Reser's Fine Foods, Inc. v. H.C. Schmieding Produce Co., LLC et al, No. 5:2016cv04150 - Document 96 (D. Kan. 2017)

Court Description: MEMORANDUM AND ORDER granting in part and denying in part 75 Motion for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 9/15/17. (msb)

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Reser&#039;s Fine Foods, Inc. v. H.C. Schmieding Produce Co., LLC et al Doc. 96 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS RESER’S FI NE FOODS, I NC., Plaint iff, v. No. 16- 4150- SAC H.C. SCHMI EDI NG PRODUCE CO., LLC., and C & E FARMS, I NC., Defendant s. ____________________________________ H.C. SCHMI EDI NG PRODUCE CO., LLC., Third- part y Plaint iff, v. RESER’S FI NE FOODS, I NC., SUNTERRA PRODUCE TRADERS, I NC., and C.H. ROBI NSON WORLDWI DE, I NC., Third- part y Defendant s. MEMORANDUM AND ORDER This case com es before t he court on t he m ot ion of H.C. Schm ieding Produce Co., LLC ( “ Schm ieding” ) for sum m ary j udgm ent ( ECF# 75) against t he plaint iff Reser’s Fine Foods, I nc. ( “ Reser’s” ) . The part ies have filed t heir respect ive m em oranda, and t he m ovant asks for oral argum ent . The court does not find oral argum ent necessary here. The part ies have fully briefed t he issues, and oral argum ent would not m at erially assist t he court in deciding t he m erit s of t he pending m ot ion. Dockets.Justia.com BACKGROUN D OF ALLEGATI ON S I n Sept em ber of 2016, Reser’s filed t his declarat ory j udgm ent act ion asking for an offset of $269,519.87, as t he alleged dam ages from Schm ieding’s breach of cont ract in supplying a load of celery t hat Reser’s had used in it s finished food product s and was not ified lat er t hat t he celery was t he subj ect of a recall and t hen a hold. ECF# 1. Reser’s had cont ract ed wit h Schm ieding on or about February 19, 2015, for t he purchase of 91 t ruckloads of celery t o be delivered bet ween February of 2015 and January of 2016 ( “ 2015 Celery Cont ract ” ) . Reser’s alleges t he load of celery in disput e was delivered on Novem ber 11, 2015, pursuant t o invoice # 133505 1 and cont ained long st alk celery, bulk from LUNDY 10b- 2. Reser’s alleges t hat by t he t im e Schm ieding verbally not ified it of t he hold being lift ed, Reser’s had already disposed of t he finished product and was in t he process of replacing t he product due for delivery t o it s cust om ers. Reser’s alleges it “ has wit hheld $269,519.87 from Defendant Schm ieding, as an offset t o am ount s ot herwise due Defendant Schm ieding for celery delivered t o Plaint iff during 2015.” ECF# 1, ¶ 32. Reser’s dem ands a declarat ory j udgm ent t hat it is ent it led t o ret ain t his offset as dam ages and t hat t he defendant s are barred from assert ing any “ furt her claim s by reason of celery Defendant s supplied and delivered t o 1 This is t he num ber appearing on Schm ieding’s invoice t hat corresponds wit h t he purchase order # 838903 for celery purchased and billed t o Reser’s for delivery on Novem ber 11, 2015. ECF# 76- 9, p. 19. 2 Plaint iff in Novem ber, 2015, and under t he 2015 Celery Cont ract .” ECF# 1, p. 6. Schm ieding alleges t hat pursuant t o an asset purchase agreem ent it acquired all right s and assum ed all obligat ions under t he 2015 Celery Cont ract . ECF# 62 pp. 7- 8. This celery cont ract obligat ed Reser’s t o purchase six loads of celery in Novem ber of 2015, but Reser’s asked Schm ieding t o locat e on t he open m arket a sevent h load of celery and sell it t o Reser’s on t he issued purchase order # 838903. Schm ieding did t his and ent ered int o an agreem ent for t he sale and purchase of t he celery described in t he purchase order. Schm ieding delivered t his load t o Reser’s on Novem ber 11, 2015, which is t he subj ect of invoice # 133505. Over Schm ieding’s repeat ed dem ands, Reser’s has failed t o pay for t he loads of celery delivered bet ween Oct ober 12, 2015 and February 22, 2016, and Reser’s present ly owes Schm ieding t he am ount of $276,519.87. On t hese allegat ions, Schm ieding assert s four count erclaim s against Reser’s for: 1) failure t o pay t rust funds in violat ion of t he Perishable Agricult ural Com m odit ies Act , 7 U.S.C. §§ 499a, et seq. ( “ PACA” ) ; 2) failure t o m ake prom pt and full paym ent for shipm ent s in violat ion of PACA; 3) breach of cont ract and invoices in not t im ely rem it t ing paym ent ; and 4) recovery of int erest and at t orney’s fees. ECF# 62, pp. 11- 13. 3 SUM M ARY JUD GM EN T STAN D ARD S Rule 56 m andat es sum m ary j udgm ent “ against a part y who fails t o m ake a showing sufficient t o est ablish t he exist ence of an elem ent essent ial t o t hat part y's case, and on which t hat part y will bear t he burden of proof at t rial.” Celot ex Corp. v. Cat ret t , 477 U.S. 317, 322 ( 1986) . “ Of course, a part y seeking sum m ary j udgm ent always bears t he init ial responsibilit y of inform ing t he dist rict court of t he basis for it s m ot ion, and ident ifying t hose port ions of ‘t he pleadings, deposit ions, answers t o int errogat ories, and adm issions on file, t oget her wit h t he affidavit s, if any,’ which it believes dem onst rat e t he absence of a genuine issue of m at erial fact .” I d. at 323. This does not m ean t hat t he m oving part y m ust negat e t he ot her sides’ claim s or defenses t hrough affidavit s. I d. Upon a properly support ed m ot ion for sum m ary j udgm ent , t he nonm oving part y m ust go beyond t he pleadings, t hat is, m ere allegat ions or denials, and set fort h specific fact s showing a genuine issue of m at erial fact for t rial, relying upon t he t ypes of evident iary m at erials cont em plat ed by Rule 56. I d. The court decides t he m ot ion “ t hrough t he prism of t he subst ant ive evident iary burden.” Anderson v. Libert y Lobby, I nc., 477 U.S. 242, 254 ( 1986) . Thus, a fact ual disput e is “ m at erial” only if it “ m ight affect t he out com e of t he suit under t he governing law.” I d. at 248. A “ genuine” fact ual disput e requires m ore t han a m ere scint illa of evidence in support of a part y's posit ion. I d. at 252. The purpose of Rule 56 “ is not t o replace 4 conclusory allegat ions of t he com plaint or answ er wit h conclusory allegat ions of an affidavit .” Luj an v. Nat 'l Wildlife Fed'n, 497 U.S. 871, 888 ( 1990) . At t he sum m ary j udgm ent st age, t he court is not t o be weighing evidence, credit ing som e over ot her, or det erm ining t he t rut h of disput ed m at t ers, but only deciding if a genuine issue for t rial exist s. Tolan v. Cot t on, - - - U.S.