Opinion
CASE NO. 1:09-CV-401-WKW [WO].
September 1, 2009
ORDER
Plaintiff Crop Production Services, Inc. ("CPS") brought this suit against Janice Layton and her son Greg Layton for alleged nonpayment of debts owed for the purchase of farm supplies under a credit agreement. (Doc. # 2.) Without conducting discovery, CPS moved for summary judgment (Doc. # 13), the Laytons opposed the motion (Doc. # 17), and CPS then filed a more extensive reply brief in support of its motion (Doc. # 18).
After the Laytons failed to timely answer CPS's complaint, CPS moved for the entry of default and for a default judgment, pursuant to Federal Rule of Civil Procedure 55. (Doc. # 7.) Two days later, the Laytons filed their answer. (Doc. # 8.) Rule 55(c) provides that a court "may set aside an entry of default for good cause," and courts apply the same standard in cases where a motion for default is contested before its entry. McKinnon v. Kwong Wah Rest., 83 F.3d 498, 503 (1st Cir. 1996). Applying the factors explained in McKinnon and accepted broadly in other case law, it would not be appropriate to grant the motion for a default judgment. Principally, there is no evidence that the failure to timely answer was willful or in bad faith, and CPS has not explained how it was prejudiced given the short duration of the delay. Accordingly, it is appropriate to proceed to the merits of the summary judgment issue.
Summary judgment should be granted only "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he court must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995). A genuine factual dispute exists if "a reasonable jury could return a verdict for the non-moving party." Damon v. Fleming Supermarkets, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotation marks and citation omitted). Trial courts, however, may deny summary judgment when "there is reason to believe that the better course would be to proceed to a full trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); accord Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1285 (11th Cir. 2001).
CPS claims that it concluded a credit agreement with Janice Layton in March 2007. (Doc. # 13, Ex. 1.) Greg Layton signed the agreement as guarantor of his mother's debt. According to the second affidavit submitted by CPS's credit manager Harvey Johnson, the Laytons continued to accept delivery of products from CPS via its local agent, Pate Fertilizer, during the 2008 crop season, but never paid for the deliveries as agreed. (Doc. # 18, Ex. A, ¶ 5.)
At the bottom of the first page of the agreement, the printed word "TERMS:" appears, followed by a line, on which is handwritten "Dec. 1, 2007." (Doc. # 13, Ex. 1.) According to the Laytons, this entry indicates that the credit agreement was to expire as of that date. (Doc. # 17.) To the contrary, CPS asserts, via Johnson's second affidavit, that this line indicates the "terms" of the credit agreement were that the Laytons would not owe any money for the supplies they bought from CPS until December 1, 2007, a date selected to allow the Laytons to sell their crops at the end of the growing season. (Doc. # 18, Ex. A, ¶¶ 3, 7.)
In his first affidavit, Johnson further asserts that Janice Layton actually requested and was sold and billed for various agricultural supplies in May 2008. (Doc. # 13, Ex. B, ¶¶ 5-7.) In response, Ms. Layton does not specifically deny that she received any such supplies in the 2008 season, but avers that she never gave "`CPS' permission to charge [her] account," "requested" that CPS supply products, "signed an agreement with" CPS, or "authorized" CPS to supply her with goods in 2008. (Doc. # 17, Ex. 1.)
Perhaps by way of response to these statements, the second Johnson affidavit describes in greater detail the process through which the Laytons are said to have purchased supplies from CPS — they would not have done so directly from CPS, the affidavit says, but through Pate Fertilizer, which functioned as CPS's consignee. (Doc. # 18, Ex. A, ¶ 8.) Pate Fertilizer is said to store and sell product on behalf of CPS to customers with CPS credit accounts; the customers then are billed by and pay CPS directly. (Doc. #18, Ex. A, ¶ 8.). CPS attached invoices purporting to show that such transactions took place in summer 2008 between Pate Fertilizer, CPS, and Janice Layton.
CPS argues that Alabama precedent dictates that the defense offered by the Laytons must fail. See Rose Manor Health Care, Inc. v. Barnhardt Mfg. Co., 608 So. 2d 358, 359 (Ala. 1992). The cited case is distinguishable; it involved a corporate parent divesting itself of a nursing home without informing a supplier with an existing contract that it would no longer be liable for deliveries made to the facility under an open account. Id. Confusingly, the nursing home and its former operator maintained the same name even after the shift in operations. Id. at 360. Moreover, the defendant in Rose Manor did not assert, as do the Laytons, that the contract had by its own terms already expired by the time of the contested deliveries.
Given the dispute over the continued validity of the 2007 credit agreement (including whether Greg Layton would remain liable as guarantor even if Janice Layton is liable for supplies she actually obtained in 2008), the differences between the first and second affidavits of Harry Johnson, and the extremely limited discovery conducted thus far, this case is unsuitable for resolution on summary judgment at this time. "[T]here is reason to believe that the better course would be to proceed to a full trial," or at the least, fuller development of the evidence. Anderson, 477 U.S. at 255.
It is ORDERED that the motions for default, default judgment, and summary judgment (Docs. # 7, 13) are DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).