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Wells Fargo Bank, N. A. v. Peterson Produce, Inc.

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

December 12, 2019

WELLS FARGO BANK, N.A., Plaintiff,
v.
PETERSON PRODUCE, INC., et al., Defendant.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's motion for partial summary judgment (Doc. 26). For the reasons discussed herein, Plaintiff's motion for partial summary judgment against Defendant Peterson Produce, Inc. is GRANTED.

         I. Findings of Fact [1]

         On September 20, 2018, Plaintiff Wells Fargo Bank, N.A. (Wells Fargo) initiated this action against the Defendant Peterson Produce, Inc. and against Defendants Virgie S. Peterson and Paul A. Peterson individually for breach of contract (breach of a Promissory Note and breach of the Guaranty documents) and unjust enrichment. (Doc. 1). Wells Fargo seeks to recover all costs incurred to enforce its rights under the loan documents including attorneys' fees, costs of collection and court costs. On October 5, 2018, this action as to Peterson Produce, Inc. was stayed due to its bankruptcy status. (Doc. 12). The individual defendants did not appear, defend, or otherwise respond to the Complaint. As such, on November 7, 2018, Wells Fargo applied for a Rule 55 Clerk's entry of default against the individual Peterson defendants (Doc. 13) and the Clerk entered a Default against the individual Peterson defendants on November 19, 2018. (Doc. 15). A Rule 54(b) judgement was entered against the individual Peterson defendants on January 1, 2019 in the amount of $523, 728.86. (Doc. 20). On September 27, 2019, Wells Fargo filed a Motion to lift the stay as to Peterson Produce, Inc. (Doc. 23). The stay was lifted October 3, 2019. Presently, Wells Fargo seeks partial summary judgment as to Count I of the Complaint alleging a breach of contract claim against Peterson Produce, Inc., in an amount of $522, 666.42 plus attorneys' fees and court costs. (Doc. 26-3 at 2).

         On January 22, 2008, Wells Fargo issued a Promissory Note to Borrower Peterson Produce, Inc., for $500, 000. (Doc. 1-1). In connection with the Note, individual Peterson defendants each separately executed Unconditional Guaranty documents in favor of Wells Fargo, guaranteeing payment and performance of all the Borrower's Note obligations. (Doc. 1-2; Doc. 1-3). Defendants defaulted on the loan and failed to pay the amounts due. On July 26, 2018, Wells Fargo demanded payment of all amounts due. (Doc. 1-4). The Petersons failed to cure the default or repay the amounts owed. As of September 13, 2018, the amount due was $519, 774.25 ($482, 025.63 in outstanding/unpaid principal, $13, 121.81 in accrued/unpaid interest, and $24, 626.81 in late charges). Now Wells Fargo seeks to recover against Peterson Produce, Inc.

         II. Standard of Review

         “The court shall grant summary 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.” Fed.R.Civ.P. 56(a). Rule 56(c) provides as follows:

(c) Procedures
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. 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.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed.R.Civ.P. Rule 56(c).

         The party seeking summary judgment bears the “initial responsibility of informing the district 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.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 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. Celotex, 477 U.S. at 323. “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992).

         Peterson Produce, Inc. has failed to file any response to Defendant's partial summary judgment; as such, the motion is unopposed. Federal Rule of Civil Procedure Rule 56(e)(3) states that if a party “fails to properly address another party's assertion of fact...the court may grant summary judgment if the motion and supporting materials…show that the movant is entitled to it.” Additionally, Local Rule 7.2(b) requires a party responding to a Rule 56 motion to specify the disputed facts, if any, and that failure to do so will be interpreted as an admission that there is no material factual dispute:

...the party or parties in opposition shall file a brief in opposition thereto, and, if it is contended that there are material factual disputes, shall point out the disputed facts appropriately referenced to the supporting document or documents filed in the action. Failure to do so will be considered an admission that no material factual dispute exists; provided, that nothing in this rule shall be construed to require the non-movant to respond in actions where the movant has not borne its burden of establishing that there is no dispute as to any material fact.

S.D.Ala.L.R. 7.2(b).

         Peterson Produce, Inc. has failed to point out any disputed facts as to the partial summary judgment motion issue, it did not respond at all, and its “[f]ailure to do so will be considered an admission that no material factual dispute exists.” L.R. 7.2(b). See, e.g., Patton v. City of Hapeville, Ga., 162 Fed. Appx. 895, 896 (11th Cir. 2006) (providing that “the district court properly held that the defendants' statement of undisputed facts filed with their motion for summary judgment were admitted when Patton failed to respond to the statement of facts ...”).

         Nevertheless, the Court notes that the “mere failure of the non-moving party to create a factual dispute does not automatically authorize the entry of summary judgment for the moving party.” Dixie Stevedores, Inc. v Marinic Maritime, Ltd., 778 F.2d 670, 673 (11th Cir. 1985). Instead, “Rule 56 requires the moving party to demonstrate the absence of a genuine issue of fact.” Id. In United States v. One Piece of Property, 5800 S.W. 4th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004), “[t]he district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed but, rather, must consider the merits of the motion.” Specifically, per the Eleventh Circuit:

... the district court need not sua sponte review all of the evidentiary materials on file at the time the motion is granted, but must ensure that the motion itself is supported by evidentiary materials ... At the least, the district court must review all of the evidentiary materials submitted in support of the motion for summary judgment ..... In addition, so that there can be an effective review of the case on appeal, the district court's order granting summary judgment must [ ] indicate that the merits of the motion were addressed....

Id. (citations omitted).

         III. The Claims

         A. Breac ...


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