Opinion
Civil Action No. 3:02-CV-2613-L.
April 11, 2005
ORDER
Before the court is the Motion of Momax, LLC for Partial Summary Judgment Establishing Liability of Defendant and Actual Damages Suffered by Momax, LLC and Denying the Affirmative Defenses Filed by the Defendant, filed November 5, 2004. After careful consideration of the motion, response, reply, the record, objections, and the applicable law, the court denies in part and grants in part Plaintiff Momax, LLC's Motion for Partial Summary Judgment.
I. Factual and Procedural Background
This dispute arises following Defendant's sale to Plaintiff Momax, LLC ("Momax") of a nighttime weight loss product that was contaminated with lactic acid bacteria and subsequently expanded and ruptured on store shelves. On December 5, 2002, Momax filed this lawsuit against Defendant The Rockland Corporation ("Defendant" or "Rockland") alleging breach of contract, breach of the implied warranties of merchantability and fitness for a particular purpose and negligence in connection with Defendant's production, sale and shipment of the contaminated weight loss product. Rockland has denied Momax's claims and also asserted various affirmative defenses, including accord and satisfaction, assumption of the risk, contributory negligence, comparative fault by a phantom party, fraud, illegality, laches, payment, statute of frauds, waiver, failure to mitigate damages, mutual mistake and misuse of patent. In addition, Rockland filed a counterclaim against Momax alleging that the parties had an oral contract, that Rockland performed its obligations thereunder, that Momax breached the contract and that an outstanding balance remains. On August 7, 2002, with leave of court, Rockland filed its First Amended Counterclaim, adding a claim against Momax under the Declaratory Judgment Act, and claims against two of Momax's officers, Max R. Greer and Charles R. Moffett, in both their official and individual capacities, alleging breaches of separate guaranty agreements.
Although Greer and Moffett have been variously referred to by both parties as "Plaintiffs," "Counter-Defendants" and "Counterclaim-Defendants," such characterizations are incorrect insofar as Greer and Moffett have been sued in their individual capacities under the guaranty agreements. See First Amended Counterclaim at ¶¶ 4.04, 5.05. A counterclaim may only be asserted against an opposing party. See Fed.R.Civ.P. 13. Based on the live pleading ( Complaint, December 5, 2002), Momax is the only plaintiff, and thus the only party against whom Rockland may properly assert a counterclaim. With regard to Greer and Moffett, as sued in their individual capacities, Rockland must bring a third party action against them. See Fed.R.Civ.P. 14. In the posture of this case, the court determines that as to its claims against Greer and Moffett individually, Rockland is a third party plaintiff and Greer and Moffett are third party defendants. Although neither Greer nor Moffett sued individually could therefore technically join Momax on its Motion for Partial Summary Judgment, the court will treat them as co-movants; Rockland has treated them as co-movants in its filings and therefore no undue harm or prejudice will inure to Rockland. During an April 8, 2005 telephonic conference with the court's law clerk, neither party objected to the court's determination that Greer and Moffett are properly characterized as third party defendants and that Greer and Moffett should be treated as having joined Momax on its Motion for Partial Summary Judgment. Accordingly, the court directs the clerk of court to correct the docket sheet to reflect that Defendant Rockland has brought a third party action against Greer and Moffett in their individual capacities, and that Greer and Moffett, as sued in their respective individual capacities, are third party defendants.
Momax has now moved for partial summary judgment, contending it is entitled to judgment as a matter of law on its breach of implied warranty claims and its claim that it is entitled to actual damages in the amount of $255,209.75, along with consequential damages in an amount to be proved at trial. Momax has also moved for summary judgment as to Rockland's thirteen (13) affirmative defenses. In its response to Momax's motion, Rockland contends that genuine issues of material fact preclude entry of partial summary judgment in Momax's favor. The court now sets forth the facts upon which it relies to resolve the motion for partial summary judgment. In setting forth the facts, the court applies the summary judgment standard as set forth in the following section.