- - - , 134 S. Ct . 1861, 1866 ( 2014) . The court perform s t his t ask wit h a view of t he evidence t hat favors m ost t he part y opposing sum m ary j udgm ent . I d. Sum m ary j udgm ent m ay be grant ed if t he nonm oving part y's evidence is m erely colorable or is not significant ly probat ive. Libert y Lobby, 477 U.S. at 250–51. Essent ially, t he inquiry is “ whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o t he j ury or whet her it is so one- sided t hat one part y m ust prevail as a m at t er of law.” I d. at 251–52. SUM M ARY OF POSI TI ON S AN D SUBSTAN TI VE LAW Schm ieding seeks “ sum m ary j udgm ent against Reser’s on each of it s causes of act ion.” ECF# 76, p. 10. I t asks t he court t o ent er j udgm ent against Reser’s in t he principal am ount of $276,862.39, plus int erest at t he rat e of 18% per annum accrued t hrough t he dat e of j udgm ent , and at t orney’s fees act ually incurred in t he am ount of $62,149.94. Schm ieding’s first count erclaim addresses PACA’s st at ut ory t rust liabilit y. The court ’s prior order laid out t he following as relevant t o t his claim : The Perishable Agricult ure Com m odit ies Act , which was enact ed in 1930 t o suppress unfair and fraudulent business pract ices in t he 5 m arket ing of perishable com m odit ies, was am ended in 1984 t o provide unique credit prot ect ion t o sellers of perishable agricult ural com m odit ies. Because sellers of perishable com m odit ies had a need t o m ove t heir invent ories quickly, t hey were oft en required t o becom e unsecured credit ors of t heir purchasers, whose credit t hey were oft en unable t o verify. . . . The 1984 am endm ent s creat e, upon t he sale of perishable agricult ural com m odit ies, a t rust for t he benefit of t he unpaid sellers of t he com m odit ies on ( 1) t he com m odit ies, ( 2) t he invent ory or product s derived from t hem , and ( 3) t he proceeds of t he invent ory or product s. 7 U.S.C. § 499e( c) ( 1) - ( 2) ; see also House Report at 3 ( recount ing congressional findings) ; Reaves Brokerage Co. v. Sunbelt Fruit & Veget able Co., 336 F.3d 410, 413 ( 5t h Cir.2003) ( sam e) . As am ended, PACA requires t hat purchasers of perishable agricult ural com m odit ies m aint ain t he t rust by ret aining t he com m odit ies or t heir proceeds unt il t he com m odit ies sellers are paid, and it m akes it unlawful t o “ fail t o m aint ain t he t rust as required.” 7 U.S.C. § 499b( 4) . PACA confers j urisdict ion on dist rict court s t o ent ert ain “ act ions by t rust beneficiaries t o enforce paym ent from t he t rust .” I d. § 499e( c) ( 5) . The t rust creat ed by PACA is a “ nonsegregat ed ‘float ing’ t rust ” on perishable agricult ural com m odit ies and t heir derivat ives unt il all sellers of such com m odit ies are paid. 7 C.F.R. § 46.46( b) . Because t he governing regulat ions specifically cont em plat e t he com m ingling of t rust asset s wit hout defeat ing t he t rust , see id., t he t rust ee of such a t rust is perm it t ed t o convert t rust asset s int o ot her propert y, provided t hat t he t rust ee honors it s obligat ion t o “ m aint ain t rust asset s in a m anner t hat such asset s are freely available t o sat isfy out st anding obligat ions t o sellers of perishable agricult ural com m odit ies,” id. § 46.46( d) ( 1) . Any act inconsist ent wit h m aint aining t he t rust , including “ dissipat ion” of t rust asset s, is deem ed unlawful and a violat ion of PACA. See 7 U.S.C. § 499b; 7 C.F.R. § 46.46( d) ( 1) . “ Dissipat ion” is defined as “ any act or failure t o act which could result in t he diversion of t rust asset s or w hich could prej udice or im pair t he abilit y of unpaid suppliers, sellers, or agent s t o recover m oney owed in connect ion wit h produce t ransact ions.” 7 C.F.R. § 46.46( a) ( 2) . ECF# 42, pp. 11- 12 ( quot ing Nickey Gregory Co., LLC v. Agricap, LLC, 597 F.3d 591, 594- 95 ( 4t h Cir. 2010) ) . The court ’s prior order also sum m arized t hat a com m odit ies purchaser violat es PACA by failing t o ret ain in t rust t he com m odit ies or t heir proceeds unt il t he com m odit ies seller is paid. I d. at p. 6 12. This t rust is a “ nonsegret at ed float ing t rust ” in which t he com m odit ies and t heir proceeds can be com m ingled or convert ed int o ot her asset s so long as t he t rust asset s are m aint ained t o be “ freely available t o sat isfy out st anding obligat ions” t o t he com m odit ies sellers. I d. Act ing or failing t o act wit h respect t o t he t rust asset s violat es PACA if t he asset s are not m aint ained t o be freely available t o sat isfy obligat ions but are divert ed or if t he unpaid sellers’ recovery of t he ow ed m oney is prej udiced by t he dissipat ion of asset s. Besides t he t rust ee’s dut y t o m aint ain and ensure sufficient asset s, court s have recognized t hat as a PACA t rust ee, “ a produce buyer is charged wit h a dut y ‘t o ensure . . . . t hat any beneficiary under t he t rust will receive full paym ent .’” Coosem ans Specialt ies, I nc. v. Gargiulo, 485 F.3d 701, 705 ( 2nd Cir. 2007) ( quot ing D.M. Rot hm an & Co. v. Korea Com m ercial Bank of N.Y., 411 F.3d 90, 94 ( 2d Cir.2005) ) . This is because: The buyer has a “ fiduciary obligat ion under PACA t o repay t he full am ount of t he debt owed t o t he PACA beneficiary.” C.H. Robinson Co. v. Alanco Corp., 239 F.3d 483, 488 ( 