undated and unwitnessed,
does not indicate the place of its execution. (Doc. 1-6 at 2).
themselves (Docs. 1-1, 1-2, 1-4 & 41), a sworn affidavit and supporting documentation that attests to
payments and deliveries made by BP Products and receipt of the same by Merritt Oil (Docs. 32-1,
32-2, 32-3 & 32-4), and spreadsheets calculating BP Products’ damages (Docs. 32-5, 32-6 & 32-7).11
Furthermore, Merritt Oil has expressly conceded that BP Products is entitled to prevail on its breach
of contract claims. Accordingly, summary judgment is due to be GRANTED as to Counts I, III, IV,
Count VI of BP Products’ complaint is pled against Defendants Merritt, Blow, and Walding
as an action on guaranty. In Alabama, “[e]very suit on a guaranty agreement requires proof of the
existence of the guaranty contract, default on the underlying contract by the debtor, and nonpayment
of the amount due from the guarantor under the terms of the guaranty.” Delro Indus., Inc. v. Evans,
514 So. 2d 976, 979 (Ala. 1987). If the guaranty is a continuing guaranty (such as the Unlimited
Guaranties at issue in this case), an additional element of notice to the guarantor of the debtor’s
default must also be proven. Sharer v. Bend Millwork Sys., Inc., 600 So. 2d 223, 226 (Ala. 1992).
However, notice need not be given when the terms of the guaranty expressly dispense with the need
for it. Id. Furthermore, when a contract is one of “absolute” or unconditional guaranty (as in this
case), a creditor may pursue its remedy against the guarantor without first seeking to collect from the
principal debtor. Pilalas v. Baldwin Cnty. Sav. & Loan Ass’n, 549 So. 2d 92, 94 (Ala. 1989).
In this case, the uncontroverted evidence shows that Walding executed no fewer than four
Because the documentary record establishes BP Products’ right to summary judgment, the Court
need not — and declines BP Products’ invitation to — decide whether any representation made by
Richard Merritt in a personal bankruptcy filing constitutes a non-hearsay admission binding on
The Court’s decision to grant summary judgment as to BP Products’ breach of contract claims
moots Count II of the Complaint, which asserts an alternative cause of action on an open account.
Unlimited Guaranties (Doc. 1-6 at 1-3 & 5); that Merritt Oil defaulted on its Branded Jobber, JRP,
JOIP, and EPOS Contracts; that Walding never paid the amounts owed to BP Products by Merritt
Oil; and that BP Products notified Walding of Merritt Oil’s default, even though Walding had
expressly waived such notice. Walding’s untimely and unsigned response to BP Products’ motion
for summary judgment is silent as to the elements of an action on guaranty and offers no defense to
BP Products’ claim.
In light of the foregoing, BP Products’ motion for summary judgment is GRANTED as to
Count VI of its complaint concerning the liability of Defendant Walding under the Unlimited
According to BP Products, Merritt Oil owes various amounts under each of its contracts.
(And, as noted above, whatever Merritt Oil owes, Walding also owes by virtue of his Unlimited
Guaranties.) Specifically, BP Product claims $13,882.66 for audit fees, $92,464.67 for unpaid fuel
charges, $1,613.91 for Mystery Shop program fees, $271,735.30 for JRP, JOIP, and EPOS fees,
funds, and costs, and contractual interest in the amount of $44,812.95. (Doc. 32-8). With one
exception, these amounts are sufficiently supported by documentary proof: BP Products contends
that Merritt Oil and Walding owe $5,700.00 in unpaid EPOS system fees (Doc. 1 at 8, ¶ 36; Doc. 32
at 15, ¶ 78; Doc. 32-1 at 9, ¶ 38), but the record supports only $2,500.00 of that claim.13 Otherwise,
the Court finds that BP Products is entitled to the full amount of damages it seeks to recover:
The A/R Statement attached to BP Products’ motion for summary judgment notes $268,535.30
of “Unamortized Re-image, JOIP & Commlinx costs.” (Doc. 32-3 at 2). As the Court has found,
the unamortized portion of re-image payments under the JRP Contract was $31,111.85, and the
unamortized portion of JOIP incentive payments was equal to $190,135.04. Subtracting those
amounts from $268,535.30 yields a difference of $47,288.41. Subtracting the EPOS costs (which
were also known as “CommLinx costs,” pursuant to ¶ 3 of the EPOS Contract), leaves a balance of
$2,500.00, not $5,700.00.
