Nello Inc v. Secure Communications Inc

Filing 81

OPINION AND ORDER: GRANTING 79 MOTION for Summary Judgment. Nello shall have judgment against Secure Communications Inc. in the amount of $231,408.79. Secure Communications Inc. shall take nothing by its counterclaim. ***Civil Case Terminated. Signed by Judge Joseph S Van Bokkelen on 6/2/2014. (jld)

United States District Court
Northern District of Indiana

NELLO INC. d/b/a NELLO CORP.,
Plaintiff,
v.

Civil Action No. 3-09-CV-320 JVB

SECURE COMMUNICATIONS INC.,
Defendant.

OPINION AND ORDER
Plaintiff and Counterdefendant Nello Inc. has filed a motion for summary judgment on its
complaint against Defendant Secure Communications Inc. (“SCI”) and SCI’s counterclaim (DE
79). Secure has not responded to the motion.

A.

Summary Judgment Standard
A motion for summary judgment must 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). Rule 56 further requires the entry of summary judgment, after
adequate time for discovery, against a party “who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial responsibility of informing a 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 affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the
moving party supports its motion for summary judgment with affidavits or other materials, it
thereby shifts to the non-moving party the burden of showing that an issue of material fact exists.
Keri v. Bd. of Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).
In viewing the facts presented on a motion for summary judgment, a court must construe
all facts in a light most favorable to the non-moving party and draw all legitimate inferences and
resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A court’s role is not to evaluate
the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the
matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v.
Liberty Lobby, 477 U.S. 242, 249–50 (1986).

B.

Discussion
The affidavit of Kevin Brisson that accompanies Nello’s memorandum in support of its

motion establishes that Nello delivered an aerial tower to SCI. It charged SCI a total of
$73,083.96 which it billed by an invoice issued on September 16, 2008, for $69,007.06; and an
invoice issued on October 30, 2008, for $4,076.90. In addition, SCI had agreed, in a document
entitled “Terms and Conditions of Sale and Credit,” (“Agreement”) to pay interest at the rate of
2% per month on invoices not paid within thirty days, which amounts to $86,156.83 through
September 30, 2013, and $48.05 per diem from October 1, 2013, through the date of judgment.
In the Agreement SCI also committed to pay all costs of collection, including attorney’s fees.
The affidavits of Brisson, and attorneys Thomas Botkin and Mark Boveri establish that Nello
incurred $72,168 in attorneys fees through May 2013. SCI has come forward with no evidence

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to counter Nello’s affidavits. Accordingly, the Court adopts the facts as set out in Nello’s
affidavits and finds that Nello is entitled to summary judgment on its complaint against SCI in
the amounts set out in the affidavits.
In its counterclaim, SCI alleges that cell towers it purchased from Nello are defective,
such that Nello has breached the contract between the parties and the warranty Nello gave in the
Agreement. However SCI has not produced evidence to substantiate its breach of contract and
warranty claims. Thus SCI has failed to demonstrate that there is an issue for trial and Nello is
entitled to summary judgment that SCI take nothing by its counterclaim.

C.

Conclusion
For the foregoing reasons, the Court GRANTS the motion of Plaintiff and

Counterdefendant Nello Inc. for summary judgment (DE79). Nello shall have judgment against
Secure Communications Inc. in the amount of $231,408.79 together with prejudgment interest at
the rate of $48.05 from October 1, 2013, to the date of judgment, plus costs. Secure
Communications Inc. shall take nothing by its counterclaim. The Clerk is directed to enter final
judgment on this order.
SO ORDERED on June 2, 2014.

s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division

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