2d Cir.2001) . Under t he st at ut e, t he t rust is form ed at t he m om ent t he buyer receives t he produce and rem ains in effect unt il t he seller is paid in full. See 7 C.F.R. § 46.46( c) ( 1) ; I n re Kornblum & Co., 81 F.3d 280, 286 ( 2d Cir.1996) . However, t o est ablish t he exist ence of a PACA t rust , a num ber of prerequisit es m ust be m et : [ T] he seller m ust dem onst rat e t hat : ( 1) t he com m odit ies sold were perishable agricult ural com m odit ies; ( 2) t he purchaser of t he perishable agricult ural com m odit ies was a com m ission m erchant , dealer or broker; ( 3) t he t ransact ion occurred in int erst at e or foreign com m erce; ( 4) t he seller has not received full paym ent on t he t ransact ion; and ( 5) t he seller preserved it s t rust right s by giving writ t en not ice t o t he purchaser of it s int ent ion t o do so. 7 Taylor & Fult on [ Packing, LLC v. Marco I nt ern. Foods, LLC,] 2011 WL 6329194, at * 5 [ ( E.D.N.Y. 2011) ] ( cit at ions om it t ed) . Dell's Maraschino Cherries Co., I nc. v. Shoreline Fruit Growers, I nc., 887 F. Supp. 2d 459, 477 ( E.D.N.Y. 2012) ; see Tom Ver LLC v. Organic Alliance, I nc, 2015 WL 6957483 at * 8 ( N.D. Cal. Nov. 11, 2015) . I n sum , Schm ieding’s first count erclaim addresses t he addit ional rem edy of a st at ut ory t rust as expressed in t he fift h elem ent st at ed above, but Schm ieding’s second PACA count erclaim addresses t he t rust ee’s/ buyer’s failure t o m ake prom pt paym ent as expressed in t he first four elem ent s: “ Under PACA, it is unlawful for buyers of produce, int er alia, t o fail t o m ake prom pt paym ent for a shipm ent of produce.” I d. [ I dahoan Fresh v. Advant age Produce, I nc., 157 F.3d 197, 199 ( 3d Cir. 1998) ] ( cit ing 7 U.S.C. § 499b( 4) ) . A buyer's failure t o t ender prom pt paym ent t riggers civil liabilit y and t he possible suspension or revocat ion of t he buyer's PACA license t hat 7 U.S.C. § 499c requires. See 7 U.S.C. § 499h( a) . The PACA regulat ions define t he t im e for prom pt paym ent , which applies unless t he part ies agree ot herwise in writ ing t o different paym ent provisions prior t o t he t ransact ion. See 7 C.F.R. § 46.2( aa) . Pacific I nt ern. Market ing, I nc. v. A & B Produce, I nc., 462 F.3d 279, 282 ( 3d Cir. 2006) . Schm ieding’s second PACA count erclaim seem s t o be art iculat ed wit hin t he first four elem ent s expressed above. The part ies’ m em oranda show t here is no disput e over t he first t hree elem ent s ( perishable com m odit y, licensed purchaser and int erst at e com m erce t ransact ion) . As t o t he fourt h elem ent , seller’s receipt of full paym ent on t he t ransact ion, it is uncont rovert ed t hat bet ween Oct ober 12, 2015 and February 22, 2016, Schm ieding sold and delivered t o Reser’s in int erst at e com m erce 25 t ruckloads of celery wort h $276,519.87, t hat 8 Schm ieding t im ely invoiced Reser’s for all of t hese loads, and t hat Reser’s has wit hheld paym ent on all 25 loads assert ing a set off t o recover it s cost s and losses result ing from it s use of t he celery delivered pursuant t o invoice # 133505. Wit h respect t o t his fourt h elem ent , t he part ies disput e t he legal propriet y of Reser’s use of a set off rem edy pursuant t o cust om and pract ice as governed by t he Uniform Com m ercial Code provisions. As t o t he fift h elem ent , seller’s writ t en not ice preserving t rust right s, it is uncont rovert ed t hat each of t he 25 invoices included t he necessary st at ut ory t rust language required by 7 U.S.C. § 499e( c) ( 4) . For bot h of t hese count erclaim s, Schm ieding is assert ing t he sam e act ionable wrong by t he buyer or t rust ee in failing t o m ake t im ely paym ent . Reser’s argum ent s of having m aint ained adequat e liquid asset s for t he t rust and of having no proceeds from t he one load of celery does not address it ’s alt ernat ive liabilit y for failure t o pay for all 25 loads of celery. On it s t hird count erclaim , Schm ieding alleges t he 2015 Celery Cont ract and t he invoices are valid and enforceable cont ract s which Reser’s breached by failing t o m ake t im ely paym ent for t he delivered celery. The part ies do not address whet her t his claim is subj ect t o Arkansas or Kansas law. The 2015 Celery Cont ract includes t he following provision: “ The cont ract shall have been deem ed t o have been m ade in Washingt on Count y, Arkansas and shall be governed by Arkansas law.” ECF# 76- 8, p. 3. For t he elem ent s of proof on it s breach of cont ract act ion, Schm ieding cit es a federal 9 dist rict court opinion applying Kansas law. ECF# 76, p. 19 ( cit ing Brit vic Soft Drinks, Lt d v. ACSI S Technologies, I nc., 265 F. Supp. 2d 1179 ( D. Kan. 2003) ( “ The elem ent s for a breach of cont ract claim are: ( 1) t he exist ence of a cont ract bet ween t he part ies; ( 2) considerat ion; ( 3) t he plaint iff’s perform ance or willingness t o perform in com pliance wit h t he cont ract ; ( 4) defendant ’s breach of t he cont ract ; and ( 5) t hat plaint iff was dam aged by t he breach.” ( cit at ion om it t ed) ) . Schm ieding’s apparent posit ion is t hat Kansas law would govern it s breach of cont ract claim arising out of it s sale and delivery of t he addit ional celery allegedly not covered by t he 2015 Celery Cont ract . As for t he claim s of breaching t he 2015 Celery Cont ract , t he part ies agree t hat Arkansas law governs. See Keit h Capps Landscaping & Excavat ion, I nc. v. Van Horn Const ., I nc., 2014 Ark App. 638, 448 S.W.3d 207, 210 ( 2014) ( “ I n order t o prove a breach- of- cont ract claim , one m ust prove t he exist ence of an agreem ent , breach of t he agreem ent , and result ing dam age.” ( int ernal quot at ion m arks and cit at ion om it t ed) ) . As wit h t he first t wo count erclaim s, what Schm ieding is assert ing as t he act ionable wrong or breach here is t he failure t o pay for t he 25 loads, and t he disput e concerns Reser’s use of a