Nutra-Blend, LLC v. Bell Aquaculture LLC
OPINION AND ORDER: GRANTING 17 MOTION for Summary Judgment (Partial) by Plaintiff Nutra-Blend, LLC. 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. Signed by Judge Rudy Lozano on 3/20/2017. (lhc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BELL AQUACULTURE, LLC,
OPINION AND ORDER
This matter is before the Court on “Plaintiff’s Motion for
Partial Summary Judgment,” filed by the plaintiff, Nutra-Blend,
LLC, on July 21, 2016.
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.
On December 2, 2015, Nutra-Blend, LLC (“Nutra-Blend”) filed
Aquaculture, LLC (“Bell”).
Nutra-Blend brings claims
Diversity jurisdiction exists under 28 U.S.C. § 1332(a) because there is
complete diversity of citizenship between the parties and the amount in
controversy exceeds $75,000.
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”).
On January 25, 2016, Bell filed its answer.
(Id. at 3-5.)
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.
judgment in the amount of $84,323.94, “which represents the amount
due under the invoices for the goods supplied by Nutra-Blend to
(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.
Summary 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).
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
judgment.” Id. To determine whether a genuine dispute of material
fact exists, the Court must construe all facts in the light most
inferences in that party’s favor.
See Ogden v. Atterholt, 606
F.3d 355, 358 (7th Cir. 2010).
A party 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
Local 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).
failure to respond as required by the local rules constitutes an
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
demonstrates that there is no genuine issue of material fact and
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).
Because 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.
Nutra-Blend is engaged in the business of producing and
distributing vitamin, nutrient, and mineral products.
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
(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.) NutraBlend delivered the Products to Bell at its facility in Albany,
(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 Court has borrowed liberally from Nutra-Blend’s brief for this section.
The unpaid principal balance due to Nutra-Blend for the Products
(Id. at ¶ 10; Exhibits A & B).
Nutra-Blend repeatedly contacted Bell to obtain payment of
the invoices for the Products.
(Swisher Aff. ¶ 11.)
communicated primarily with Bell’s Accounting Coordinator, Leona
Neither Hill nor any other representative
from Bell disputed the invoices for the Products in any manner.
According to Swisher, Hill repeatedly acknowledged Bell’s
obligation to pay the invoices for the Products and claimed that
those invoices would be paid after it improved its cash-flow
Bell never paid the invoices for the Products.
(Id. at ¶ 12.)
In cases involving the sale of goods, the Uniform Commercial
Indiana’s Uniform Commercial Code (the “Code”)
defines “goods” as “all things . . . which are movable at the time
of identification to the contract for sale.”
Ind. Code § 26-1-2-
Upon the delivery of goods by a seller, a buyer has a
right to either “reject all of it, accept all of it, or accept any
commercial units and reject the rest . . . .”
McClure Oil Corp.
v. Murray Equip., Inc., 515 N.E.2d 546, 551 (Ind. Ct. App. 1987)
(citing Ind. Code § 26-1-2-601)).
Under the Code, “[t]he buyer
must pay at the contract rate for any goods accepted.”
Goods are considered accepted when a buyer: (a)
“signifies to the seller that the goods are conforming or that he
will take or retain them in spite of their nonconformity”; (b)
opportunity to inspect them”; or (c) “does any act inconsistent
“Moreover, ‘[o]nce the buyer accepts goods, the buyer is precluded
from rejecting them,’ and ‘the buyer must pay the contract price
for any goods accepted.’”
Vehicle Serv. Group, LLC v. Auto Equip.
Co. Inc., 838 F. Supp. 2d 842, 845 (S.D. Ind. 2011) (citing
McClure, 515 N.E.2d at 552); Ind. Code § 26-1-2-1-607(1).
buyer fails to pay for the goods, the seller can sue to recover
the price of the goods accepted.
Ind. Code § 26-1-2-1-709(1).
As aptly stated by the Court in Vehicle Serv. Group, 838 F.
Supp. 2d at 845, “[t]here is no need to belabor the point.”
the following facts are undisputed: (1) Bell ordered the Products;
(2) Nutra-Blend delivered them to Bell’s facility in Albany,
Indiana; (3) Bell did not effectively reject any of the Products;
and (4) Bell has failed to pay for them.
is entitled to judgment as a matter of law on Count 1 in the amount
See Vehicle Serv. Group, 838 F. Supp. 2d at 845;
see also McClure, 515 N.E.2d at 551-552.
Because the Court has
“Rejection of goods must be within a reasonable time after their delivery
or tender. It is ineffective unless the buyer seasonably notifies the
seller.” Ind. Code § 26-1-2-602(1).
consented to the dismissal of the remaining counts; therefore,
Counts 2 and 3 are hereby dismissed.
For the reasons set forth above, 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.
March 20, 2017
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?