Pacific Financial Association, Inc. v. Alexander, No. 4:2022cv03919 - Document 11 (S.D. Tex. 2023)
Court Description: MEMORANDUM OPINION AND ORDER - For the reasons stated in § II, Plaintiff's 10 MOTION for Summary Judgment is DENIED WITHOUT PREJUDICE. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Pacific Financial Association, Inc. v. Alexander Doc. 11 United States District Court Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION PACIFIC FINANCIAL ASSOCIATION, INC., Plaintiff, ENTERED February 03, 2023 Nathan Ochsner, Clerk § § § § § v. § § § § § DIEGO ALEXANDER, Defendant. CIVIL ACTION NO. H-22-03919 MEMORANDUM OPINION AND ORDER or " Plaintiff, Pacific Financial Association, Inc., fie"), brings this action against (" Plaintiff" Defendant, Diego Alexander ("Defendant" or "Alexander n), for breach of contract.1 Pending before the court is Plaintiff's Motion for Summary Judgment (Docket Entry No. 10}. For the reasons explained below, pending motion will be denied without I. the judice. Factual A1legations and Procedural Background Plaintiff alleges that on October 30, 2013, it entered into a Form BMC-85 Broker's or Freight Forwarder's Trust Fund Agreement under 49 U.S.C. § 13906 with Defendant, 2 and that on February 28, 2017, Defendant executed a Supplementary Agreement pursuant to Complaint, Docket Entry No. 1, p. 4 14. Page numbers for docket entries in the record refer to the pagination inserted at the top of the page by the court's electronic filing system, CM/ECF. 1 Complaint, Docket Entry No. 1, p. 2 1 6 (citing Exhibit A, Form BMC-85, Docket Entry No. 1-1}. 2 Dockets.Justia.com which Defendant became obligated to repay Plaintiff monies spent or paid by Plaintiff pursuant to the Agreement. 3 Plaintiff alleges that "[p] ursuant to the terms of the Agreements, Plaintiff, on behalf of Defendant, paid out the sum of $75,000.00," 4 and that "[p]ursuant to the Agreements, Defendant is required to reimburse the Plaintiff for the claims paid." 5 Plaintiff alleges that the terms on page 4, section 6.01, paragraph 3 of the Supplementary Agreement . . . also require[] Defendant to pay Plaintiff's costs and fees of collection, interest, as well as a reasonable and necessary attorney's fees." 6 Plaintiff alleges that it has "demanded that Defendant cure his breach of the Agreements and pay Pacific Financial, but Defendant failed to do so.7 Plainti seeks inter alia Judgment against Defendant in the principal amount of $53,476.09, with judgment interest of $9,388.95 and accruing as allowed by law, collection fees of $15,000.00, plus attorney's fees as provided in the Agreement and under Texas law, including fees in the event of success on appeal whether as appellant or as appellee, plus post-judgment interest at the legal rate, and all costs of court.8 ':II 7 (citing Exhibit B, Supplementary Agreement, Docket Entry No. 1-2) 3 ':II 8 (citing Exhibit C, Payout Calculation, Docket Entry No. 1-3; Exhibit Cl, C ims, Docket Entry No. 1-4; and Exhibits Dl D64, Docket Entry Nos. 1-5 through 1-68). 5 6 at 3 <JI <JI 9. 10. <JI 11 (citing Exhibit E, Demand Letter dated August 23, 2019, Docket Entry No. 1-69). 7 8 Complaint, Docket Entry No. 1, p. 5 -2- <JI 17. II. Plaintiff's Motion for Summary Judgment Relying on Federal Rule of Civil Procedure 56, the pending motion for summary judgment seeks the entry of summary judgment against Defendant Diego Alexander, in the principal amount of $53,476.09, plus prejudgment interest of $7,634.76 as December 28, 2022; plus lection fees in the amount of $15,000.00, plus attorney's fees as provided in the Agreements and under Texas law, including fees in the event of success on appeal whether as appellant or as appellee. Paci c Financial further prays that the Court award Pacific Financial its post judgment interest at the legal rate, and that the Court assess court costs against Defendant Alexander; and that the Court award such other and further relief to which Pacific Financial Association, Inc. may be justly entitled.9 Almost a month has passed s January 4, 2023, when Defendant filed the pending Motion for Summary Judgment (Docket Entry No. 9) , yet Plaintiff has not responded to Defendant's motion. A. Standard of Review Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any mate is ent 56 (a) al fact and the movant led to judgment as a matter of law." If the movant satisfies its Fed. R. Civ. P. ial responsibility of showing "the absence of a genuine issue of material fact," the burden shifts to the non-movant to identi p. 7. "specific facts showing intiff's Motion for Summary Judgment, Docket Entry No. 10, -3- that there is a genuine issue for tr Catrett, 106 S. Ct. 2548, 2553 (1986). 