set off rem edy. RESER’S USE OF SETOFFS TO OFFSET I TS COSTS AN D LOSSES Relying on t he affidavit of it s Chief Financial Officer ( “ CFO” ) Paul Leavy, Reser’s posit ion is t hat , “ [ a] s of Novem ber, 2015, it was t he cust om and pract ice bet ween Reser’s and Schm ieding for Reser’s t o use set offs on 10 fut ure Schm ieding invoices t o offset cost s and losses Reser’s incurred due t o problem s wit h product s received from Schm ieding.” ECF# # 87, pp. 19- 20; 87- 2, p. 6. CFO Levy avers t hat based on Reser’s cost s and losses incurred from t he recall and hold on t he invoiced celery load # 133505, Reser’s followed t his cust om and pract ice by not paying Schm ieding’s celery invoices dat ed from Oct ober 27, 2015, t hrough March 11, 2016. I d. Finally, Reser’s acknowledges t hat t he 2015 Celery Cont ract is governed by Arkansas law, t hat t he cont ract cont ains no set off t erm s, and t hat “ Schm ieding correct ly argues t hat , as t he cont ract is one for a sale of goods bet ween m erchant s, t he Uniform Com m ercial Code applies and any right t o set off m ust arise out of t he UCC.” ECF# 87, p. 20. 2 Thus, Reser’s right s t o a set off against t he 2015 Celery Cont ract are governed by t he following UCC provision: “ The buyer on not ifying t he seller of his int ent ion t o do so m ay deduct all or any part of t he dam ages result ing from any breach of t he cont ract from any part of t he price st ill due under t he sam e cont ract .” Ark. Code Ann. § 4- 2- 717. “ Because § 2- 717 aut horizes a buyer t o deduct dam ages result ing from t he 2 “ A claim t o equit able set off is preem pt ed by U.C.C. § 2- 717. Because t he U.C.C. specifically provides for set offs in part icular circum st ances, t he Code draft ers and t he st at e legislat ures t hat have adopt ed t he Code int ended t o displace com m on- law set off.” Lawrence’s Anderson on UCC § 2- 717: 4 ( 3d. ed.) ( cit ing Am erisourceBergen Corp. v. Dialysist West , I nc., 465 F.3d 946, 951 ( 9t h Cir. 2006) ( which cit es Carlisle Corp. v. Uresco Const . Mat erials, I nc., 823 F. Supp. 271, 275 ( M.D. Pa. 1993) ( “ Because of t hat , we m ust conclude t hat t he Code draft ers, and t he st at e legislat ures t hat have adopt ed t he Code, m eant t o displace t he com m on law set - off. See Microsize, I nc. v. Arkansas Microfilm , I nc., 29 Ark. App. 49, 55, 780 S.W.2d 574, 578 ( 1989) .” ) ) . 11 seller’s breach, t he buyer does not breach t he part ies’ cont ract when it properly deduct s t hese dam ages.” Tegrant Alloyd Brands, I nc. v. The Merchant of Tennis, I nc., 2011 WL 249469, at * 6 ( N.D. I ll. Jan. 26, 2011) . I f t here rem ains a genuine fact ual issue over Reser’s proper use of t he set - off rem edy, t hen sum m ary j udgm ent m ust be denied as t o Schm ieding’s claim s t hat Reser’s violat ed PACA and breached t he 2015 Celery Cont ract by failing t o m ake t he required invoice paym ent s. I d. Schm ieding argues t hat Reser’s posit ion relies on an overbroad applicat ion of 2- 717. This provision “ ’is not a general set - off provision perm it t ing a buyer of goods t o adj ust it s cont inuing cont ract obligat ions according t o t he equit ies perceived by t he buyer.’” I TV Direct , I nc. v. Healt hy Solut ions, LLC, 379 F. Supp. 2d 130, 133 ( D. Mass. 2005) ( quot ing C.R. Bard, I nc. v. Med. Elecs. Corp., 529 F. Supp. 1382, 1387 ( D. Mass. 1982) ) , aff’d, 445 F.3d 66 ( 1st Cir. 2006) . Schm ieding cont ends Reser’s failed t o provide t he required not ice t o Schm ieding of it s “ int ent ion” t o deduct or offset it s cost s or losses. According t o Schm ieding, Reser’s only relevant com m unicat ion m akes no m ent ion of deduct ing or offset t ing losses from am ount s due under t he 2015 Celery Cont ract . Even assum ing t im ely adequat e not ice, Schm ieding argues invoice # 133505 is a separat e t ransact ion not covered by t he 2015 Celery Cont ract and, “ t herefore Reser’s cannot wit hhold every penny due Schm ieding based on dam ages allegedly 12 incurred in connect ion wit h t he goods it received only under t he Purchase Order, t he value of which was only $15,490.40.” ECF# 76, p. 18. Not ice of I nt ent ion t o Deduct I t is uncont rovert ed t hat Reser’s sent Schm ieding a let t er dat ed Decem ber 2, 2015, t hat list ed t he kinds of cost s incurred as a result of t he recall and hold order placed on t he invoiced load # 133505. This let t er concluded wit h t he following: For all of t he above reasons, t here m ay be causes of act ion and claim s against all part ies in t he supply chain t o Reser’s Fine Foods, I nc. Cost s are being accum ulat ed and t racked by our account ing depart m ent . We will be in cont act wit h you t o discuss t he result of t heir review and t he im pending consequences of t he hold order. Please let m e know when you and/ or t he appropriat e represent at ive( s) from H.C. Schm ieding would be available for a conference call. ECF# 76- 11, p. 2. Then on Decem ber 22, 2015, a Reser’s represent at ive sent t o a Schm ieding represent at ive an em ail st at ing t hat , “ at t ached is a copy of t he credit for t he celery issue. I will call t o discuss.” ECF# 87- 14. The official UCC com m ent on t he not ice requirem ent of 2- 717 reads: The buyer, however, m ust give not ice of his int ent ion t o wit hhold all or part of t he price if he wishes t o avoid a default wit hin t he m eaning of t he sect ion on insecurit y and right t o assurances. I n conform it y wit h t he general policies of t his Art icle, no form alit y of not ice is required and any language which reasonably indicat es t he buyer's reason for holding up his paym ent is sufficient . Ark. Code Ann. § 4- 2- 717. The Arkansas Suprem e Court calls t his “ a sensible requirem ent , for t he seller should be apprised of t he buyer’s int ent ions in wit hholding t he price.” Jones v. At kins, 254 Ark. 472, 477, 494 13 S.W.2d 448, 451 ( 1973) . Because t here is no required form alit y wit h t his not ice, it can be done t hrough t elephone conversat ions, m eet ings, let t ers and ot her com m unicat ions. Sencon Syst em s, I nc. v. W.R. Bonsal Co., 1986 WL 10989 at * 3 ( N.D. I ll. Sept . 