Rayle Tech, Inc. v. DEKALB Swine Breeders, Inc., Civ. A. No. CV194-072.

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Writing for the CourtBOWEN
Citation897 F. Supp. 1472
PartiesRAYLE TECH, INC., d/b/a Callaway Farms, Inc., Plaintiff, v. DEKALB SWINE BREEDERS, INC., Defendant.
Docket NumberCiv. A. No. CV194-072.
Decision Date06 July 1995

897 F. Supp. 1472

RAYLE TECH, INC., d/b/a Callaway Farms, Inc., Plaintiff,

Civ. A. No. CV194-072.

United States District Court, S.D. Georgia, Augusta Division.

July 6, 1995.

897 F. Supp. 1473

David E. Hudson, Hull, Towill, Norman & Barrett, Augusta, GA, for Rayle Tech, Inc.

Thomas William Tucker, Dye, Tucker, Everitt, Wheale & Long, Augusta, GA, Charles T. Patterson, Eidsmoe, Heidman, Redmond, Fredregill, Patterson & Schat, Sioux City, IA, for DeKalb Swine Breeders, Inc.


BOWEN, District Judge.

Before the Court in the above-captioned case is Defendant DEKALB Swine Breeders, Inc.'s Motion for Summary Judgment (Mar. 17, 1995). For the reasons discussed below, DEKALB's Motion is GRANTED.

I. Factual Background1

At all times relevant to this dispute, Plaintiff, Rayle Tech, Inc., d/b/a Callaway Farms, Inc. ("Callaway"), maintained a rather large swine breeding herd in Wilkes County, Georgia. Callaway's herd contained approximately 5000 sows. Defendant DEKALB Swine Breeders, Inc. ("DEKALB") is in the business of raising and selling swine breeding stock.

Callaway, which regularly introduces new breeding stock into its herd, began purchasing boars and sows from DEKALB in 1989. From 1989 through 1994, the parties executed numerous written contracts documenting Callaway's purchase of breeding stock from DEKALB. Each contract states that "this contract shall be governed by the laws of the State of Illinois." (Stip., Exhibit A, ¶ 7.)

The contracts in question, attached to the parties' Stipulation of Facts as Exhibits A, B, C, D, E and F, contain limited fertility warranties but disclaim liability in connection with disease. The contracts state in blocked, bold letters: "DEKALB cannot and does not guarantee the absence of any pathogens or disease in the breeding stock sold by DEKALB. Pathogens or diseases may be present at the time of sale or may appear later." (Stip., Exhibit A, ¶ 10.) The contracts further provide that replacement of the swine is the buyer's sole and exclusive remedy.

897 F. Supp. 1474

Each contract contains the following merger provision: "this Contract supersedes all prior written or oral agreements related to the swine sold hereunder, and this contract cannot be amended except in a writing which refers to this Contract and which is signed by both parties." The contracts also provide a blank for the purchaser to state any promises or representations made by the seller not otherwise specified in the contract; in five of the six contracts, Eugene Callaway, Jr., an officer of Callaway, wrote "none" in the blank.

Porcine Reproductive and Respiratory Syndrome (PRRS) is a serious viral pig disease. In sows, PRRS may cause abortions, stillborns, and birth of underweight and defective pigs. PRRS is highly contagious. It can be contracted from infected animals introduced into the herd and from semen of boars used for breeding. At the time they executed the contracts of sale at issue here, the parties had not discussed PRRS.

In the last half of 1992 and the first part of 1993, DEKALB knew that its herds had either been infected with or exposed to PRRS.2

Callaway's herds tested negative for PRRS in March 1993. To protect its herds, Callaway decided not to purchase breeding animals which had been exposed to PRRS. In late 1992 and early 1993, Callaway considered changing from DEKALB to a different supplier of genetic breeding stock but declined to do so when it learned that the other supplier, Pig Improvement Company, had tested positive for PRRS in its farms. In the latter part of 1992, Callaway explained to DEKALB's sales personnel that Callaway wanted to avoid PRRS and that it was reluctant to change suppliers because DEKALB's herds were PRRS free and Pig Improvement's were not. A DEKALB salesman (Clinton Day) replied: "Well, that is a pretty good reason to stay with us." (Stip., ¶ 2(h).)3

On March 11, 1993, Callaway received nineteen boars and gilts from DEKALB. The animals had no clinical signs of PRRS at the time they were shipped or when they were delivered on March 11, 1993. (Stip., ¶ 2(o).) On April 9, 1993, Callaway's herds broke with the PRRS virus. Callaway alleges that DEKALB's shipment of diseased animals was, under the circumstances, fraudulent. After the delivery of the swine which Callaway alleges infected its herds with PRRS, Callaway continued to accept new deliveries of swine from DEKALB. (Stip., ¶ 2(z).)

Callaway seeks consequential damages in excess of $2,000,000.

II. Analysis

A. Summary Judgment Standard

The Court should grant summary judgment only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The applicable substantive law identifies which facts are material in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

"The movant bears the initial burden to show, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). When the moving party has the burden of proof at trial, that party must carry its burden at summary judgment by presenting evidence affirmatively showing that, "on all the essential elements of its case ..., no reasonable jury could find for the non-moving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc). When the non-moving party has the burden of proof at

897 F. Supp. 1475
trial, the moving party may carry its burden at summary judgment either by presenting evidence negating an essential element of the non-moving party's claim or by pointing to specific portions of the record which demonstrate that the non-moving party cannot meet its burden of proof at trial, see Clark, 929 F.2d at 606-08 (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); merely stating that the non-moving party cannot meet its burden at trial is not sufficient, Clark, 929 F.2d at 608. Any evidence presented by the movant must be viewed in the light most favorable to the non-moving party. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608

If—and only if—the moving party carries the initial burden, then the burden shifts to the non-moving party "to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark, 929 F.2d at 608. The non-moving party cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981), cert. denied, 456 U.S. 1010, 102 S.Ct. 2303, 73 L.Ed.2d 1306 (1982). Rather, the non-moving party must respond by affidavits or as otherwise provided in Fed.R.Civ.P. 56. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. A genuine issue of material fact will be said to exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at 248, 106 S.Ct. at 2510.

The clerk has given the non-moving party notice of the summary judgment motion, the right to file affidavits or other materials in opposition, and of the consequences of default; thus, the notice requirements of Griffith v. Wainwright, 772 F.2d 822 (11th Cir. 1985), are satisfied. The time for filing materials in opposition has expired, and the motion is ripe for consideration. The Court will proceed to review the applicable substantive law and inquire whether the moving party—and, if necessary, the non-moving party—has carried...

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