Amerisourcebergen Drug Corporation v. Izz and Sons, Inc. et al
Filing
67
ORDER granting in part and denying in part 47 Motion for Summary Judgment. Signed by Magistrate Judge John J. O'Sullivan on 8/28/2012. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-cv-23895-O’SULLIVAN
[CONSENT]
AMERISOURCEBERGEN DRUG
CORPORATION, a foreign corporation,
Plaintiff,
v.
IZZ AND SONS, INC., a Florida
corporation; RDS PHARMACY
MANAGEMENT, INC., a Florida
corporation; PHARMACY ONE, INC.,
a Florida corporation; AIMAN IZZEDIN
ARYAN, an individual and IZZEDIAN
ARYAN, an individual,
Defendants.
________________________________/
ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion for Final Summary
Judgment and Supporting Memorandum of Law (DE# 47, 5/8/12). Having reviewed the
applicable filings and the law, it is ORDERED AND ADJUDGED that Plaintiff’s Motion
for Final Summary Judgment and Supporting Memorandum of Law (DE# 47, 5/8/12) is
GRANTED in part and DENIED in part for the reasons set forth below.
BACKGROUND
On October 28, 2011, the plaintiff, AmerisourceBergen Drug Corporation
(hereinafter "AmerisourceBergen" or "plaintiff"), commenced this action alleging four
causes of action against the defendants: appointment of a receiver (Count I), prejudgment attachment and garnishment (Count II), breach of contract (Count III) and
breach of guaranties (Count IV). See Complaint (DE# 1, 10/28/11).
On May 8, 2012, the plaintiff filed the instant motion seeking final judgment on
Count I (appointment of a receiver), Count II (pre-judgment attachment and
garnishment), Count III (breach of contract) and Count IV (breach of guaranties) of the
Complaint (DE# 1). See Plaintiff's Motion for Final Summary Judgment and Supporting
Memorandum of Law (DE# 47 at 1, 5/8/12). The plaintiff also filed Plaintiff's Statement
of Undisputed Material Facts in Support of Plaintiff's Motion for Summary Final
Judgment (DE# 48, 5/8/12) and the Plaintiff's Corrected1 Notice of Filing Affidavit in
Support of its Motion for Summary Final Judgment (DE# 65, 8/21/12). The Court
provided the defendants with an extension of time up to and including August 16, 2012
to file a response to the instant motion. See Order (DE# 62, 7/20/12). To date, the
defendants have not filed their response to the instant motion. This matter is now ripe
for consideration.
FACTS2
The plaintiff has supplied pharmaceuticals to defendants Izz and Sons, Inc.,
RDS Pharmacy Management, Inc. and Pharmacy One, Inc. (collectively the "defendant
1
The initial affidavit of Roger McMullen filed with the Court was not executed or
notarized. See Plaintiff's Notice of Filing Affidavit in Support of its Motion for Summary
Final Judgment (DE# 49, 5/8/12).
2
The facts contained in this section are from the Plaintiff's Statement of
Undisputed Material Facts in Support of Plaintiff's Motion for Summary Final Judgment
(DE# 48, 5/8/12). Local Rule 56.1(b) states that: "[a]ll material facts set forth in
the movant’s statement . . . will be deemed admitted unless controverted by the
opposing party’s statement, provided that the Court finds that the movant’s statement is
supported by evidence in the record." S.D. Fla. L.R. 56.1(b). Here, the defendants have
not responded to the plaintiff's statement of undisputed material facts and the Court
finds that the statement is supported by the evidence in the record. Accordingly, the
facts contained in the Plaintiff's Statement of Undisputed Material Facts in Support of
Plaintiff's Motion for Summary Final Judgment (DE# 48, 5/8/12) are deemed admitted.
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entities") since 2001. See Plaintiff's Statement of Undisputed Material Facts in Support
of Plaintiff's Motion for Summary Final Judgment (DE# 48 at ¶2, 5/8/12) (citing
Complaint (DE# 1 at ¶¶24, 32, 10/28/11); Answer (DE# 31 at ¶¶24,32, 12/16/11)). The
plaintiff entered into credit agreements with the defendant entities. Id. at ¶3 (citing
Complaint (DE# 1 at Exhibit A, K and P, 10/28/11); Answer (DE# 31 at ¶11, 12/16/11)).