29, 1986) . Reser’s has com e forward wit h evidence t hat it used let t ers, em ails and conversat ions t o com m unicat e about it s losses and it s calculat ion of t he sam e in arriving at a “ credit .” A reasonable j ury could find t hat t hese com m unicat ions “ reasonably indicat e” Reser’s int ent ion t o assert a “ credit ” against fut ure dealings/ paym ent s and it s reason for t he sam e. The court is sat isfied t hat t here is evidence of a sufficient disagreem ent over t he nat ure and t im ing of t he not ice as t o creat e genuine issues of m at erial fact . Sam e Cont ract Upon not ifying t he seller, t he buyer “ m ay deduct all or any part of t he dam ages result ing from any breach of t he cont ract from any part of t he price st ill due under t he sam e cont ract .” Ark. Code Ann. § 4- 2- 717. The official UCC com m ent em phasizes t his sam e cont ract requirem ent , “ To bring t his provision int o applicat ion t he breach involved m ust be of t he sam e cont ract under which t he price in quest ion is claim ed t o have been earned.” I d. Thus, court s rej ect set off defenses based on dam ages arising from breaches of different cont ract s. See, e.g.,Am erisourceBergen Corp. v. Dialysist West , I nc., 465 F.3d 946, 950 ( 9t h Cir. 2006) ( “ A plain reading of t he st at ut e [ § 2- 717] indicat es t hat a part y m ay not set - off a cont ract ual 14 claim against a debt on a separat e cont ract .” ) ; ECHO, I nc. v. Whit son CO., I nc., 52 F.3d 702, 705- 06, 708 ( 7t h Cir. 1995) ( Dist ribut orship agreem ent s are different cont ract s from t he purchase orders t hat arise under t hem , because t he source of right s relat ed t o price, t ype and quant it y of goods arise under t he purchase order, not t he dist ribut orship agreem ent . “ Each part y’s right s have t heir origins in different cont ract s, and we have det erm ined t hat such a st at e of affairs precludes set - off.” ( cit at ions om it t ed) ) ; I TV Direct , I nc. v. Healt hy Solut ions, LLC, 379 F. Supp. 2d 130, 133 ( D. Mass. 2005) ( “ [ I ] t is well est ablished t hat t he buyer’s obligat ion t o pay for goods t endered and accept ed does not arise under t he sam e cont ract as t he alleged breach of an exclusive dealing or dist ribut orship agreem ent by t he seller.” ( int ernal quot at ion m arks and cit at ion om it t ed) . The dist ribut ion agreem ent cont em plat ed sales, but t he purchase orders cont rolled t he price, t ype, and quant it y of goods.) ; GFSI , I nc. v. J- Loong Trading, Lt d., 2006 WL 3523782, at * 3 ( D. Kan. Dec. 6, 2006) ( “ Based on t he general t erm s of t he Requirem ent s Manual and absent price or quant it y t erm s and t he signat ures of t he part ies, each purchase order ( aft er accept ance by J- Loong) const it ut ed a separat e and dist inct cont ract .” ) ; 1 Roy Ryden Anderson, Dam ages Under t he Uniform Com m ercial Code, § 7.3 ( 2016) ( “ Sect ion 2- 717 does not aut horize deduct ions for breaches of separat e cont ract s.” ( Foot not e of support ing cit at ions om it t ed) ) ; 4A David Frisch, Lawrence’s Anderson on t he Uniform Com m ercial Code, § 2- 717: 18 ( 2016) ( “ While a buyer has t he 15 right t o deduct breach of cont ract dam ages from t he purchase price of delivered goods, he m ust show t hat t he breach was under t he sam e cont ract t hat obligat ed paym ent .” ( cit at ion om it t ed) ) ; c.f. J- B Market ing, I nc. v. Golden Count y Foods, I nc., 2013 WL 12109102, at * 4 ( W.D. Wis. Jan. 13, 2013) ( “ I f an init ial agreem ent cont ains only general t erm s and separat e purchase orders or invoices cont ain t he specific t erm s or relat e t o different goods, t he agreem ent s are m ore likely t o be considered separat e cont ract s under t he law.” The court recognized a quest ion of fact when t he init ial agreem ent included det ails on price, t ype and quant it y of goods as t o show t he lat er purchase orders are relat ed.) Sim ply put , “ in order for a buyer t o invoke § 2- 717, t he assert ed breach m ust go t o t he essence of t he t ransact ion under which t he seller seeks t o recover his price.” I TV Direct , 379 F. Supp. 2d at 133 ( int ernal quot at ion m arks and cit at ion om it t ed) . “ ’The purpose of § 2- 717 is t o enable business- persons t o disput e a part icular t ransact ion while carrying on t heir business ot herwise.’” Rebaque v. Forsyt he Racing I nc., 134 I ll. App. 3d 778, 480 N.E.2d 1338, 1341 ( 1985) ( quot ing Art m ark Associat es, I nc. v. Allied Tube & Conduit Corp., 32 UCC Report ing Service 454, 456 ( N.D. I ll. 1981) ) . Thus, m indful t hat UCC provisions are t o offer uniform it y, t hese decisions and t he prevailing int erpret at ions of 2- 717 offer “ a rule which furt hers t he values of cert aint y and predict abilit y, and is t hus consist ent wit h t he public int erest , i.e., t hat a seller be ent it led t o t he price of goods accept ed, 16 regardless of t he buyer’s claim under som e rem ot e t ransact ion.” I d. ( cit at ion om it t ed) . I n discussing Arkansas law on 2- 717, Reser’s cit es Mount ain Pure, L.L.C. v. Affiliat ed Foods Sout hwest , I nc., 96 Ark. App. 346, 241 S.W.3d 774 ( 2006) , and argues t hat t his decision recognizes applying t his set off provision “ liberally” in a debt - defense cont ext and t hat t his includes set t ing off it s dam ages from a cont ract wit h Affiliat ed against am ount s due under cont ract s wit h ot her packaging suppliers. The court will not follow Reser’s reading of Mount ain Pure. First , t he Arkansas Court of Appeals in t his decision not es t hat t he Arkansas st at ut e calling for liberal applicat ion of rem edies was repealed in 2005. 