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Whitlock Packaging Corp. v. Stearns

United States District Court, D. Colorado

April 8, 2015



KATHLEEN M. TAFOYA, Magistrate Judge.

This matter is before the court on "Defendants Brian Stearns and Fuzzee Bee Beverages, LLC's Motion for Summary Judgment and Incorporated Brief in Support" (Doc. No. 87 [Mot.], filed November 7, 2014). Plaintiff filed its response on November 26, 2014 (Doc. No. 93 [Resp.]), and Defendants filed their reply on December 10, 2015 (Doc. No. 100 [Reply]). This motion is ripe for ruling.


Plaintiff alleges that Defendant Fuzeebee Beverage, LLC, has committed a breach of contract by failing to pay Plaintiff all amounts due and owing under an Amended Contract Manufacturing and Packaging Agreement ("CMPA") for Plaintiff's production of the energy drink Zun. ( See Doc. No. 43 [Am. Compl.].)


Summary judgment is appropriate 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). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Fed.R.Civ.P. 56(c). A disputed fact is "material" if "under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.


1. Breach of Contract Claim

Defendants assert they are entitled to summary judgment on Plaintiff's First Claim for Relief for Breach of Contract. In its Amended Complaint, Plaintiff alleges Defendant Fuzzee Bee breached the CMPA with Plaintiff "by failing to pay for manufacture and packaging services" provided by Plaintiff. (Compl., ¶ 19.)

In their motion, Defendants argue that, under the terms of the contract, Plaintiff had a duty to perform before Defendant Fuzzee Bee's duty to pay was triggered. Defendants rely on Section 4 of the CMPA, which states as follows:

On a periodic basis during the Term, Customer shall deliver to WPC purchase orders incorporating the terms and conditions set forth herein and setting forth the applicable volumes of products, delivery dates and delivery locations. WPC shall timely and promptly deliver the products as specified in such orders. WPC will generate an invoice for all goods shipped for or to Customer at the rates outlined in Exhibit A' plus freight. Such invoices will be due Net 45-days from date of issuance.

(Mot., Ex. 6 at 5, ¶ 4 [emphasis in original].) Defendant Fezzee Bee contends that Plaintiff failed to manufacture and package Zun without substantial delay and defects, and maintained the responsibility for the poor materials and packaging from third parties; failed to produce Zun to specifications and in a timely manner; failed to prepare quality control records, monthly cost advance limits or maintain contractual liability ...

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