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M.B. Barge Co., Inc. v. Kudzu Marine, Inc.

United States District Court, S.D. Alabama, Southern Division

October 6, 2014

M.B. BARGE CO., INC., Plaintiff,
v.
KUDZU MARINE, INC., et al., Defendants.

ORDER

WILLIAM H. STEELE, Chief District Judge.

This matter is before the Court on a motion for summary judgment filed by defendants Specialty Fuels, Inc. ("the Corporation"), Specialty Fuels Bunkering, LLC ("Bunkering"), Specialty Fuels BTU, LLC ("BTU") (collectively, "the Specialty defendants"), and F. Javier Brito. (Doc. 103). Also pending are motions for summary judgment filed by defendants Robert J. Tompkins, Jr. and Michael S. Wilson. (Docs. 106, 110).[1] The parties have submitted briefs and evidentiary materials in support of their respective positions, (Docs. 104-05, 116-17), and the motions are ripe for resolution. After careful consideration, the Court concludes that the motions of the individual defendants and Bunkering are due to be denied and that the motion of BTU and the Corporation is due to be granted in part and denied in part.

BACKGROUND

According to the second amended complaint, (Doc. 49), in April 2010 and December 2011, the plaintiff entered two bareboat charter agreements ("the Contracts") with defendant Kudzu Marine, Inc. ("Kudzu"). Brito, Tompkins and Wilson ("the Shareholders") were and are Kudzu's only shareholders. Kudzu was created and operated solely to provide barge services to the Specialty defendants, all of which are owned by Brito.

According to the second amended complaint, Kudzu defaulted on its payment and other obligations under the Contracts, to the tune of approximately $600, 000. The plaintiff initiated this action against Kudzu in October 2012, setting forth a single count for breach of contract. (Doc. 1). Kudzu filed for bankruptcy in August 2013, and the action as to Kudzu has been stayed since then. (Docs. 42, 43).

According to the second amended complaint, Kudzu owned several vessels, which it sold for substantially less than their fair market value but for enough to result in the cancellation of the Shareholders' guaranties related to the vessels' purchase. The sales liquidated essentially all of Kudzu's assets and left Kudzu insolvent. The sales occurred after this action was commenced and with notice that the plaintiff would seek to enforce against the vessels any judgment obtained in this action.

In April 2013, the plaintiff filed an amended complaint, which added the Specialty defendants as parties and asserted counts against them for breach of contract and "alter ego." (Doc. 23). In September 2013, the plaintiff filed its second amended complaint, which added the Shareholders as defendants and asserted counts against them for breach of contract and "piercing the corporate veil." The movants seek summary judgment as to all counts against them.

DISCUSSION

Summary judgment should be granted only if "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). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id .; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

"If, however, the movant carries the initial summary judgment burden..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion....").

In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence supporting a party's position.[2] Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment, " Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, ...


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