241 S.W.3d at 778 n.4. Second, t he Arkansas court discussed using 2- 717 t o deduct dam ages caused by vendors against am ount s owed t o t he sam e vendors under t he sam e cont ract s. Thus, t he court finds not hing in Mount ain Pure or in any ot her Arkansas case law t o suggest t hat Arkansas court s would int erpret or apply 2- 717 in a m anner t hat differs subst ant ially from t he prevalent int erpret at ion and applicat ion followed by ot her court s. Schm ieding first cont ends t hat for each load of celery delivered under t he 2015 Celery Cont ract , a separat e purchase order and invoice was issued t hereby m aking each load a separat e or divisible cont ract . ECF# 76, p. 18. Under Arkansas law, “ t he t est for det erm ining whet her a cont ract is ent ire or severable is t he int ent ion of t he part ies t o t he cont ract ,” and t his 17 int ent ion is learned “ from t he language used, t he subj ect m at t er of t he cont ract and circum st ances of t he part icular t ransact ion.” Elder Const . Co. v. I vey Lane, LLC, 2010 Ark. App. 10, 370 S.W.3d 861, 864 ( 2010) ( cit ing Jones v. Gregg, 226 Ark. 595, 604- 05, 293 S.W.2d 545, 550 ( 1956) ) . The court ’s det erm inat ion involves applying t his rule: As a general rule it m ay be said t hat a cont ract is ent ire when, by it s t erm s, nat ure, and purpose, it cont em plat es t hat each and all of it s part s are int erdependent and com m on t o one anot her and t o t he considerat ion, and t hat it is severable when, in it s nat ure and purpose, it is suscept ible of division and apport ionm ent . Act s of t he part ies in t reat ing t he cont ract as ent ire or severable have an im port ant bearing on it s const ruct ion. Elder Const . Co. v. I vey Lane, LLC, 370 S.W.3d at 864 ( quot ing Jones, 226 Ark. at 605) . ( Ark. App. 2010) . The UCC t reat s inst allm ent cont ract s calling for inst allm ent deliveries as generally a single cont ract rat her t han separat e cont ract s. See Ark. Code Ann. § 4- 2- 612. The part ies’ 2015 Celery Cont ract det ailed t he num ber of t ruckloads t o be delivered for a part icular year, it scheduled t he num ber of t ruckloads per m ont h, and it est ablished t he price for each t ruckload based on t he m ont h of delivery. The cont ract laid out t he part ies’ right s and obligat ions for t he sale, delivery and purchase of all 91 t ruckloads of celery. There is sufficient evidence here t hat a reasonable j ury could find t hat t he part ies’ int ent ion was for t he sale and purchase of all 91 t ruckloads of celery t o be governed by t he single 2015 Celery Cont ract . See Sencon Syst em s, I nc., 1986 WL 10989 at * 2- * 3. 18 Schm ieding alt ernat ively argues t hat even if t he 2015 Celery Cont ract is const rued as covering all 91 t ruckloads of celery regardless of t he separat e purchase orders and invoices, t he invoiced load # 133505 delivered on Novem ber 11, 2015, is “ expressly out side” t he 2015 Celery Cont ract . ECF# 76, p. 18. I n short , Schm ieding cont ends t hat t he invoiced load # 133505 is not one of t he 91 t ruckloads of celery under t he 2015 Celery Cont ract . I t is uncont rovert ed t hat t he 2015 Celery Cont ract called for six t ruckloads of celery in Novem ber t o be sold and delivered at t he price of $26.50. ECF# 76- 8, p. 4. Schm ieding assert s t hat t he invoiced load # 133505 is not one of t hese six cont ract loads, t hat Reser’s asked for a sevent h load in Novem ber, and t hat # 133505 is t his sevent h load, openm arket sale m ade under a separat e cont ract at a different price. Thus, Schm ieding argues t hat Reser’s claim ed losses from # 133505 are from a different cont ract . This m eans t hat in defending against it s liabilit y under PACA law or under com m on- law breach of cont ract law, Reser’s m ay not rely on having wit hheld paym ent s t hrough a set off of it s losses under t he # 133505 cont ract against t he ot her celery loads delivered under t he separat e 2015 Celery Cont ract . Reser’s argues t he “ fact s belie” Schm ieding’s posit ion t hat # 133505 is a separat e cont ract from t he 2015 Celery Cont ract . ECF# 87, pp. 27- 28. Specifically, Reser’s lines it self behind t he following point s: The part ies are in agreem ent t hat t he February 19 Cont ract of Sale called for delivery of 91 loads of celery during it s one- year t erm . . . 19 and called for delivery of six loads during Novem ber. . . . However, t he February 19 Cont ract of Sale did not specify t he dat es in Novem ber on which t he six deliveries would be m ade, it m erely specified t hat six deliveries would be m ade during Novem ber. . . . The load of celery delivered on Novem ber 11, 2015 was t he fourt h load delivered in Novem ber 2015, and t he 77t h load delivered during t he t erm of t he Cont ract of Sale. . . . Thus, it clearly fell wit hin t he six loads t o be delivered in Novem ber 2015 and t he 91 loads t o be delivered during t he t erm of t he February 19 Cont ract . . . . Neit her Am erisourceBergen [ Corp. v. Dialysist W., I nc., 465 F.3d 946 ( 9t h Cir. 2006) ] nor Berdex[ , I nc. v. Milfico Prepared Foods, I nc., 258 I ll. App. 3d 738, 630 N.E. 2d 998 ( 1994) ] asked t he quest ion whet her a sevent h shipm ent of a single com m odit y ordered during a m ont h in which a pre- exist ing writ t en cont ract calls for only six shipm ent s is sold under t he pre- exist ing cont ract or a different cont ract . Neit her did eit her opinion reach t he holding Schm ieding would need t o m ake it s case on t his point —nam ely, t hat where a preexist ing cont ract calls for six shipm ent s during a m ont h, wit hout specifying dat es, and t he buyer orders seven shipm ent s, t he order for t he sevent h shipm ent renders all of t he shipm ent s received during t hat m ont h shipm ent s received under separat e cont ract s. The Novem ber 11, 2015 load of celery was t he fourt h load received during Novem ber, not t he sevent h. . . . ECF# 87, pp. 28- 29. For it s evidence on t his point , Reser’s relies principally on t he affidavit of it s Chief Financial officer, Paul Leavy, which st at es at ¶¶ 5 and 6 t hat : 5. As shown by Exhibit 2, t he load of celery received by Reser’s Topeka facilit y on Novem ber 11, 2015, was t he fourt h load of celery received t hat m ont h from H.C. Schm ieding Produce Co., LLC ( “ Schm ieding” ) . The previous loads w ere received on Novem ber 2, 4 and 9. 