United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
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
Findings of Fact 
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).
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.
Standard of Review
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:
(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).
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).
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
...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.
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 ...”).
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).