The credit agreements stated that in exchange for providing pharmaceuticals to the
defendant entities, the defendant entities would pay the agreed upon charges to the
plaintiff. Id. The defendant entities failed to pay the plaintiff for all the pharmaceuticals
which had been sold to them by the plaintiff. See Affidavit of Roger McMullen in
Support of Plaintiff's Motion for Summary Final Judgment (DE# 65-1 at ¶5, 8/21/12).
The failure to pay for the pharmaceuticals constituted a default under each of the credit
agreements entered into by the defendant entities. See Plaintiff's Statement of
Undisputed Material Facts in Support of Plaintiff's Motion for Summary Final Judgment
(DE# 48 at ¶12, 5/8/12) (citing Complaint (DE# 1 at Exhibit A, K and P, 10/28/11)).
Defendant Aiman Izzedin Aryan gave his personal guaranties of the
financial performance and debts of the defendant entities memorialized in the credit
agreements. See Plaintiff's Statement of Undisputed Material Facts in Support of
Plaintiff's Motion for Summary Final Judgment (DE# 48 at ¶5, 5/8/12) (citing Complaint
(DE# 1 at ¶¶12, 18, 19, 29 and 35, 10/28/11); Answer (DE# 31 at ¶¶12, 18, 29 and 35,
12/16/11)). Defendant Izzedian Aryan gave his personal guaranty of the financial
performance and debts of Pharmacy One, Inc. memorialized in the credit agreement.
Id. at ¶7 (citing Complaint (DE# 1 at ¶35, 10/28/11); Answer (DE# 31 at ¶35, 12/16/11)).
Defendants RDS Pharmacy Management, Inc. and Pharmacy One, Inc. gave their
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guaranty of the financial performance and debts owed to the plaintiff by Izz and Sons,
Inc. Id. at ¶¶9-10 (citing Complaint (DE# 1 at ¶20, 10/28/11); Answer (DE# 31 at ¶20,
12/16/11)). Defendants Aiman Izzedin Aryan, Izzedian Aryan, RDS Pharmacy
Management, Inc. and Pharmacy One, Inc. have failed to pay the amounts due under
their guaranty obligations. See Affidavit of Roger McMullen in Support of Plaintiff's
Motion for Summary Final Judgment (DE# 65-1 at ¶5, 13-16, 8/21/12).
STANDARD OF REVIEW
The Court, in reviewing a motion for summary judgment, is guided by the
standard set forth in Federal Rule of Civil Procedure 56(a), which states, in relevant
part, as follows:
A party may move for summary judgment, identifying each claim or
defense -- or the part of each claim or defense -- on which summary
judgment is sought. The court shall grant summery judgment 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. The court should state
on the record the reasons for granting or denying the motion.
Fed. R. Civ. P. 56(a).
The moving party bears the burden of meeting this exacting standard. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, "[t]he moving party bears 'the
initial responsibility of informing the . . . [C]ourt of the basis for its motion, and
identifying those portions of the 'pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.'" U.S. v. Four Parcels of Real Prop., 941
F.2d 1428, 1437 (11th Cir. 1991) (quoting Celotex, 477 U.S. at 323). In assessing
whether the moving party has satisfied this burden, the Court is required to view the
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evidence and all factual inferences arising therefrom in the light most favorable to the
non-moving party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir. 1994). Summary
judgment is appropriate when there is no dispute as to any material fact and only
questions of law remain. Id. If the record presents factual issues, the Court must deny
the motion and proceed to trial. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Despite these presumptions in favor of the non-moving party, the Court must be
mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense
to the parties and to the Court occasioned by an unnecessary trial. Celotex, 477 U.S. at
322-23. Consequently, the non-moving party cannot merely rest upon his bare
assertions, conclusory allegations, surmises or conjectures. Id. As the Supreme Court
noted in Celotex:
[T]he plain language of Rule 56(a) mandates the entry of summary
judgment . . . against the party who fails to make a showing sufficient to
establish the existence of an element essential to the party's case, and on
which the party will bear the burden of proof at trial. In such a situation,
there can be "no genuine issue as to any material fact," since a complete
failure of proof concerning an essential element of the non-moving party's
case necessarily renders all other facts immaterial.
Id. at 322-323. Thus, the mere existence of a scintilla of evidence in support of the nonmoving party's position is insufficient. There must be evidence on which the [trier of
fact] could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251 (1986).
ANALYSIS
1.