6. As shown by Exhibit 2, t he load of celery received by Reser’s Topeka facilit y on Novem ber 11, 2015, was t he 77t h of 91 loads of celery called for under t he February 19, 2015, Cont ract of Sale bet ween Reser’s and Schm ieding, 76 loads having previously been received during t he cont ract period. ECF# 87- 2, p. 2. As CFO Leavy avers, Exhibit 2 is a t able prepared by Reser’s t o “ reflect t he num ber of celery loads Reser’s received from 20 Schm ieding pursuant t o t he February 19, 2015, Cont ract for Sale.” I d. ¶ 4. Sim ply put , Reser’s argues t hat # 133505 is part of t he 91 loads under t he 2015 Celery Cont ract because it was t he fourt h load of celery delivered in Novem ber and it was t he 77t h load of celery delivered during t he cont ract year. Ot her t han t he t im ing of when t he invoiced load # 133505 was delivered and CFO Leavy’s relat ed conclusory st at em ent s t hat t he load was t herefore part of t he 2015 Celery Cont ract , Reser’s offers no ot her fact s t o refut e Schm ieding’s posit ion t hat # 133505 was for a load of celery separat ely cont ract ed and was not part of t he 2015 Celery Cont ract . I n reply, Schm ieding subm it s t he affidavit of Gary Owens who has been it s sales m anager on Reser’s account for approxim at ely 20 years and is t he sales m anager who handled all t he t ransact ions involved in t his act ion. ECF# 92- 5. I n his affidavit , Ow ens explains t hat Schm ieding does not grow it s own celery but cont ract s wit h growers t o supply a volum e of celery t hat will m eet Schm ieding’s cust om ers’ needs for celery as scheduled in t he cust om er cont ract s. So, when a cust om er want s m ore celery t han has been scheduled in a cont ract , Schm ieding’s growers/ suppliers m ay be unable t o supply t he addit ional celery. Owens furt her avers t hat Reser’s sent t wo purchase orders for celery t o be delivered on Novem ber 9 and 11, 2015, which m eant t hat wit h t he t wo loads already delivered in Novem ber, Reser’s would be receiving t wo- t hirds of it s cont ract loads wit hin t he first part of 21 Novem ber. Owens inform ed Dean Bowhay 3 of Reser’s t hat Schm ieding’s could not fill t he purchase order for Novem ber 11t h as t he cont ract celery supplier could not provide t his m uch celery so early in Novem ber. Bowhay t old Owens t o look on t he open m arket t o fill t his order. Owens avers: 9. My supplier at Sunt erra Produce Traders, I nc. ( “ Sunt erra” ) t old m e t hat he could get a load of celery from C & E Farm s, I nc. ( “ C&E” ) , but t hat it was “ long st alk celery,” a different variet y from t he kind Schm ieding supplied under t he Cont ract . I had never sold t his t ype of celery before, so I called Bowhay t o see if he would be int erest ed. Bowhay t old m e he was fam iliar wit h t his variet y of celery and t hat it was accept able. We discussed open m arket pricing, and Bowhay inst ruct ed m e t o ship t he load at an agreed off- cont ract price. I m odified t he second purchase order, changing t he cont ract price from $26.50 t o $38.00 and not ing “ change t o per Dean [ Bowhay] open m kt load,” and faxed t he m odified purchase order t o Just in Elm ore, Reser’s buyer. Reser’s never disput ed t he revised t erm s of t he purchase order. A copy of t he m odified purchase order I faxed t o Elm ore was included in Schm ieding’s m ot ion papers as Exhibit J. [ ECF# 76- 10] . 10. C&E loaded t he celery on Novem ber 7 and we delivered it t o Reser’s on Novem ber 11, 2015. The load arrived and was unloaded wit hout any issues and we issued invoice 133505 at t he off- cont ract price of $38.00 per unit . Reser’s never disput ed t he invoice. . . . 11. During t he t erm of t he Cont ract , Schm ieding shipped 96 loads of celery t o Reser’s—five m ore t han were called for under t he Cont ract . Reser’s has paid for four of t he off- cont ract loads, and is wit hholding paym ent only for t he off- cont ract load t hat is at issue in t his lawsuit . . . . Not ably, invoice 133505 was for $38.00 per hundredweight , far m ore t han Cont ract pricing for Novem ber. ECF# 92- 5, pp. 5- 6. Schm ieding did not com e forward wit h t his affidavit unt il it was at t ached t o it s reply m em orandum , but it was offered in response t o Reser’s posit ion t hat invoice # 133505 was part of t he 2015 Celery Cont ract based on t he t im ing of t he purchase order and delivery. 3 Bowhay’s nam e appears on t he 2015 Celery Cont ract as t he signing represent at ive on behalf of Reser’s. ECF# 76- 8, p. 2. 22 ECF# 92. I t is not ewort hy t hat Reser’s has not sought t o leave t o file a surreply t o address t he specifics of Ow ens’ affidavit concerning invoice # 133505. Reser’s bears t he burden of est ablishing it s aut horit y t o set - off it s dam ages from invoice # 133505 against t he paym ent s owed for inst allm ent deliveries under t he 2015 Celery Cont ract . See Am erisourceBergen Corp. v. Dialysist West , I nc., 465 F.3d 946, 950 ( 9t h Cir. 2006) . Thus, it falls on Reser’s t o dem onst rat e t here is a genuine issue of m at erial fact t hat m ight affect t he out com e of a t rial on it s defense of set off. As not ed above, Reser’s effort s rely principally on CFO Leavy’s affidavit which offers no m ore t han conclusions based exclusively on t he t im ing of invoice # 133505. Evidence of t im ing alone is not a significant fact or under all t he circum st ances t o creat e a “ genuine” fact ual disput e over whet her invoice # 133505 is part of t he 2015 Celery Cont ract . First , t he 2015 Celery Cont ract is not draft ed t o cover all loads of celery sold during a period of t im e. I nst ead of encom passing all loads of celery t hat happen t o be delivered over a period of t im e, it specifically addresses only t he 91 cont ract ed loads. 