United States District Court, N.D. Mississippi, Delta Division
S. ALLAN ALEXANDER, Magistrate Judge.
Plaintiff Highlander Rx, Inc. ("Highlander") has moved for summary judgment on the sole issue of attorney's fees and prejudgment interest. Docket 30, 31. The parties have consented to have a United States Magistrate Judge conduct all proceedings in this case as provided by 28 U.S.C. § 636(c) and FED. R. CIV. P. 73. After reviewing the Motion, Response (Docket and Reply, the attached exhibits and briefs, and the supporting and opposing authority, the court finds the Motion for Summary Judgment filed by plaintiff should be DENIED and instead concludes that the case should be DISMISSED.
I. Factual and Procedural History
First Pharmacy Services of Tennessee, LLC and Denise Pratt, Individually, d/b/a First Pharmacy Services of Tennessee, LLC ("defendants") ordered and purchased pharmaceuticals in the amount of $248, 979.45 from Highlander on an open account between November 16, 2012 and December 13, 2012. Docket 1, p. 2; Docket 32, p.1. After receiving the pharmaceuticals, defendants made two payments to Highlander totaling $160, 000: one for $80, 000 dated December 4, 2012, and another for the same amount dated January 2, 2013. Docket 1, Ex. D; Docket 32, p. 1. On February 20, 2013, Highlander sent defendants a letter demanding payment for the unpaid principal balance of $89, 516.30. Docket 1, Ex. E. Highlander forwarded a second letter to defendants on February 21, 2013, restating their intent to file a collection suit if defendants failed to resolve the account issue by February 25, 2013. Id. Highlander received no further payments after January 2013, and on June 6, 2013, Highlander's attorney sent a third and final letter demanding full satisfaction of the outstanding balance of $89, 516.30, again threatening legal action if defendants continued not to pay. Docket 39, Ex. A. On July 1, 2013, defendants made a payment of $10, 000, but made no further payments. Docket 1, p. 21. As a result, Highlander filed suit on November 11, 2013, to recover actual damages in the principal amount of $78, 979.45, together with interest, costs, attorney's fees and expenses. Docket 1, p. 4. Immediately after suit was filed, defendants made a $10, 000 payment, leaving a remaining principal balance of $68, 979.45. Docket 31, p. 3. The parties exchanged several communications regarding an out-of-court settlement, but were unable to reach an agreement on the subject of interest and attorney's fees. Plaintiff filed the motion for summary judgment May 13, 2014, and defendants paid the account in full three days later, May 16, 2014. Docket 35-1, p.4.
II. Standard of Review
A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant makes such a showing, the burden then shifts to the nonmovant to "go beyond the pleadings and by... affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting FED. R. CIV. P. 56(c), (e)). Before finding that no genuine issue for trial exists, the court must first be satisfied that no rational trier of fact could find for the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"[T]he issue of fact must be genuine.' When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586; see also Kovacic v. Villarreal, 628 F.3d 209 (5th Cir. 2010). "Conclusory statements, speculation, and unsubstantiated assertions cannot defeat a motion for summary judgment." RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010). Where a party opposes summary judgment on a claim or defense on which that party will bear the burden of proof at trial, and when the moving party can show a complete failure of proof on an essential element of the claim or defense, then all other issues become immaterial, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Further, self-serving "affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary judgment." Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997); see also Jackson v. Cal-Western Packaging Corp., 602 F.3d 374 (5th Cir. 2010).
The court must render summary judgment in favor of the moving party if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000). The Supreme Court has cautioned, however, that the ruling court must not encroach upon the functions of the jury. As the Court stated in Reeves,
... the court must review all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party, but making no credibility determinations or weighing any evidence. The latter functions, along with the drawing of legitimate inferences from the facts, are for the jury, not the court. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.
Id. (citations omitted). In the end, "[s]ummary judgment, although a useful device, must be employed cautiously because it is a final adjudication on the merits." Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989).
It is undisputed that defendants ordered and purchased pharmaceutical products from plaintiff on an open account basis between November 16, 2012 and December 13, 2013, that plaintiff sold and delivered the products to defendants and that, shortly thereafter, defendants became delinquent in paying the principal account balance. Where the parties do disagree is on the question of whether plaintiff is entitled to interest and attorney fees incurred as a result of this claim where, as here, defendants have satisfied the principal obligation before entry of a final judgment.
The award of attorney's fees in a suit on an open account is controlled by Mississippi Code Annotated § 11-53-81 which dictates:
When any person fails to pay an open account within thirty (30) days after receipt of written demand therefor correctly setting forth the amount owed and an itemized statement of the account in support thereof, that person shall be liable for reasonable attorney's fees to be set by the judge for the prosecution and collection ...