Momax is a Texas limited liability company that markets and distributes dietary supplement products to grocery and retail stores. Rockland is an Oklahoma corporation in the business of producing nutritional supplements, including liquid formulations. On or about July 19, 2001, Max R. Greer, President of Momax, contacted Fawn A. Wright, Rockland's key account sales director, with regard to manufacturing a liquid weight loss product that would replicate Body Solutions, a liquid weight loss product already on the market. Def. App. at 13. Wright agreed to meet with Greer regarding the product. Id. On or about July 20, Greer and his partner, Randy Moffett, visited Rockland's facility in Tulsa, Oklahoma, where they met with Wright and George Dust, Rockland's vice president of research and development. Id. at 9, 13. At the July 20 meeting, Greer informed Wright and Dust that he wanted an ephedra-free liquid weight loss product that would be identical to Body Solutions and wanted the product formulated precisely to meet the label claims stated on the Body Solutions bottle. Id. Wright suggested that Momax use Rockland's preexisting 32-ounce liquid weight loss collagen formula, with a one ounce serving size. Id. Greer rejected Wright's suggestion, stating that the weight loss product had to be sold in 16-ounce bottles, with a one-half ounce serving size and a month's supply per bottle, identical to the bottles and serving size used by Body Solutions. Id. Dust informed Greer and Moffett that although Rockland had experience manufacturing liquid dietary supplements, it had never made a product that would be as concentrated as the one Greer wanted, and that the level of gelatin (protein) needed to meet the label claims of Body Solutions would cause the product to have a thick consistency, as opposed to the thinner consistency of Body Solutions. Id. at 9. Dust also informed Greer and Moffett that extensive testing would need to be done before Beautiful Body would be ready for production. Id.
At the end of the July 20 meeting, Momax and Rockland reached an agreement whereby Rockland agreed to formulate, manufacture, package and deliver to Momax a nighttime liquid weight loss product to be sold under the names "Beautiful Body Weight Solutions Evening Weight Loss Liquid Formula" and "Beautiful Body Night-Time Weight Loss Liquid Formula" (hereinafter collectively referred to as "Beautiful Body"). Complaint ¶¶ 1, 9. Three days later, on July 23, 2001, Rockland received a purchase order from Momax for 2,344 bottles of Beautiful Body. Pl. App. at 50; Def. App. at 13. Greer informed Wright that he wanted the product in Momax's Dallas warehouse by August 20, 2001, and that it needed to ship to customers by August 27, 2001. Def. App. at 13. Wright and Dust informed Greer that this deadline was impossible, as it left inadequate time for stability testing and as Greer had not yet approved the latest samples. Id. Greer demanded that Wright make every effort to meet his deadline. Id. After numerous attempts, and without adequate time to conduct stability testing, Dust formulated a product based on Greer's specifications that ultimately met with Greer's approval. Id. at 9-10. Shortly thereafter, Momax began placing more orders for Beautiful Body. Pl. App. at 51, 82, 116-121, 124. Rockland accepted the purchase orders and shipped several lots of Beautiful Body to Momax in September and November 2001. Id. at 53-55.
In or around December 2001, Momax discovered that containers of Beautiful Body had begun to bulge, leak, wobble and explode while on warehouse and retailer's shelves and when consumers opened bottles of the product. Id. at 126. Subsequent testing by both parties revealed that the vast majority of Beautiful Body shipments had been contaminated with lactobacillus bacteria, which produced a gas that caused the sealed containers of Beautiful Body to expand. Id. at 3-5, 14, 66-69. At or about that time, Rockland also sent a sample of Body Solutions for testing and discovered that it contained less than one-half of the amount of gelatin (protein) as claimed on its label. Def. App. at 10. Rockland shipped replacement lots of Beautiful Body in or around January and February 2002, which were later determined to also contain the lactobacillus bacteria. Pl. App. at 13, 74, 80. Following its discovery of the contaminated lots, Momax notified its customers of a recall of Beautiful Body and arranged for the product to be returned by the customer or destroyed. Id. at 126, 128-32.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. The Implied Warranties of Merchantability and Fitness for A Particular Purpose
Section 2.314 of the Texas Business and Commerce Code sets forth the implied warranty of merchantability, and provides, in relevant part:
(a) Unless excluded or modified (Section 2.316), a warranty that goods shall be merchantable is implied in a contract for sale if the seller is a merchant with respect to goods of that kind.