Summary Judgment on the Appointment of a Receiver (Count I) and PreJudgment Attachment and Garnishments (Count II).
The plaintiff seeks summary judgment on Counts I (appointment of a receiver)
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and II (pre-judgment attachment and garnishment) of the Complaint (DE# 1, 10/28/11).
See Plaintiff's Motion for Final Summary Judgment (DE# 47 at 6 n.2, 5/8/12). The
totality of the plaintiff's argument in support of summary judgment on Counts I and II of
the Complaint (DE# 1) is contained in the following footnote: "Considering the
procedural history of this case and its present posture, and specifically since the
deadline for amending the pleadings has passed, AmerisourceBergen believes that
judgment in its favor on Counts I and II is appropriate." Id. At the outset of these
proceedings the plaintiff filed Plaintiff's Renewed Emergency Motion for Emergency
Hearing on its Emergency Motion for Prejudgment Attachment and Garnishment,
Expedited Discovery and Supporting Memorandum of Law (DE# 17, 11/15/11). On
November 23, 2011, the Court entered an Agreed Order on Plaintiff's Renewed
Emergency Motion, Etc. (DE# 24, 11/23/11) which appointed Margaret J. Smith, CPA
as the Monitor in this case.
The plaintiff's request for summary judgment on Count I (appointment of a
receiver) is DENIED as moot. The plaintiff has failed to show the continued need for a
receiver in the instant case and the Court has already appointed Ms. Smith as the
Monitor. The plaintiff's request for summary judgment on Count II (pre-judgment
attachment and garnishment) is DENIED as moot because the Court will enter
judgment in favor of the plaintiff and against the defendants in conjunction with this
Order.
2.
Summary Judgment on Breach of Contract Claim (Count III)
The plaintiff also seeks summary judgment on its breach of contract claim (Count
III) against the defendant entities, Izz and Sons, Inc., RDS Pharmacy Management, Inc.
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and Pharmacy One, Inc. See Plaintiff's Motion for Final Summary Judgment (DE# 47,
5/8/12). The elements of a breach of contract claim under Florida law are: a valid
contract, a material breach and damages. See Beck v. Lazard Freres & Co., LLC, 175
F.3d 913, 914 (11th Cir. 1999). In the instant case, the plaintiff entered into credit
agreements with the defendant entities. See Plaintiff's Statement of Undisputed
Material Facts in Support of Plaintiff's Motion for Summary Final Judgment (DE# 48 at
¶3, 5/8/12) (citing Complaint (DE# 1 at Exhibit A, K and P, 10/28/11); Answer (DE# 31
at ¶11, 12/16/11)). The credit agreements stated that in exchange for providing
pharmaceuticals to the defendant entities, the defendant entities would pay the agreed
upon charges to the plaintiff. Id. The defendant entities failed to pay the plaintiff for all
the pharmaceuticals sold to them by the plaintiff. See Affidavit of Roger McMullen in
Support of Plaintiff's Motion for Summary Final Judgment (DE# 65-1 at ¶5, 8/21/12).
The failure to pay for the pharmaceuticals constituted a default under each of the credit
agreements entered into by the defendant entities. See Plaintiff's Statement of
Undisputed Material Facts in Support of Plaintiff's Motion for Summary Final Judgment
(DE# 48 at ¶12, 5/8/12) (citing Complaint (DE# 1 at Exhibit A, K and P, 10/28/11)). The
plaintiff suffered damages as a result of the defendant entities' breach of their credit
agreements. See Affidavit of Roger McMullen in Support of Plaintiff's Motion for
Summary Final Judgment (DE# 65-1 at ¶¶6-12, 8/21/12).
Because the defendant entities entered into credit agreements with the plaintiff,
defaulted on their obligations and caused the plaintiff damages, there are no disputed
material issues of fact as to the breach of contract claim asserted in Count II of the
Complaint (DE# 1) and the plaintiff is entitled to summary judgment on that claim.
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3.
