Parke et al v. Glover et al
ORDER denying 33 Motion to Strike ; granting in part and denying in part 24 Motion for Summary Judgment, as set out. Pre-trial briefs shall be filed on or before 12/5/12 analyzing Alabama law on the breach of contract claim as it applies to the facts in this case. Signed by Judge Kristi K. DuBose on 10/15/2012. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CHARLES RODNEY PARKE, et al.,
ED GLOVER, et al.,
CIVIL ACTION NO. 11-00639-KD-M
This matter is before the Court on the Plaintiffs’ “Motion for Summary Judgment and Motion
to Dismiss Counterclaims of the Defendant[s]” (Doc. 24), filed pursuant to Rule 56 of the Federal
Rules of Civil Procedure, and the Plaintiffs’ Motion to Strike (Doc. 33). For the reasons stated
below, the motion for summary judgment is due to be GRANTED IN PART and DENIED IN
PART, and the motion to strike is due to be DENIED.
This is the second federal suit between the parties. The first suit (Case No. 2:09-cv-00327WS-C, S.D. Ala.) was settled through an agreement in which the Defendants signed three promissory
notes in favor of the Plaintiffs. The Plaintiffs now claim that the Defendants have defaulted on the
notes and request that the Court grant summary judgment in their favor on all claims.
The Defendants do not deny that they have defaulted. Instead, they defend on two grounds.
First, they allege that their default was caused by the Plaintiffs and is thus excused because the
Plaintiffs breached the agreement by interfering with the Defendants’ business activities. Second, the
Defendants contend that some amount of setoff is due.
As to the issue of setoff, the Plaintiffs concede that the Defendants are due a setoff, and both
sides agree that there are issues of fact regarding the amount due to be setoff. (Doc. 37 at 3; Doc. 38
at 2). Therefore, summary judgment is due to be DENIED on the issue of setoff.1
As to whether the Defendants are entitled to be excused from the contract due to actions of
the Plaintiffs, the Court finds that the record is not sufficiently developed to support summary
judgment for any party. Specifically, the Defendants have supported this claim with the affidavit of
Ed Glover (Doc. 31-1).2 While this affidavit is sparse, the Plaintiffs have not rebutted the allegations
contained therein. More importantly, no party has provided sufficient analysis of Alabama law on
the issue.3 Accordingly the motion for summary judgment on the breach of contract claim is due to
For these reasons, the Plaintiffs’ “Motion for Summary Judgment and Motion to Dismiss
Counterclaims of the Defendant[s]” (Doc. 24) is hereby GRANTED as to the Defendants’
counterclaim of “accord and satisfaction” and is hereby DENIED as to all other issues.
Plaintiffs’ Motion to Strike (Doc. 33) is hereby DENIED.
The Defendants also alleged as a defense “accord and satisfaction.” However, the Defendants
concede that they have no evidence to support this claim. (Doc. 38 at 2). Thus, to the extent it was pled
as a counterclaim, summary judgment is due to be GRANTED in favor of the Plaintiffs on this claim.
The Defendants also allege negligence and wantonness. However, these are not alleged as
separate claims for which they seek damages. Rather, these allegations are made in the context of
attempting to prove that the Defendants are excused from performance on the contract.
With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure, it
no longer appears that motions to strike submitted on summary judgment are appropriate. Revised Rule
56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” The Advisory Committee Notes specify as
follows: “Subdivision (c)(2) provides that a party may object that material cited to support or dispute a
fact cannot be presented in a form that would be admissible in evidence. The objection functions much as
an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the
material is admissible as presented or to explain the admissible form that is anticipated. There is no need
to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the
summary-judgment stage does not forfeit the right to challenge admissibility at trial.” Fed. R. Civ. P. 56,
Adv. Comm. Notes, “Subdivision (c)” (2010 Amendments) (emphasis added). As to Mr. Glover’s
affidavit, the Court finds that the majority of the affidavit may be reduced to admissible form at trial, via
Mr. Glover’s in-court testimony. Thus, the Plaintiffs’ Motion to Strike (Doc. 33) is DENIED.
The Defendants have cited an Eleventh Circuit case, R.A.M., LLC v. Hill, 393 F. App’x 684
(2010), that discusses Florida law on the issue.
On the issue of when a party to a contract is excused from performance, Alabama law
The effect of a breach of a contract upon the rights and liabilities of the parties depends
upon the nature of the agreement. If the contract be entire in the sense that each and all its
parts are interdependent, so that one part cannot be violated without violating the whole, a
breach by one party of a material part will discharge the whole at the option of the other
party; but, if the contract be severable,-susceptible of division and apportionment,-the
amount to be paid by the one party depending upon the extent of performance by the other,
the mere failure to perform a part of the contract in strict compliance with its terms will not
of itself necessarily authorize the party injured to refuse further performance. Whart. Cont.
§ 580; 7 Am. & Eng. Enc. Law (2d Ed.) 150; Johnson v. Allen, 78 Ala. 391. Whether a
particular contract is entire or severable depends on the intention of the parties, to be
determined from the language employed and the subject-matter . . . Not every breach of
such a contract by the one party will authorize the other to abandon the contract, and refuse
further performance on his part. The circumstances attending the breach, the intention with
which it was committed, and its effect on the other party and on the general object sought to
be accomplished by the contract, must be considered in determining whether or not the
breach will operate as a discharge. If the circumstances are such as manifest an intention on
the part of the party in default to abandon the contract, or not to comply with its terms in the
future, or if, by reason of the breach, the object sought to be effected is rendered impossible
of accomplishment according to the original design of the parties, the breach will operate as
a discharge of the whole contract unless waived; but no such result follows from a mere
breach of a severable contract unattended with such circumstances or such effect. The right
to claim a discharge of the whole contract depends, not on whether the act constituting the
breach was inconsistent with the terms of the contract, but whether it was inconsistent with
an intention to be further bound by its terms, or whether the breach was such as to defeat
the purpose of the contract.
Worthington v. Given, 24 So. 739, 743 (Ala. 1898).
The parties should be prepared to submit trial briefs that thoroughly analyze Alabama law on
the breach of contract claim as it applies to the facts in this case. The pre-trial briefs shall be filed on
or before Wednesday, December 5, 2012.
DONE and ORDERED this the 15th day of October 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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