4 4 The 2015 cont ract provides: I t is underst ood and agreed t hat in t he event t he crop or crops of celery being grown and/ or cont ract ed for by t he Seller and from which Seller is t o supply Buyer under t his Agreem ent , hereaft er “ cont ract celery,” does not produce sufficient quant it y of celery t o fulfill t erm s of his writ t en Agreem ent , Seller shall t hen prorat e such supplies as he has available t o him from t he cont ract celery am ong his cont ract 23 Second, t he celery price on invoice # 133505 is m uch higher t han t he price of celery set by t he 2015 Celery Cont ract for t he six loads of celery t o be delivered in Novem ber. Third, t he purchase order # 838903 associat ed wit h invoice # 133505 bears handwrit t en t erm s indicat ing t he price was a separat e arrangem ent based on t he open m arket . Fourt h, t he 2015 Celery Cont ract does not obligat e t he sale and delivery of celery loads beyond t he 91 called for in t he cont ract , and it does not have t erm s t hat address t he delivery, origin, or price of addit ional loads of celery beyond t he 91 cont ract ed. The m ere fact t hat t he invoice # 133505 was negot iat ed and perform ed during t he life of t he 2015 Celery Cont ract does not m ake it a part of t he sam e cont ract . See Cliffst ar Corp. v. Riverbend Product s, I nc., 750 F. Supp. 81, 89 ( W.D.N.Y. 1990) . As t he official UCC com m ent t o Ark. Code Ann. § 4- 2- 717 st at es, t he set off provision is not applicable unless t he breach involves t he “ sam e cont ract under which t he price in quest ion is claim ed t o have been earned.” This is t he not case here. From t hese circum st ances alone, t he court can find no genuine fact ual disput e t hat invoice # 133505 is a separat e cont ract of purchase for cust om ers and Buyer shall receive his pro rat a share t hereof, which will fully discharge Seller’s obligat ion under t his agreem ent . ECF# 76- 8, p. 3. Thus, t he celery t o be supplied under t he 2015 Celery Cont ract is t he “ cont ract celery” described as one of t he 91 t ruckloads of U.S. # 1 celery t o be delivered during t he shipm ent period and subj ect t o t he price specified in t he at t ached 2015 Celery Cont ract Schedule det ails per m ont h t he num ber of loads, t he st at e of origin, and t he delivered price. ECF # 76- 8, p. 4. 24 an addit ional load of celery based on a separat ely arranged price and acquired on t he open m arket . All of t hese circum st ances are evident from t he docum ent s originally subm it t ed in support of Schm ieding’s sum m ary j udgm ent m ot ion. The affidavit of Schm ieding’s sales m anager, Gary Owens, explains away any possible significance in t he t im ing of invoice # 133505. Reser’s has chosen not t o cont est Owens’ explanat ion. For all t hese reasons, t he court concludes t hat Reser’s has not com e forward wit h a genuine issue of m at erial fact on it s set off defense as t o avoid sum m ary j udgm ent for it s liabilit y under PACA and breach of cont ract in failing t o pay Schm ieding for t he loads of celery delivered under t he 2015 Celery Cont ract . Of course, t his holding does not preclude Reser’s from going forward wit h it s set off defense against it s debt under t he separat e cont ract in invoice # 133505. D AM AGES, I N TEREST AN D ATTORN EYS’ FEES Schm ieding m oves for sum m ary j udgm ent on t he principal am ount of $276,862.39, plus accrued int erest at t he rat e of 18% per annum t hrough May 16, 2017, ( t he dat e of it s m ot ion) , and cont inuing t hereaft er unt il paid in full, plus at t orney’s fees in t he am ount of $62,149.94 for a final j udgm ent against Reser’s in t he am ount of $408,627.44. ECF# 76, p. 9- 10. Schm ieding set s fort h t he dam age, int erest and fee t ot als in it s st at em ent of uncont rovert ed fact s and support s t hem wit h invoices, schedules, at t orney fee st at em ent s, and t he declarat ion of Gregory Brown. I d. at pp. 9- 10, ¶ 16. I n saying it cont rovert s t his st at em ent of fact , Reser’s denies it s liabilit y 25 because of it s losses from invoice # 133505, but it does not cont rovert any of t he t ot als as calculat ed and adm it s, “ t he only way Schm ieding would be ent it led t o int erest and at t orney fees from Reser’s would be if it is det erm ined t hat Reser’s is obligat ed t o pay t he am ount [ of] Schm ieding claim s.” ECF# 87, p. 7, ¶ 16. Schm ieding’s dam age ( invoice am ount s) , int erest and fee t ot als are calculat ed in it s Exhibit M, ( ECF# 76- 13, p.2) . This exhibit , however, includes invoice # 133505 in t he am ount due and int erest ed owed. Because Reser’s has avoided sum m ary j udgm ent on it s set off defense against it s debt for t he separat e cont ract of invoice # 133505, t he court cannot m ake a final det erm inat ion for an award of dam ages, int erest and at t orney’s fees. The court does hereby find t hat Reser’s has failed t o cont rovert t he invoice am ount s and t he int erest due on t hose am ount s for t he 24 loads under t he 2015 Celery Cont ract and has failed t o cont rovert Schm ieding’s reasonable at t orneys’ fees t o dat e. I T I S THEREFORE ORDERED t hat Schm ieding’s m ot ion for sum m ary j udgm ent ( ECF# 75) is grant ed insofar as it is det erm ined as a m at t er of law t hat Reser’s m ay not set off under § 2- 717 any of it s losses relat ed t o invoice # 133505 against it s liabilit y for t he 24 loads under t he 2015 Celery Cont ract and t hat Reser’s is liable for t he invoice am ount s, int erest and fee t ot als as calculat ed in Exhibit M for t hese 24 loads, but 26 Schm ieding’s m ot ion is denied insofar as Reser’s use of t he set off against it s liabilit y for invoice # 133505. Dat ed t his 15t h day of Sept em ber, 2017 at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 27

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