1." Celotex Corp. v. If a non-movant ls to respond to a motion for summary judgment, it is not proper to grant the motion based so Alsobrook v. ly on the failure to respond. GMAC Mortgage, L.L.C., 541 F. App'x 340, 341-42 (5th Cir. 2013) (per curiam) (citing John v. Louisiana (Board of Trustees for State Colleges and Universities), 757 F.2d 698, 709 (5th Cir. 1985}). Instead, summary judgment should only be granted in such a case if "'the moving party discharges its initial burden' of showing that there is no genuine dispute as to any material fact." John, 757 F.2d at 709). Id. (quoting Recognizing that Local Rule 7.4 allows a court to construe a party's failure to respond as a representation of no opposition, the fth Circuit has observed that when the nonmovant fails to respond, the court may properly accept as undisputed the movant's evidence of the facts. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988). See Eversley v. See also White v. Coffield Medical Staff, No. 21-40211, 2022 WL 1056103, * 2 (5th Cir. April 8, 2022) ("Where, as here, a plaintiff does not le an opposition to a defendant's motion for summary judgment, a district court may properly take the facts put forward by defendant in support of his motion for summary judgment to be undisputed."). -4- B. Analysis 1. Applicable Law Plaintiff's Motion for Summary Judgment relies on Texas law, 10 but the Supplementary Agreement, which Plaintiff argues binds Defendant personally, is governed by Arizona law, 11 and states that "[all legal actions or proceedings arising in connection with this Supplementary Agreement and the BMC-85 or addenda referenced or otherwise incorporated herein or supplemented hereby shall be litigated only in state or federal courts located in the County of Maricopa, State of Arizona. " 12 Under Texas law contract action requires proof of four elements: a va d contract; "a breach of (1) formation of (2) performance by the plaintiff; (3) breach by the defendant; and (4) 'the plaintiff sustained damages as a result of the breach. '" S & S Emergency Training Solutions, Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (quoting USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n. 21 (Tex. 2018)). A breach of contract action under Arizona law requires proof of three elements: (1) the existence of a contract; (2) breach; and intiff's Motion for Summary Judgment, Docket Entry No. 10, p. 4 13 (citing Valero Marketing & Supply Co. v. Kalama International, L.L.C., 51 S.W.3d 345, 351 (Tex. App - Houston [1st Dist.] 2001, no pet.), for the elements of a claim for breach of contract). 11 Supplementary Agreement, Exhibit B to Complaint, Docket Entry No. 1-2, p. 6 § 7.04. 12 -5- (3) resulting damages. First American Title Insurance Co. v. Johnson Bank, 372 P.3d 292, 297 (Ariz. 2016) (citing Graham v. Asbury, 540 P.2d 656, 657 (Ariz. 1975)). See also Bright v. Mercer Advisors Inc., (9th Cir. 2013) 502 F. App'x 710, 711 (citing Chartone, Inc. v. Bernini, 83 P.3d 1103, 1111 (Ariz. Ct. App. 2004) (for stating the same three elements for a breach of contract claim under zona law) ). 2. Application of the Law to the Facts Regardless of whether Texas or Arizona law is applied to the Plainti 's breach of contract claim, in order to grant the pending motion for summary judgment the court would have to find that Plaintiff has presented evidence showing that the formation of a valid contract between the parties. Whether there exists a valid contract between Plaintiff and Defendant is at issue. initi contract, i.e., the Form BMC-85 Broker's Both the or Freight Forwarder's Trust Fund Agreement, and the Supplementary Agreement are between Plaintiff and Cargo One Logistics, LLC, not between Plaintiff and the Defendant, Diego Alexander. 