(b) Goods to be merchantable must be at least such as
* * *
(1) pass without objection in the trade under the contract description; and
* * *
(3) are fit for the ordinary purposes for which such goods are used[.]
Tex. Bus. Comm. Code Ann. § 2.314 (Vernon 1994 Supp. 2004). Section 2.315 sets forth the implied warranty of fitness for a particular purpose:
All statutory citations referenced herein, unless otherwise specified, are to Chapter 2 (Sales), SubChapter C (General Obligation and Construction of Contract) of the Uniform Commercial Code. See Tex. Bus. Comm. Code Ann. § 2.301, et seq. (Vernon 1994 Supp. 2004).
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified [under § 2.316] an implied warranty that the goods shall be fit for such purpose.Id. § 2.315. Comment 1 to § 2.315 provides that:
Whether or not this warranty arises in any individual case is basically a question of fact to be determined by the circumstances of the contracting. Under this section the buyer need not bring home to the seller actual knowledge of the particular purpose for which the goods are intended or of his reliance on the seller's skill and judgment, if the circumstances are such that the seller has reason to realize the purpose intended or that the reliance exists. The buyer, of course, must actually be relying on the seller.Id. § 2.315, comment 1 (emphasis added).
Section 2.316, in turn, sets forth the standard governing exclusions or modifications of warranties. Comment 9 to § 2.316 states:
The situation in which the buyer gives precise and complete specifications to the seller is not explicitly covered in this section [on warranties], but this is a frequent circumstance by which the implied warranties may be excluded. The warranty of fitness for a particular purpose would not normally arise since in such a situation there is usually no reliance on the seller by the buyer. The warranty of merchantability in such a transaction, however, must be considered in connection with [§ 2.317] on the cumulation and conflict of warranties. Under paragraph c [of § 2.317] in case of an inconsistency the implied warranty of merchantability is displaced by the express warranty that the goods will comply with the specifications. Thus, where the buyer gives detailed specifications as to the goods, neither of the implied warranties as to quality will normally apply to the transaction unless consistent with the specifications.Id. § 2.316, comment 9 (emphasis added).
1. Momax's Motion for Summary Judgment on its Claim that Rockland Breached the Implied Warranty of Merchantability
Momax has moved for partial summary judgment on its claim that Rockland breached the implied warranty of merchantability when it sold Momax contaminated bottles of Beautiful Body. See Pl. Mot. at 1, 4-5. In support, Momax contends that the sale of Beautiful Body was subject to the implied warranty of merchantability since Momax relied on Rockland, as a manufacturer of liquid weight loss products and dietary supplements, to manufacture, package and deliver Beautiful Body as an uncontaminated, suitable product. Id. at 5 (citing § 2-314(a)). Momax contends that Beautiful Body was not merchantable because it was contaminated with lactobacillus bacteria which caused the containers to swell and eventually rupture. Id. According to Momax, "[g]oods for human consumption will not `pass without objection' if the containers swell and rupture" and "swelling containers also rendered the Beautiful Body sold to Momax unfit for the ordinary purpose for which Beautiful Body would be used — human consumption." Id. (citing §§ 2.314(b)(1) and 2.314(b)(3)).
In response, Rockland contends that genuine issues of material fact preclude entry of partial summary judgment in Momax's favor on its claims that Rockland breached the implied warranty of merchantability. Specifically, Rockland contends that summary judgment should be denied since (1) the evidence shows that Momax gave Rockland "the precise and complete specifications for the product by demanding that the Beautiful Body product be an exact duplicate of Body Solutions," and therefore no implied warranty of merchantability ever arose ( see Def. Brief at 7, citing § 2.316) and (2) Momax has failed to show that Beautiful Body was not fit for the ordinary purpose for which it was used, an essential element to state a claim for breach of the implied warranty of merchantability under § 2-314. Id. at 7-8. The court will consider Rockland's arguments in turn.
