United States District Court, N.D. Texas, Amarillo Division
MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE.
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).
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.
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
Liability for Seeds Sold
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.
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.
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.
"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)).
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
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, ...