13 Although P intiff alleges that Defendant, Diego Alexander, "became obligated to repay at 1 ("This Supplementary Agreement . . . is made by and among the following: Pacific Financial Association, Inc., a California corporation (hereinafter re rred to as "Trustee u ); and, Cargo One Logistics, LLC (hereinafter re rred to as "Trustor u ). . . u); and Form BMC-85, Docket Entry No. 1-1, p. 1 (identifying es). Plaintiff and Cargo One Logistics, LLC as the contracting -6- BMC-85 pursuant to Plaintiff monies spent or paid by Plainti Broker's or Freight Forwarder's Trust Fund Agreement and Section 6.01, paragraph 2 [of the Supplementary Agreement]," 14 Defendant, Diego Alexander signed the BMC-85 form as the Principal icer of Cargo One Logistics, LLC, 15 and signed the Supplementary Agreement as the President of Cargo One Logist , LLC. i 6 While Defendant also signed the Supplementary Agreement as the Indemnifying Party, his signature there is also followed by "as President." 17 In the answer (titled "Complaint") that Defendant filed to Plaintiff's Complaint (Docket Entry No. 7), Defendant denies all allegations that he personally owes any money to Plaintiff, and asserts that the bond at issue should have been discharged during Cargo One Logistics, LLC Bankruptcy proceedings in September 2019, and that he did not rsonally guarantee this bond because he signed the documents "as president" of Cargo One Logistics, LLC. The Defendant also asserts that there was a $10,000 payment to set up the bond that he does not see reflect in the amount he is being sued. 18 14 Complaint, Docket Entry No. 1, p. 2 15 Form BMC-85, Docket Entry No. 1-1, p. 2. 16 Supplementary Agreement, Docket Entry No. 1-2, p. 7. <Jr 7. 17 18 Answer (titled "Complaint"), Docket Entry No. 7. -7- which to the Regardless of whether Texas or Arizona law is appl Plaintiff's breach of contract claim, in order to grant the pending motion for summary judgment, Supplementary Agreement, the court would have to read the particularly Section 6.01 thereof, to unambiguously bind Defendant in his personal capacity, as opposed Cargo to his capacity as the Principal Officer and/or President One Logistics, LLC. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (holding that under Texas law "[i]f the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguo s and the court will construe the contract as a matter of law"); at 394 and ("Whether a contract is ambiguous is a question of law the court to decide by looking at the contract as a whole in ght of the rcumstances present when the contract was entered. 11) Oil Co. {Delaware) v. Madeley, 626 S.W.2d 726, (unambiguous contracts ; and Sun 728 (Tex. 1981) are enforced as written, and "in the ordinary case, the writing alone will be deemed to express the intention of the parties"). See also Grosvenor Holdings, L.C. v. Figueroa, 218 P.3d 1045, 1050 (Ariz. Ct. App. 2009) ("when parties bind themselves by a lawful contract, the terms of which are clear and unambiguous, a court must give effeet to the contract as written"); Greenawalt v. Sun City West Fire District, 23 F. App'x 650, 652 (9th Cir. 2001) ("construction of ambiguous contracts is submitted to a jury under Arizona law"). Because the court is not persuaded Supplementary that Section 6.01 of -8- the Agreement unambiguously binds Defendant in his personal capacity, as opposed to his capacity as the Principal Officer and/or President Cargo One Logistics, LLC, the court is not persuaded that Plaintiff has established that it is ent led to judgment as a matter law on the breach of contract claim asserted against the Defendant. However, because Plaintiff's Motion for Summary Judgment has been filed before discovery has been conducted, Plaintiff's Motion for Summary Judgment will denied without prejudice. III. Conclusions and Order For the reasons stated above in§ II, Plaintiff's Motion for Summary Judgment, Docket Entry No. 10, is DENIED WITHOUT PREJUDICE. SIGNED at Houston, Texas, this 3rd day of February, 2023. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -9-
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