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Forage Genetics International, LLC v. Warner Seeds, Inc.

United States District Court, N.D. Texas, Amarillo Division

December 5, 2019

FORAGE GENETICS INTERNATIONAL, LLC, Plaintiff,
v.
WARNER SEEDS, INC., Defendant.

          ORDER

          MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE.

         History

         On June 7, 2019, Plaintiff filed a Motion for Summary Judgment (ECF 29) and a brief in support (ECF 30). On June 28, Defendant filed a response to Plaintiffs motion (ECF 32). On July 2, Plaintiff filed a reply to Defendant's response (ECF 36). On July 5, Defendant filed a response to Plaintiffs reply (ECF 41). On October 8, the United States Magistrate Judge entered findings and conclusions on Plaintiffs motion (ECF 45). The Magistrate Judge RECOMMENDS that Plaintiffs motion be GRANTED in part and DENIED in part. On October 14, Plaintiff filed objections to the findings, conclusions, and recommendation (ECF 49). On November 4, the Court ordered additional briefing from both parties (ECF 50). On November 18, Plaintiff, pursuant to the Court's order, filed a brief in support (ECF 51). On November 25, Defendant, again pursuant to the Court's order, filed a response to Plaintiffs brief (ECT 52).

         Summary

         After making an independent review of the pleadings, files, and records in this case, the findings, conclusions, and recommendation of the Magistrate Judge, Plaintiffs objections, and the additional briefing ordered on November 4, the Court concludes that the findings and conclusions are correct in part. It is therefore ORDERED that the findings, conclusions, and recommendation of the Magistrate Judge are ADOPTED in part and that Plaintiffs Motion for Summary Judgment (ECF 29) is GRANTED in its entirety. The Court provides the reasons for its order in the analysis below.

         Analysis

         Plaintiff argues-and Defendant admits-that Defendant was obligated to pay Plaintiff for any seed that it resold to its customers. See (ECF 49 at 4) ("Warner admitted, however that it was obligated to pay Forage Genetics for any seed that it resold to its customers."); (ECF 33 at 16) ("The agreement was that Warner would only have to pay for the seed if Warner sold the seed."). Hence, Defendant is liable to Plaintiff for any bags of seed that it actually sold. Plaintiff further argues that Defendant is liable for late charges for past-due invoices under the Credit Application and Agreement ("Credit Agreement") that both parties signed. (ECF 31 at 38-39). The Court first addresses Defendant's liability for seeds sold before turning to its liability under the Credit Agreement.

         Defendant's Liability for Seeds Sold

         In her findings, conclusions, and recommendation, the Magistrate Judge found that there was no genuine issue of material fact with respect to Defendant's liability for one hundred seventy-five (175) bags of seeds involved in this lawsuit ("the undisputed bags"). (ECF 45 at 8). However, the Magistrate Judge did find that there was a genuine issue of material fact with respect to Defendant's liability for one hundred fifteen (115) bags of seed involved in this lawsuit ("the disputed bags"). (ECF 45 at 10). Therefore, this Court must determine if there is a genuine issue of material fact as to whether the disputed bags were actually sold. The disputed bags can be divided into three categories based on their invoice number: forty (40) bags from Invoice No. 61919388, sixty-nine (69) bags from Invoice No. 61877013, and six (6) bags from Invoice No. 62036322. (ECF 45 at 8). The Court examines each category of the disputed bags in order.

         Regarding the forty (40) bags from Invoice No. 61919388, Defendant admitted in a supplemental response that it had resold the forty (40) bags. (ECF 42 at 2). Since these forty (40) bags were resold by Defendant, the Court FINDS that Defendant is liable for the forty (40) bags from Invoice No. 61919388.

         Regarding the sixty-nine (69) bags from Invoice No. 61877013, Plaintiff argues that Defendant sold these bags as well. Plaintiff argues that because (1) those bags were not from the lot in which any theft was known to have occurred and (2) Defendant no longer possesses the bags, Defendant therefore must have sold them. (ECF 51 at 2). Plaintiff also argues that Defendant informed Plaintiff that (1) Defendant had sold the sixty-nine (69) bags and (2) they were to be excluded from a related credit and rebill transaction because they had been sold. Id. at 2-3. Plaintiff further argues that this is consistent with the sales indicated by Defendant's invoices. Id. at 3.

         A 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). A genuine dispute-or issue-of material fact exists if the evidence is such that a reasonable trier of fact could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Conclusory allegations, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence and will not defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (citing Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir. 1993)).

         Here, there is no genuine issue of material fact as to whether Defendant sold the sixty-nine (69) bags from Invoice No. 61877013 to its customers. Despite Defendant's claims to the contrary, no reasonable jury could find that Defendant did not sell the sixty-nine (69) bags. Indeed, in its most recent briefing responding to Plaintiff, Defendant does not even provide a plausible alternative scenario regarding what happened to the bags. Defendant provides no evidence that its former employee-John David Cass-stole from the lot where the sixty-nine (69) bags were kept, and it merely asserts that "[t]he extent of the Cass theft may not ever be fully known." (ECF 52 at 2). This is precisely the sort of unsupported speculation that will not defeat a motion for summary judgment. Consequently, the Court FINDS that Defendant is liable for the sixty-nine (69) bags from Invoice No. 61877013.

         Regarding the six (6) bags from Invoice No. 62036322, Plaintiff argues that Defendant is liable for them under any theory of liability. Plaintiff in particular argues that Defendant is liable even under Defendant's own warehouse theory. (ECF 51 at 8). This is because Defendant alone is responsible for the damage to the bags that prevented their delivery to a customer. Id. Defendant does not address this argument in its response to Plaintiff. Additionally, the Court notes that there is evidence in one of the depositions that the bags were in fact sold to a customer even though they presumably had not yet been delivered. (ECF 31 at 298). This would mean that Defendant is liable for those bags as well since they were sold. In summary, the deposition reflects that the six (6) bags were indeed "sold" though they presumably were never delivered for reasons irrelevant to liability-specifically, ...


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