or downgraded the business practices of Southwest Whey. Lentz did
not recall specifically why he stopped doing business with
Southwest Whey in the fall of 1993. He speculated that it was
likely because he could get a similar product at a cheaper price
from another dairy. Thus, it was not related to any interference
on the part of Nutrition 101. Southwest Whey next contends that
Nutrition 101 attempted to interfere with Southwest Whey's
relationship with the truckers hauling their whey. They allege
that Nutrition 101 followed trucks delivering whey from the
dairies to their destinations on two different occasions. Randy
Peter indicated that in early 1994, he followed a whey truck
because he was concerned about where the whey was going and how
it was handled. Although this behavior is somewhat peculiar
because the joint venture had ended, there is no indication that
Peter harassed the truckers or interfered in their business in
Southwest Whey states that it is proper to infer that Nutrition
101 used similar tactics on other dairies, truckers, and hog
producers following the termination of the joint venture.
Southwest Whey has made numerous allegations that Nutrition 101
sought out customers of the joint venture following its
termination and attempted to interfere with their business
relationship. However, Nutrition 101 has refuted these
allegations in each instance. In some instances, the customer
indicated that Nutrition 101 did nothing to interfere with the
business relationship. In other instances, the customer of the
joint venture is still doing business with Southwest Whey or did
for some time after the allegedly improper conduct. In those
situations, no damages therefore resulted from any interference.
In order to prevail on a claim of tortious interference with
prospective advantage, damages must be shown. See Fellhauer,
142 Ill.2d at 511, 154 Ill.Dec. 649, 568 N.E.2d 870.
In their response, Southwest Whey seems to also rely on the
tort of interference with contractual relations. However, as
Nutrition 101 notes, a necessary element of that tort is that a
defendant intentionally induce a breach of contract without
privilege to do so. See Galinski v. Kessler, 134 Ill. App.3d 602,
610, 480 N.E.2d 1176, 89 Ill.Dec. 433 (1st Dist. 1985).
Because there has been no breach of any contract with Southwest
Whey, they cannot support a claim under this theory.
Southwest Whey seems to suggest that this Court should infer
that Nutrition 101 used illegal tactics in interfering with their
business relationships. However, with the exception of one
instance, Nutrition 101 responded to each of the business
practices which allegedly supported a claim for interference with
prospective advantage. Southwest Whey has failed to come forward
with any evidence that would create an issue of fact regarding
these practices. The one instance in which Nutrition 101 did not
respond involved the deposition testimony of Homer Carl. His
testimony indicated that Nutrition 101 came to him and suggested
that he stop buying whey from Southwest Whey. This would have
resulted in Southwest Whey's loss of a dairy contract. However,
Homer Carl continued to obtain his whey from Southwest Whey.
Therefore, no damages resulted from these alleged tactics.
Southwest Whey is basically asking the Court to infer from that
one instance that Nutrition 101 interfered with their prospective
advantage at other times. However, the only evidence that they
have put forth essentially is the deposition testimony of Muse.
Nutrition 101 has come forward in each instance with evidence
that they did not interfere with Southwest Whey's prospective
advantage. When the moving party has met its burden, the opposing
party must come forward with specific evidence which demonstrates
that there is a genuine issue for trial. See Howland, 833 F.2d
at 639. This Court must merely draw all reasonable inferences
based on the evidence in Southwest Whey's favor and not all
conceivable inferences. See Bank Leumi Le-Israel, B.M.
v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). A scintilla of
evidence in favor of the non-movant is not sufficient. See
Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991).
Therefore, when taking all of the evidence in the light most
favorable to Southwest Whey, the Court finds that there are no
genuine issues of material fact to be determined and that
Nutrition 101 is entitled to judgment as a matter of law.
Ergo, Nutrition 101's Motion for Summary Judgment as to
Counts VIII, III, IV, and II is ALLOWED. Pursuant to Federal Rule
of Civil Procedure 15(a), the Court grants Southwest Whey seven
(7) days leave to amend Count I of its First Amended Complaint.
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