Nutrition 101 further asserts that Southwest Whey raises issues
of fact which relate only to the accounting prior to the
dissolution of the joint venture. It contends that those issues
have nothing to do with Count IV of the counterclaim which is at
issue in this motion. Rather, the Buck report and this motion
involve issues regarding the winding up. Nutrition 101 argues
that Southwest Whey failed to address that portion of Buck's
report that deals with an accounting since dissolution. This
includes the proceeds each party received from the joint venture
assets between 1993-2000 totaling $593,523.00. It also includes a
division of the joint venture assets as of 2000 totaling
$324,277.00. Therefore, Nutrition 101 contends that Southwest
Whey's response which addresses an accounting during the joint
venture does not create an issue of fact.
Nutrition 101 next alleges that the third item that is the
basis of the summary judgment motion, the Raskas proceeds, is
attacked only as to deduction of attorney's fees and expenses.
Because Nutrition 101 also incurred such fees and expenses, it
contends that this has no bearing on the motion. Therefore, it
maintains that it is entitled to one half of the settlement
proceeds. This would total $225,000.00.
Thus, Nutrition 101 contends that it is entitled to summary
judgment on Count IV of its counterclaim in the amount of
II. STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith 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." See Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). In conducting this inquiry, the evidence
of the non-movant is to be believed, and "all justifiable
inferences drawn in his favor." See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). The moving party has the burden of producing
documentary evidence to show the absence of a genuine issue of
material fact. A genuine issue of material fact exists when
"there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party." See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
In determining whether a genuine issue of material fact exists,
the court must consider the evidence in the light most favorable
to the nonmoving party. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving
party has met its burden, the opposing party must come forward
with specific evidence, not mere allegations or denials of the
pleadings, which demonstrates that there is a genuine issue for
trial. See Howland v. Kilquist, 833 F.2d 639 (7th Cir. 1987).
The basis of Nutrition 101's summary judgment motion is that
part of Buck's report was not answered by Southwest Whey within
the time allotted. Thus, while there may be issues regarding the
outcome of an accounting prior to dissolution, there are no
issues of material fact as to Buck's report on what a winding up
of the joint venture would yield.
Federal Rule of Civil Procedure 26 governs the disclosure of
These disclosures shall be made at the times and in
the sequence directed by the court. In the absence of
other directions from the court or stipulation by the
parties, the disclosures shall be made at least 90
days before the trial date or the date the case is to
be ready for trial or, if the evidence is intended
solely to contradict or rebut evidence on the same
subject matter identified by another party under
within 30 days after the disclosure made by the other