United States District Court, District of Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Before the Court is Defendant/Counterclaim-Plaintiff Avnet, Inc.'s Motion for Summary Judgment (ECF No. 29) on its counterclaim seeking payment for goods delivered and accepted by Plaintiff/Counterclaim-Defendant GoGoCast, Inc. Because Avnet's counterclaim is all that remains, this motion seeks to bring this action to an end. No objection has been filed. This motion has been referred to me for report and recommendation. For the reasons that follow, I recommend that the motion be granted.
Avnet is a reseller of monitors and media players and also installs customers' software on purchased media players to facilitate the display of digital advertisements; the software installation is sometimes referred to as "imaging." SUF ¶¶ 2-3. GoGoCast sells digital advertising primarily for use in convenience stores and buys monitors and media players to display the digital advertising. SUF ¶1. Avnet's counterclaims arise out of GoGoCast's agreement with Avnet to purchase monitors, media players, imaging and the hardware needed for installation in August and September 2011, for a total of $255, 063. ECF No. 8, at 9 ¶8; SUF ¶4-5, 7-8. In compliance with the requirements of GoGoCast's orders, Avnet delivered the monitors, imaged media players and installation hardware, in some instances directly to the installation location in accordance with GoGoCast's instructions. SUF ¶9.
After items were shipped, Avnet sought payment from GoGoCast, issuing 152 invoices, apparently one for each display kit shipped, between August 15, 2011 and September 27, 2011. SUF ¶¶ 10, 16. The Commercial Terms and Conditions of Sale ("Avnet's T&C") found on the second page of each invoice, as well as on Avnet's quotations, packing slips and website, SUF ¶11, provides that payment on the invoice "is due 30 days from the invoice date." SUF ¶13. In the event of late payment, "Avnet may charge interest from the payment due date to the date of payment (at VA % per month), plus reasonable attorney fees and collection costs." SUF ¶14. Avnet's T&C also requires the application of Arizona law. SUF ¶ 15.
In accordance with the applicable provisions of Avnet's T&C, which requires all returns "within 10 days after delivery, " GoGoCast accepted all of the delivered items and did not make any timely returns. SUF ¶¶ 12, 16. As of the filing of Avnet's Motion for Summary Judgment, Avnet had not yet received payment. SUF ¶ 19. GoGoCast's outstanding balance owed to Avnet is $255, 063, plus interest (which Avnet represents totals $130, 491.25 as of January 13, 2014), attorney's fees and costs. SUF ¶ 19.
II. PROCEDURAL BACKGROUND
This litigation was initiated by GoGoCast’s complaint against Avnet, LG Electronics U.S.A., Inc., and LG Electronics, Inc. (collectively, “LG”) asserting claims based on products manufactured by LG and resold by Avnet. On September 14, 2012, Avnet answered with a counterclaim asserting that GoGoCast had failed to pay $255, 063 for goods delivered by Avnet and accepted by GoGoCast, which are different from the goods that were the subject of GoGoCast’s complaint: “The Goods are separate and apart from the ‘Equipment’ or other products referenced by GoGoCast in its Complaint.” ECF No. 8, at 8 ¶ 5. GoGoCast answered the counterclaim, denying Avnet’s averments and alleging, inter alia, as affirmative defenses that the invoices had been paid and that Avnet’s breach of express and implied warranties should either bar or diminish its ability to collect. On October 8, 2013, after the close of fact discovery, all of GoGoCast’s claims against both LG and Avnet were dismissed with prejudice. ECF No. 19. As a result, all that remains in the case is Avnet’s counterclaim against GoGoCast for payment.
On February 27, 2014, GoGoCast’s attorney filed an emergency motion for leave to withdraw as counsel. This Court provisionally granted the motion to withdraw on February 27, 2014, contingent on the withdrawing attorney providing GoGoCast additional time to arrange for substitute counsel, and contingent on notice being provided to GoGoCast of the risk of failing to engage counsel, including the risk of default and the consequences of failing to object to this motion for summary judgment. ECF No. 39. On April 1, 2014, the motion to withdraw was granted. Since, no attorney has entered the case on behalf of GoGoCast. GoGoCast has not responded to this motion for summary judgment.
III. LAW AND ANALYSIS
A. Summary Judgment Standard
Under Fed.R.Civ.P. 56, summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is “no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009); Commercial Union Ins. Co. v. Pesante, 459 F.3d 34, 37 (1st Cir. 2006) (quoting Fed.R.Civ.P. 56(c)). A fact is material only if it possesses the capacity to sway the outcome of the litigation; a dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). In ruling on a motion for summary judgment, the court must examine the record evidence “in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party.” Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000) (citing Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir. 1996)). The evidence must be in a form that permits the court to conclude that it will be admissible at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
When the non-moving party does not file a response to the motion for summary judgment or present a statement of disputed facts, the court may deem all properly-supported material facts in the moving party’s statement of undisputed facts admitted. See Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (“failure to present a statement of disputed facts, embroidered with specific citations to the record, justifies the court’s deeming the fact presented in the movant’s statement of undisputed facts admitted”); Nagle v. Warden, Civil No. 08-cv-413-JL, 2009 WL 5216865, at *1 (D.N.H. Dec. 30, 2009) (“Where . . . the non-moving party files no response to the summary judgment motion, [a]ll properly supported material facts in the moving party’s factual statement shall be deemed admitted, since they were not properly opposed.”) (internal quotation marks and citations omitted). However, summary judgment does not automatically follow from the lack of a response. Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st Cir. 2003). The court still must test the viability of the motion to determine if it meets the summary judgment standard. Nagle, 2009 WL 5216865, at *1; see Fed.R.Civ.P. 56(e) (“If a party ...