Opinion
CASE NO. 99-2082-CIV-JORDAN
July 22, 2002
ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER GRANTING SUMMARY JUDGMENT
Merisant's motion for reconsideration of the order granting summary judgment in favor of the F. Garcia defendants (F. Garcia) [D.E. 308] is DENIED. Merisant seeks reconsideration based on several grounds, but there are only a few which merit discussion.
First, Merisant is correct in asserting that I failed to consider Earl Williams' affidavit, which was attached to Merisant's motion to strike F. Garcia's reply [D.E. 202], and then later filed separately [DE. 211]. Although I denied the motion to strike the reply in my order of September 28, 2001 [D.E. 294], I did agree to consider the arguments made by Merisant in that motion, so I will address Mr. Williams' affidavit.
Merisant argues that Mr. Williams' affidavit creates an issue of material fact i:n dispute, and that because I had suggested in the summary judgment order that "things might be different if Mr. Williams contradicted [Louis] Lubitz" on certain matters, summary judgment should be denied. I cannot agree.
I indicated that things "might" be different if Mr. Williams contradicted Mr. Lubitz, but given the substance of Mr. Williams' affidavit, they are not. Mr. Williams asserts that he was not responsible for "approving, authorizing, or consenting" to the sales of Equal product to Kansas Marine andlor F. Garcia, but he does not dispute that he either facilitated or coordinated the sales of Equal product to Kansas Marine on F. Garcia's behalf. Mr. Williams states that it was not his "idea or suggestion that F. Garcia purchase Equal product from Kansas Marine, " but he does not directly dispute that it was his "decision" to sell the Equal product to Mr. Campuzano through Kansas Marine, as Mr. Lubitz testified. Mr. Williams also does not dispute that, as Mr. Lubitz testified, when Mr. Campuzano would call him to request a large shipment of Equal, he would coordinate the timing with Mr. Lubitz in order to take advantage of "allowances" or pricing discounts at Kansas Marine. Moreover, Mr. Williams specifically states in his affidavit that he spoke with representatives ofF. Garcia concerning F. Garcia's purchases of Equal through Kansas Marine. He also acknowledges that he was in contact with F. Garcia as part of the effort to set up a direct customer relationship with the Heinz Company, which had replaced Hunt Wesson as the national distributor for Equal. Although Mr. Williams states that he was not advised that the Equal product was being purchased for export by F. Garcia, he does not dispute that Mr. Campuzano told him that the Equal was being purchased for an F. Garcia customer who was going to export it. Indeed, the record is clear that the Equal product was not being purchased for export by F. Garcia, but that F. Garcia was purchasing it for a customer that was purportedly planning to export it. Merisant claims to have had no reason to submit the affidavit of Mr. Williams until the issue of Mr. Williams' involvement in the sale of Equal product was "improperly" raised for the first time in F. Garcia's reply papers. But Merisant raised the issue of the F. Garcia's "willful blindness" in its opposition to F. Garcia's motion for summary judgment, and therefore Merisant carries the burden of proof on this issue at the summary judgment stage, and that means presenting sufficient evidence such that a jury could return a verdict in its favor. Accordingly, Merisant should have presented Mr. Williams' affidavit as part of its opposition to the motion for summary judgment, rather than as an attachment to a motion to strike a rebuttal of willful blindness in F. Garcia's reply. In any case, Mr. Williams' eight-paragraph affidavit does not create a disputed issue of material fact, in light of all the other record evidence (taken in the light most favorable to Merisant).
Second, Merisant takes issue with my reliance on Alvaro Buendia's deposition, as well as the deposition of Mr. Lubitz. Merisant asserts that I "sua sponte searched" Mr. Buendia's deposition for evidence favorable to F. Garcia and that I was wrong to do so because that deposition was taken months after the filing of the [F.] Garcia defendants' motion for summary judgment." Likewise, Merisant objects to my "sua sponte" reading and reliance on Mr. Lubitz' deposition, which had not yet been transcribed when F. Garcia's motion for summary judgment was filed, but was submitted before the summary judgment record was closed. Merisant alleges that I also "sua sponte searched" Mr. Lubitz' deposition for testimony that favored F. Garcia.
I note that Mr. Buendia's deposition was filed by Merisant in support of its motion for summary judgment on January 9, 2001.
Contrary to Merisant's claim that I was limited to the snippets cited by the parties, the Eleventh Circuit requires trial judges to consider the entire record when ruling on a motion for summary judgment, and not just the documents "singled out by counsel for special attention." In re The Hillard Development Corp., 238 B.R. 857, 865 (S.D. Fla. 1999) (citing Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980) ("Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention — the court must consider both before granting a summaryjudgment.")). See also Clinkscales v. Chevron U.S.A., Inc. 831 F.2d 1565, 1570 (11th Cir. 1987) (in ruling on a summary judgment motion the district court must consider all evidence in the record and not just the documents cited by counsel). Moreover, I fail to see how "consideration of a deposition filed outside of the summary judgment memoranda, such as Mr. Buendia's deposition, merits different treatment than an affidavit such as Mr. Williams', which was also outside of the summary judgment memoranda.
Because of the manner in which Merisant organized and presented its various motions for summary judgment in this case, I was forced to do quite a lot of "sua sponte" research and investigation in order to get a clear understanding of the issues presented. For example, in its motion for summary judgment against Mr. Buendia and the Trio defendants — filed January 16, 2001 — Merisant failed to organize the motion in relation to the counts in the complaint, which made it extremely difficult to carefully analyze. Likewise, there were similar organizational problems with Merisant's motion for summary judgment against Mark Siegel. Finally, Merisant did not distinguish between federal and state law claims in some of its summary judgment memoranda, thereby necessitating independent legal research concerning the sufficiency of Merisant's claims. See Orders Granting Summary Judgment in Favor of Merisant [D.E. 300 at 11; D.E. 302 at 14]. Yet Merisant did not bother to object when I considered the entire record for those summary judgment motions, sua sponte "searched the record, conducted independent legal research on the claims at issue, and ruled in its favor. Merisant's complaints about my allegedly improper "sua sponte" consideration in this instance therefore ring hollow.
I am reminded of Queen Gertrude's comments: "[Merisant] doth protest too much, methinks." W. Shakespeare, Hamlet, Act III, Scene II, Line 242.