a. Section 2-316
Rockland first argues that, pursuant to § 2-316, an implied warranty of merchantability never arose since Momax provided Rockland with detailed specifications regarding the manufacture of Beautiful Body. In support, Rockland has submitted evidence that Momax provided it with the specifications for Beautiful Body's formula and its packaging, and that the specifications came directly from an already existing weight loss product named Body Solution. See Def. App. at 9, 13. Specifically, Wright testified that on or about July 19, 2001, Greer contacted her with regard to manufacturing a liquid weight loss product that would replicate Body Solutions, a liquid weight loss product already on the market. Id. at 13. Wright and Dust both have submitted affidavit testimony that at a July 20, 2001 meeting, Greer informed them that he wanted an ephedra-free liquid weight loss product that would be identical to Body Solutions and wanted the product formulated precisely to meet the label claims stated on the Body Solutions bottle. Id. at 9, 13. Wright has also testified that Greer rejected her suggestion that Momax use Rockland's preexisting 32-ounce liquid weight-loss collagen formula, with a one ounce serving size, insisting instead that the weight-loss product had to be sold in 16-ounce bottles, with a one-half ounce serving size and a month's supply per bottle, identical to the bottles used by Body Solutions. Id.
Having reviewed the evidence, and viewing all inferences drawn from the factual record in the light most favorable to the Rockland, the nonmoving party ( see Matsushita, 475 U.S. at 587), the court determines that Rockland has raised a genuine issue of material fact as to whether Momax provided Rockland with the specifications for manufacturing Body Beautiful. From this evidence, a reasonable jury could return a verdict in favor of Rockland on Momax's implied warranty of merchantability claim ( see Anderson, 477 U.S. at 248), since "where the buyer gives detailed specifications as to the goods, neither of the implied warranties as to quality will normally apply to the transaction unless consistent with the specifications." Tex. Bus. Comm. Code, § 2.316, comment 9.
b. Section 2-314(b)(3)
Rockland also argues that the court should deny Momax's motion since Momax has failed to show that Beautiful Body was not fit for the ordinary purposes for which such goods are used, a necessary element for a claim of breach of the implied warranty of merchantability under § 2-314(b)(3). See Def. Brief at 7-8. Specifically, Rockland contends that Momax has not shown that the product, as made, was unsafe or unable to be used for its ordinary purpose, namely as a non-ephedra-based liquid weight loss product. Id. Rockland further argues that the mere fact that Beautiful Body did not function as well as Momax might have liked due to swelling of the containers is not equivalent to showing that the product did not meet its ordinary function as a weight loss product. Id.
Having reviewed the evidence, the court determines that genuine issues of material fact exist as to whether Beautiful Body was fit for its ordinary purpose, thereby precluding entry of summary judgment with regard to Momax's claims that Rockland breached the implied warranty of merchantability. There is no evidence that Beautiful Body did not function as a non-ephedra-based liquid weight loss product. As stated by the Texas Supreme Court:
For goods to breach [the implied warranty of merchantability], they must be defective — that is, they must be unfit for the ordinary purposes for which they are used because of a lack of something necessary for adequacy . . . A product which performs its ordinary function adequately does not breach the implied warranty of merchantability merely because it does not function as well as the buyer would like, or even as well as it could.General Motors Corp. v. Brewer, 966 S.W.2d 56, 57 (Tex. 1998) (citations and internal quotations omitted). In this case, the trier of fact could find on the evidence presented that the fact that contamination caused the sealed bottles of Beautiful Body to expand and rupture did not render Beautiful Body unfit for its ordinary purpose as non-ephedra-based liquid weight loss product.
Having reviewed the evidence, and viewing all inferences drawn from the factual record in the light most favorable to the Rockland, the nonmoving party ( see Matsushita, 475 U.S. at 587), the court finds that Rockland has raised a genuine issue of material fact as to whether the product was unfit for its ordinary purpose.
Based on the foregoing, the court denies Momax's motion with regard to its claim that Rockland breached the implied warranty of merchantability.
2. Momax's Motion for Summary Judgment on its Claim that Rockland Breached the Implied Warranty of Fitness for a Particular Purpose
Momax has also moved for partial summary judgment on its claim that Rockland breached the implied warranty of fitness for a particular purpose when it sold Momax contaminated bottles of Beautiful Body. See Pl. Mot. at 1, 4-5. Momax contends that the sale of Beautiful Body was subject to the implied warranty of fitness for a particular purpose since Rockland: knew that Momax was purchasing Beautiful Body for resale to retailers who, in turn, would sell it to consumers for human consumption; "knew or had reason to know that product contaminated by bacteria that caused the product to swell and rupture its container was not fit for sale to grocery stores or any other retailer who would sell the product to consumers for human consumption[;]" and knew that Momax was relying on Rockland's skill to manufacture, package and deliver Beautiful Body as an uncontaminated, suitable product. Id. at 5 (citing § 2-315).