Summary Judgment on Breach of Guaranties Claim (Count IV)
In the instant motion, the plaintiff states that "[i]n Count IV of the Complaint,
AmeirsourceBergen seeks recovery against Defendants A. Aryan, I. Aryan, RDS, and
Pharmacy One on account of their Guaranties of the various Defendant Entities' debts
owed to AmerisourceBergen." Plaintiff’s Motion for Final Summary Judgment and
Supporting Memorandum of Law (DE# 47 at 10, 5/8/12). In Florida, a cause of action
for breach of a guaranty arises from a debtor's default and the guarantor's subsequent
failure to pay. Brunswick Corp. v. Creel, 471 So. 2d 617, 618 (Fla. 5th DCA 1985). It is
undisputed that the defendant entities have defaulted on their credit agreements with
the plaintiff and that no payments have been made to the plaintiff by the defendant
entities or the guarantors of those credit agreements. See Complaint (DE# 1 at 19-20,
10/28/11); Answer (DE# 31 at ¶12/16/11)). Therefore no material issue of fact exists to
be disputed at trial and the plaintiff is entitled to final summary judgment on the breach
of guaranties claim alleged in Count IV of the Complaint (DE# 1, 10/28/12) as to
defendants Aiman Izzedin Aryan, Izzedian Aryan, RDS Pharmacy Management, Inc.
and Pharmacy One, Inc.
4.
Amounts of the Judgment
The total amount owed by defendant Izz and Sons, Inc. to the plaintiff is
$908,217.44.3 This amount is calculated as follows. The principal amount for goods and
services totaled $731,035.11. See Affidavit of Roger McMullen in Support of Plaintiff's
Motion for Summary Final Judgment (DE# 65-1 at ¶7, 8/21/12). The amount of the note
totaled $119,356.82. Id. As of April 15, 2012, the interest owed on the delinquent
3
The plaintiff's calculation is off by a penny.
8
invoices was $8,115.12 and the interest owed on the note was $49,710.38. Id.
The total amount owed by defendant RDS Pharmacy Management, Inc. to the
plaintiff is $1,142,687.08. This amount is calculated as follows. The principal amount for
goods and services totaled $217,520.71. See Affidavit of Roger McMullen in Support of
Plaintiff's Motion for Summary Final Judgment (DE# 65-1 at ¶9, 8/21/12). The interest
owed on the delinquent invoices as of April 15, 2012 was $16,948.93. Id. The guaranty
obligation on behalf of defendant Izz and Sons, Inc. was $908,217.44. See supra.
The total amount owed by defendant Pharmacy One, Inc. to the plaintiff is
$1,740,392.62. This amount is calculated as follows. The principal amount for goods
and services totaled $766,682.31. See Affidavit of Roger McMullen in Support of
Plaintiff's Motion for Summary Final Judgment (DE# 65-1 at ¶11, 8/21/12). The interest
owed on the delinquent invoices as of April 15, 2012 is $65,492.87. Id. The guaranty
obligation on behalf of defendant Izz and Sons, Inc. was $908,217.44. See supra.
The total amount owed by defendant Aiman Izzedin Aryan to the plaintiff is
$1,974,862.26. This amount is calculated as follows. Defendant Aiman Izzedin Aryan
guaranteed the debt of defendant Izz and Sons, Inc., RDS Pharmacy Management, Inc.
and Pharmacy One, Inc. The amount owed by defendant Izz and Sons, Inc. to the
plaintiff is $908,217.44. See supra. The amount of principal and interest owed by
defendant RDS Pharmacy Management, Inc. on the debt is $234,469.64 ($217,520.71
plus $16,948.93). Id. The amount of principal and interest owed by defendant
Pharmacy One, Inc. on the debt is $832,175.18 ($766,682.31 plus $65,492.87). Id.
The total amount owed by defendant Izzedian Aryan to the plaintiff is
$1,740,392.62. Defendant Izzedian Aryan gave his personal guaranty of the financial
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performance and debts of Pharmacy One, Inc. This is the amount owed by defendant
Pharmacy One, Inc. to the plaintiff. See supra.
CONCLUSION
Based on the foregoing, the plaintiff has shown that it is entitled to final summary
judgment as a matter of law on Counts III and IV of the Complaint (DE# 1, 10/28/12).
As such, the Plaintiff’s Motion for Summary Judgment (DE# 47, 5/8/2012) is GRANTED
in part and DENIED in part for the reasons stated herein. The Court will enter a
judgment in a separate Order. It is further
ORDERED AND ADJUDGED that the October 1, 2012 trial date and all other
pretrial hearings and deadlines are CANCELLED.
DONE AND ORDERED in Chambers at Miami, Florida this 28th day of August,
2012.
_________________________________
JOHN J. O'SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
All counsel on record
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