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AGROINDUSTRIA NACIONAL, S.A. v. HENRY BROCH & CO.

September 8, 1997

AGROINDUSTRIA NACIONAL, S.A., Plaintiff,
v.
HENRY BROCH & COMPANY, Defendant.



The opinion of the court was delivered by: SHADUR

 Agroindustria Nacional, S.A. ("Agrona") initially sued Henry Broch & Company ("Broch") in a simple goods sold and delivered Complaint, invoking federal jurisdiction on diversity of citizenship grounds and seeking judgment for $ 114,799.68 for apple juice concentrate sold by Agrona--purportedly to Broch. *fn1" Broch has responded with a Rule 56 motion for summary judgment, and the parties have submitted their memoranda, their affidavits intended to comply with Rule 56(e) and their statements intended to conform to the requirements of this District Court's General Rule ("GR") 12(M) and 12(N).

 It became all too clear with Broch's response, which showed that it was not itself the buyer of the unpaid-for goods but was rather a broker--the agent for a disclosed principal--that Agrona could not stick with the assertions in its Complaint. Nothing daunted, Agrona then proceeded to alter its stance in its Rule 56 and GR 12(N) submissions. In light of that shift in Agrona's position, Broch's motion must be and is denied in the current posture of the case.

  Rule 56 motions are not a vehicle for the resolution of credibility issues ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) ("it is clear enough from our recent cases that at the summary judgment stage the judge's function is not himself to weigh the evidence but to determine whether there is a genuine issue for trial"). At the same time there is some limited room under Rule 56 for the weighing of evidence, as Anderson, id. at 250-52 (citations omitted) has itself pointed out in equating the summary judgment standard with that under Rule 50(a):

 
Petitioners suggest, and we agree, that this standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed.
 
* * *
 
The Court has said that summary judgment should be granted where the evidence is such that it "would require a directed verdict for the moving party." And we have noted that the "genuine issue" summary judgment standard is "very close" to the "reasonable jury" directed verdict standard: "The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted." In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

 But the thing that saves Agrona at this stage of the proceedings is the requirement that in applying that concept for Rule 56 purposes the evidence must be looked at through a lens that (even though perhaps against the viewer's better judgment) is focused substantially in Agrona's favor. As the Rule 56 case law frequently puts it, and St. Louis N. Joint Venture v. P&L Enters., Inc., 116 F.3d 262, 265 n.2 (7th Cir. 1997)(citation omitted) is only exemplary of that principle:

 
Although the non-movant is entitled on a motion for summary judgment to have all reasonable inferences drawn in its favor, the court is not required to draw unreasonable inferences from the evidence.

 So it is here. Agrona gets the benefit of all arguably reasonable favorable inferences, even though the malodorousness of a number of things that have been said by its affiants is obvious. Just one critical example bears separate mention.

 Although the key issue here is of course the nature of the transaction in suit, both litigants have addressed some prior transactions between the parties as bearing on whether Broch itself was or was not the purchaser in this instance. In that respect Agrona's President Christobal Valdes Saenz ("Valdes") says in part (Aff. PP7, 9):

 
7. From time to time, Agrona has sold food product to Henry Broch & Company ("Henry Broch"), said sales arranged and facilitated by James H. McGaveston of Food Trade International S.A.
 
9. Agrona had sold food products to Henry Broch on prior occasions and had received payment directly from Henry Broch on prior occasions.

 And to support that assertion, Valdes' Affidavit attaches Exs. A through D, each of them a photocopy of an Agrona "commercial invoice" that it had issued in connection with the shipment of one ...


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