In response to Momax's motion, Rockland contends that genuine issues of material fact preclude entry of partial summary judgment in Momax's favor on its claims that Rockland breached the implied warranty of fitness for a particular purpose. In support, Rockland relies on the same evidence set forth above to demonstrate that Momax gave Rockland "the precise and complete specifications for the product by demanding that the Beautiful Body product be an exact duplicate of Body Solutions," and therefore no implied warranty of fitness for a particular purpose ever arose ( see Def. Brief at 7, citing § 2.316).
Based on the evidence already set forth above ( see supra at 9), and viewing all inferences drawn from the factual record in the light most favorable to the Rockland, the nonmoving party ( see Matsushita, 475 U.S. at 587), the court determines that Rockland has raised a genuine issue of material fact as to whether Momax provided Rockland with the specifications for manufacturing Body Beautiful. From this evidence, a reasonable jury could return a verdict in favor of the Rockland on Momax's implied warranty of fitness for a particular purpose claim ( see Anderson, 477 U.S. at 248), since "where the buyer gives detailed specifications as to the goods, neither of the implied warranties as to quality will normally apply to the transaction unless consistent with the specifications." Tex. Bus. Comm. Code Ann. § 2.316, comment 9; see also § 2.315, comment 1 ("Whether or not this warranty arises in any individual case is basically a question of fact to be determined by the circumstances of the contracting.").
3. Momax's Claim that it is Entitled to Summary Judgment as to Damages
The court's determination that fact issues preclude entry of summary judgment on Momax's breach of the implied warranty claims pretermits the court's need to analyze Plaintiff's motion for summary judgment on its claim that it is entitled to actual damages stemming from Rockland's breach of implied warranties in the amount $255,209.75, along with consequential damages in an amount to be proved at trial. See Pl. Mot. at 5-6.
B. Rockland's Affirmative Defenses
Momax has also moved for summary judgment as to all thirteen (13) of Rockland's affirmative defenses. See Pl. Mot. at 11. Because Momax does not have the burden at trial concerning Rockland's affirmative defenses, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support Rockland's affirmative defenses. See Celotex, 477 U.S. at 325. If Momax does so, Rockland must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See id.; see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) ( en banc) ( per curiam). Summary judgment is mandatory where the nonmoving party fails to meet its burden. See Little, 37 F.3d at 1076.
With regard to its affirmative defenses of accord and satisfaction, fraud, laches, payment, statute of frauds, mutual mistake and misuse of patent, Rockland has not responded to Momax's summary judgment motion. Rockland's failure to respond means that it has not designated specific facts showing that there is a genuine issue of material fact for trial as to these affirmative defenses. "A summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence." Bookman v. Schubzda, 945 F.Supp. 999, 1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). Although a failure to respond does not permit entry of a "default summary judgment, "the court is permitted to accept the movant's evidence as undisputed." Tutton v. Garland Independent School Dist., 733 F.Supp. 1113, 1117 (N.D. Tex. 1990).
As to the affirmative defense of accord and satisfaction, Momax contends that Rockland has submitted no evidence to establish the essential elements of the affirmative defense of accord and satisfaction. See Pl. Mot. at 11-12. The court agrees. "The accord and satisfaction defense rests upon a contract, express or implied, in which the parties agree to the discharge of an existing obligation by means of a lesser payment tendered and accepted." Lopez v. Munoz, Hockema Reed, L.L.P., 22 S.W.3d 857, 863 (Tex. 2000). In its amended answer to Interrogatory Number 3, in which Momax asks Rockland to "state each fact or legal ground on which you rely to support the affirmative defense" of accord and satisfaction ( see Pl. App. at 22), Rockland answers: "The Plaintiff's(sic)/Counter-Defendants were issued a credit." See id. at 45. Other than this answer, Rockland has brought forth no evidence that identifies the credit or shows that tender of any sum was "upon the condition that acceptance [would] satisfy the underlying obligation[,]" an essential element for establishing the defense of accord and satisfaction. Lopez, 22 S.W.2d at 863. Accordingly, Momax is entitled to summary judgment as to Rockland's affirmative defense of accord and satisfaction.
