United States District Court, W.D. Louisiana, Lafayette Division
MEMORANDUM RULING AND ORDER
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant, ABABY, Inc.'s
(“Ababy”), Motion For Summary Judgment [Rec. Doc.
79] and Motion For Summary Judgment On Counter Claim [Rec.
Doc. 80], as well as Plaintiff, Three Peas In A Pod,
LLC's (“Three Peas”), Opposition Memoranda
thereto [Rec. Doc. 82; 83]. For the reasons that follow,
Ababy's Motions For Summary Judgment will be denied.
Three Peas, filed this action for Breach of Contract,
Declaratory Judgment, Damages and Petition on Open Account in
the Fifteenth Judicial District Court, Lafayette Parish,
Louisiana against Defendant, Ababy and several other now
terminated defendants. R. 1-1. On August 27, 2015,
Ababy removed this action pursuant to the Court's
diversity jurisdiction. On December 18, 2015, Ababy filed a
Counterclaim against Three Peas asserting claims for Breach
of Contract and Damages. R. 28.
Parrish is the principal of Three Peas. Three Peas
customizes and personalizes designs on multiple products,
including bedding sets, fleece blankets, pillows, towels and
shower curtains, all of which products Three Peas purchases
from wholesalers. R. 79-3, p. 7, 9. Three Peas
production of its products are typically accomplished through
outside printers. Id. at p. 9. Three Peas advertises
and sells its services online through internet sites such as
Etsy and Zulily. Id. at p. 8. Prior to the
transaction at issue, Three Peas had done business with
Ababy, when Ababy's other vendors could not fulfill
Ababy's orders. Id. at p. 20. This prior
business relationship, consisting of between 50 and 100
orders, led to the bulk order transaction at issue. Id.
at p. 20-21.
November 13, 2014, Ababy placed an order by email for 13, 020
30x40 fleece blankets and 5, 910 70x70 shower curtains each
customized and personalized with certain patterns, names,
text or designs. R. 82-13 (Exh. M). At the time the
order was placed, Three Peas informed Ababy that its printer
could only produce 1, 020 shower curtains. Ababy agreed to
that order and Three Peas designed, had manufactured and
shipped 1, 020 shower curtains. Ababy paid $48, 960.00 for
the order. R. 82-17 (Exh. R) .
Three Peas located another printer that could produce the
remaining 4, 890 shower curtains and the 13, 020 fleece
blankets in accordance with the original bulk order placed by
Ababy. Both parties agreed to move forward with the remainder
of the bulk order. R. 82-12 (Exh. L); R. 79-3 (Exh. A),
p. 30 - 31. The entire bulk order was for the amount of
$500, 130.00, including the $48, 960 paid by Ababy for the
original 1, 020 shower curtains. R. 79-3, pp. 27-28.
December 23, 2014, Ababy cancelled the remainder of the
order. In total, Three Peas sent $307, 260 in merchandise and
Ababy paid $307, 710 through its PayPal account. Ababy
initiated a “chargeback” on its credit card
through PayPal which caused Three Peas' PayPal account to
reflect a negative balance of over $70, 000.
Peas filed this action in the Fifteenth Judicial District
Court, Lafayette Parish, and it was removed to this Court by
Ababy on August 27, 2015. R. 1. Three Peas asserts
claims against Ababy for breach of contract, declaratory
judgment, damages, and petition on open account.
December 19, 2014, Amazon.com cancelled all purchase orders
for goods it had with Ababy. Ababy contends it intended to
re-sell the goods it ordered and received from Three Peas on
Amazon.com. Ababy further contends it sustained a total of
$765, 576 in lost revenue and $393, 120 in lost profits as a
result of the cancellation.
Summary Judgment Standard
of summary judgment is appropriate where “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A dispute is said to be
“genuine” only where a “reasonable jury
could return a verdict for the non-moving party.”
Dizer v. Dolgencorp, Inc., 2012 WL 626201, *6 (W.D.
La. Jan. 12, 2012) (citing Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006)). “Rule
56[ (a) ] mandates the entry of summary judgment ... against
a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Webber v. Christus Schumpert Health
Sys., 2011 WL 3880398, *5 (W.D. La. Sept. 2, 2011)
(quoting Patrick v. Ridge, 394 F.3d 311, 315 (5th
ruling upon a motion for summary judgment, the district court
shall draw all inferences in a light most favorable to the
nonmoving party. Id. at *3 n. 1 (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)). However, the court will not, in
the absence of proof, “assume that the nonmoving party
could or would prove the necessary facts.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
“The non-movant cannot preclude summary judgment by
raising 'some metaphysical doubt as to the material
facts, conclusory allegations, unsubstantiated assertions, or
by only a scintilla of the evidence.”' Cormier
v. W&T Offshore, Inc., 2013 WL 1567406, *7 (W.D. La.
Apr. 12, 2013) (citing Little, 37 F.3d at 1075).