Additionally, once this Court issues a Judgment, BP Products will be entitled to
postjudgment interest at a rate equal to the weekly average 1-year constant maturity Treasury yield
for the calendar week preceding the date of judgment. See 28 U.S.C. § 1961 (2006); Ins. Co. of N.
Am. v. Lexow, 937 F.2d 569, 572 n.4 (11th Cir. 1991) (“[I]n awarding postjudgment interest in a
diversity case, a district court will apply the federal interest statute, 28 U.S.C. § 1961(a), rather than
the state interest statute.”).
The terms of each of the contracts at issue in this case — including the Unlimited Guaranties
— provide for the reimbursement of BP Products’ “reasonable” costs and attorneys’ fees.14 Based
on the Affidavit of Julia M. Voss, Esq. (BP Products’ counsel and an attorney at Greensfelder,
Hemker, & Gale, P.C.), BP Products seeks reimbursement for $32,231.66 in attorneys’ fees. (Doc.
Though BP Products’ entitlement to reasonable attorneys’ fees is uncontested, the Court
cannot award such fees at the present time. Ms. Voss’ barebones affidavit states only that BP has
paid $30,000 to the Greensfelder firm and another $2,231.66 to local counsel. (Id. at 1, ¶ 4). The
affidavit does not provide any detail as to the rates charged for legal work on this case, the number
of hours expended, or the tasks performed. Compounding the affidavit’s insufficiency is that fact
that it is unsupported by any documentary evidence whatsoever (e.g., itemized statements, billing
records, invoices, information as to hourly rates for attorneys, etc.).
The various contracts oscillate between referring to “reasonable attorney’s fees and other costs
of defense” (Branded Jobber Contract), “reasonable expenses and attorneys’ fees” (JRP, JOIP, and
EPOS Contracts), and “attorneys’ fees and legal expenses” (Unlimited Guaranties).
Because a party’s request for fees may be disallowed where the party fails to itemize or
explain what the fees represent or how they were incurred, see, e.g., Vision Bank v. Hill, No. 100333-WS-N, 2011 WL 250430, at *4 n.6 (S.D. Ala. Jan. 25, 2011), BP Products is GRANTED
LEAVE to file, on or before September 22, 2011, a motion for attorneys’ fees and costs supported
by sworn averments of counsel and detailed records that will permit this Court to fashion an award
consonant with the parties’ agreement to shift responsibility for reasonable fees to Merritt Oil.15
Any response should be filed by September 29, 2011.
In accordance with the foregoing, it is ORDERED that BP Products’ Motion for Summary
Judgment (Doc. 31) is GRANTED as to Counts I, III, IV, V, and VI of its Complaint. It is
FURTHER ORDERED that Count II of the Complaint is DISMISSED as MOOT.
DONE and ORDERED this the 8th day of September 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
BP Products is directed to consider the 12 factors that will guide this Court’s assessment of the
reasonableness of its fee request: 1) the time and labor required; 2) the novelty and difficulty of the
questions; 3) the skill required to perform the legal services properly; 4) the preclusion of other
employment by the attorney due to acceptance of the case; 5) the customary fee in the community;
6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or circumstances;
8) the amount involved and the results obtained; 9) the experience, reputation, and ability of the
attorneys; 10) the “undesirability” of the case; 11) the nature and length of the professional
relationship with the client; and 12) awards in similar cases. See Johnson v. Ga. Highway Express,
Inc., 488 F.2d 714, 717-719 (5th Cir. 1974), overruled on other grounds by Blanchard v. Bergeron,
489 U.S. 87 (1989).
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