LOUIS GLICK DIAMOND CORP. v. DRAKE et al, No. 2:2009cv05970 - Document 15 (E.D. Pa. 2011)
Court Description: MEMORANDUM AND OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 1/10/11. 1/11/11 ENTERED AND COPIES MAILED, E-MAILED.(fdc)
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Glick, which stated in pertinent part that CDMI and the il(akes thern::;elvcs would "absolutely unconditionally jointly and severally" (1) reimburse Glick ifBBH were to draw upon the Letter of Credit; ard (2) pay "all costs and expenses, including reasonable attorneys tces and legal expenses. paid or incurred by [Glick] in endeavoring to coHect the Indebtedness, or any part thereof, and in enforcing this Guaranty.'''' CDMI failed to make a scheduled payment to BBH on August 6, 2U09, and the bank declared entire exis.ting loan balance of $684,326.82 to be immediately due and payable, as it was emitled to under the terms of the Amended and Restated Promissory Nore. 5 Within a month. BBH dre\\" thi!) exact sum on the Letter of Credit - and Glick, consistent with the terms of the Guarantee of Payment, demanded reimbursement from the Drakes,1i Since September 10.2009, \\<i1en GHck'$ demand letter was sent, the Drakes have apparl1ltly failed and refused to make the 5684,326,82 payment to Ghck, On December 15, 20U9, Glick filed a two-count Complaint against the Drakes, alleging that they had breached (I) the1r Guarantee of Payment agreement \"ith Glick, which required them to personally reimburse Glick ifBBH drew on Glick's Letter of Credit; and (2) their Amended and Restated Promissory Note agreement with BBH, which triggered the bank's right to draw on Glick '5 Letter of Credit In answering the Complaint on April 16, 2010, the Drakes did not deny its cenLraI allegations. Su Guarantee of Payment (Ex. G to the Complaint), and also Mr. Cohen's Affidavit. 5 See- Letter from fiBH to CDMI. datt!d August 20, 2009 (part of Ex, 3 to the Motion for Summary Judgment), and also Mr. Coht:n's Affidavit ", See Mr. Cohen's Affidavit, stating that fiBH drew on the Leiter on September 3, 2009; that Glick immediately reimbursed HSBC; and that Glick sent a demand to CDMI on September 10. 3 and they indeed acknQwk"rlged that they have not paid Glick. 7 LEGALSTANDARI> Upon motion of a party, summary judgment is appropriate "if the pieadings, depositions, answers to interrogatories, and admissions on file. together "'lith the affidavits, if any. show that there is no genuine issue as to any material fact and that the moving party is entiUed to a judgment as a matter ofiaw." Fed. R, Civ. P. 56(\:). Summary judgment may be granted only if the moving party persuades the district court that "there exists no genuine issue of material faet that would permit a reasonable jury to tind lor the nonmoving party." Aliller v_ lnd Hosp., 843 F.2d 139, 143 (3d Cir. 1988), An issue is "genuine" ifa reasonable jury could possibly hold in the non-movant's favor with regard to that issue, S(!e Anderson v. Liberly Lobhy, Inc., 477 U.s. 242, 248, Hl6 S, Ct, 2505, 91 LEd, 2d 202 (1986). A fact i. "material" only if it could affect the result of the suit under governing law. ld Evaluating a summary judgment motion, the court "must the facts in the light most favurable to the non-moving party/' and make every reasonable inlerence in that party's favor, Hugh v, Butler County Family YMCA, 418 ,"3d 265, 267 (3d Cir, 2005), If, alter making all reasonable inferences in favor of the party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 "It is admitted that RBH made a draw on the Letter of Credit" {1 3!); "it is admitted that Plaintiff made a demand upon the Defendants" (1124); -it is admitted that the Defendants h(lvc not paid the amount'> demanded by PlaintifF' Glick says that Defendants have in essence ceased to defend themselves. They have nol SCr\<-ed Rule 26 dbclosures on Glick, nor have they responded or requested an extension to respond to Glick's discovery requests (lrtaken any discovery of their own, See Glick's Summary Judgment Memorandum at 2. 4 U.S. 217, 322 (1986); Wisniewski v. Johns-Mom'ille CO/p., 812 F.2d 81, 83 (3d Cir. 1987). The Court bears in mind that the "underlying purpose of summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense," Walden v. SIIinl Gob.ln, 323 F. Supp. 2d 637, 642 (E.D. Fa. 2()(l4). DISCUSSIOl'i The record in this case includes the relevant contractual agreements, as well as an affidavit from Aaron Cohen, Glick's chief financial officer, whose version of events is consistent with that taken by his employer in its filings. The Amended and Restated Promissory Note and the Guarantee ofPaymcnt are clear on their faces. These documents - along with the Suretyship and GUarantee Agreements attached as Exhibits E and F to the Complaint - indicate that Craig Drake, Sr. and Craig Drake. Jr. were personany liable for CDMI's loan obligations to BBH, and that in the event of CDMl's failure to meet those obligations. they were also personally liab1e for CDMI's obligation to repay Glick if BBH drew on the HSBC Letter ofCrediL The Drakes have provided no alternative interpretation of the relevant contracts. They acknowledge that they have not paid Gllck., and do not contest that CDMT failed to satisfY its loan obligations to EBH. or that BBI! subsequently drew on the Letter of Credit Thus, there is ample evidence in the record that would allow a finder of fact to conclude that the Drakes breached their contractual obligations, and none that would give rise to the opposite conclusion. 5 CONCLUSION Given that there is no genuine iS5UC of material fact which could permit a reasonable jury to find in favor of the Drakes as to the Issue of breach of contract. Glick lS Motion for Sununary Judgment will be granted, An Order to this effect fol1ows. n / /J) .. .K. PRATTER 8 This Order ,:;eu!cs the question of liability. und provides a simple process thmugh which the Court shall make a future determination as to the issue of dauiages. 6
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