With regard to the affirmative defense of fraud, Momax contends that Rockland "has not stated any misstatement or omission by Momax" or stated that it "relied on any statement by Momax[.]" See Pl. Mot. at 8. The elements of fraud are: (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. See In re Firstmerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). In its amended answer to Interrogatory Number 6, in which Momax asks Rockland to "state each fact or legal ground on which you rely to support the affirmative defense" of fraud ( see Pl. App. at 22), Rockland answers: "The Plaintiff's(sic)/Counter-Defendants knew that the product was not proper as they were warned several times about its instability. Despite this, they insisted we ship it and we did, yet they failed to pay us pursuant to our agreement." Id. at 46. This interrogatory answer fails to establish any material fact issues regarding the essential elements of fraud. Rockland has submitted no additional evidence to raise a fact issue regarding fraud. Accordingly, Momax is entitled to summary judgment as to Rockland's affirmative defense of fraud.
As to the affirmative defenses of laches, payment, statute of frauds, mutual mistake and patent misuse, Momax contends that Rockland has not presented any evidence to establish the essential elements of these affirmative defenses on which Rockland bears the burden of proof at trial. Rockland's failure to respond to Momax's motion with regard to these affirmative defenses means that Rockland has not met its burden, as the nonmovant, of designated specific facts showing that there is a genuine fact issue for trial. See Celotex, 477 U.S. at 325; Little, 37 F.3d at 1075. Because Rockland has failed to meet its burden, summary judgment on these affirmative defenses is mandatory. See Little, 37 F.3d at 1076. Accordingly, Momax's motion for summary judgment is granted as to Rockland's affirmative defenses of laches, payment, statute of frauds, mutual mistake and patent misuse.
With regard to Momax's motion for summary judgment as to Rockland's affirmative defenses of assumption of the risk, contributory negligence, comparative fault by a phantom party, illegality, waiver, and failure to mitigate damages, Rockland contends that it has submitted sufficient evidence to create a genuine issue of material fact such that Momax's motion should be denied. See Def. Brief at 13-17. Having examined the record and the parties' arguments, the court concludes that Rockland has met its burden of coming forward with summary judgment evidence demonstrating the existence of genuine issues of material fact as to these affirmative defenses. See supra at 3-5; see also Pl. App. at 45-47 (Rockland's Amended Answers to Plaintiff's First Set of Interrogatories). Accordingly, Momax's motion for summary judgment as to Rockland's affirmative defenses of assumption of the risk, contributory negligence, comparative fault by a phantom party, illegality, waiver, and failure to mitigate damages is denied. If warranted, Momax can readdress this matter at the appropriate time in accordance with Fed.R.Civ.P. 50.
C. Plaintiff's Objections
Momax filed objections to certain evidence submitted by Rockland in opposition to Momax's motion for partial summary judgment. See Obj. to Evidence Presented by The Rockland Corporation in Opposition to Motion for Partial Summary Judgment, filed January 25, 2005. The court previously set forth the evidentiary standard upon which it relied in determining Defendant's Motion for Summary Judgment. See supra at 5-6. The court did not consider any evidence that did not meet this standard. In other words, evidence that did not fall within this standard was not considered and played no role in this decision. Accordingly, the court overrules Plaintiff's objections.
IV. Conclusion
For the reasons set forth herein, the court denies in part and grants in part Momax's Motion for Partial Summary Judgment. The court denies Momax's motion with regard to Momax's claims that Defendant breached the implied warranties of merchantability and fitness for a particular purpose and with regard to its claims that it is entitled to summary judgment on Defendant's affirmative defenses of assumption of the risk, contributory negligence, comparative fault by a phantom party, illegality, waiver, and failure to mitigate damages. The court grants Momax's motion with regard to its claims that it is entitled to summary judgment on Defendant's affirmative defenses of accord and satisfaction, fraud, laches, payment, statute of frauds, mutual mistake and misuse of patent.