United States District Court, E.D. Louisiana
FINANCIAL PACIFIC LEASING, INC.
VOLTAGE TRAMPOLINE PARKS, LLC, ET AL.
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
the Court is plaintiff's unopposed motion for partial
summary judgment. Because the record before the Court
establishes that plaintiff is entitled to the relief it
seeks, the motion is granted.
case arises out of a financing agreement between plaintiff
Financial Pacific Leasing, Inc. and defendant Voltage
Trampoline Parks, LLC. The following facts are undisputed. They
are based upon an affidavit by plaintiff's Loss Recovery
Specialist, Jessica Bailey, and a copy of the financing
agreement filed into the record. Bailey has certified that
the agreement, and the other documentation plaintiff has
submitted to the Court in connection with its motion, are
true and correct reproductions of the original records
maintained by plaintiff.
to the financing agreement, plaintiff agreed to finance
Voltage's purchase of various pieces of equipment in
exchange for 60 monthly payments of $1, 718.00
each. Defendant Delois Tucker personally
guaranteed the payment and performance of all of
Voltage's obligations under the agreement. The agreement
provides that Voltage would be considered in default if it
failed to timely pay any monthly amount due. In the event of a
default, the agreement permits plaintiff to require Voltage
or its guarantor to immediately pay the entire remaining sum
of unpaid payments. In addition, the agreement provides that
(1) any amounts past due accrue interest at a rate of 1.5%
per month (18% per annum), or the maximum rate allowed under
applicable law; and (2) for each late payment, Voltage
would be charged a late fee equal to the greater of 10% of
the amount due or $10.
financing agreement further provides that Voltage granted
plaintiff a first priority security interest in the equipment
it was to purchase. Plaintiff perfected its security
interest in the equipment after executing the financing
agreement by filing a UCC-1 Financing
Statement.The agreement also requires Voltage to
pay any costs plaintiff may incur enforcing its rights under
the agreement, including its attorneys'
made some payments required by the financing agreement in
October 2017, January 2018, and March 2018. But Voltage
failed to pay the full monthly payments due under the terms
of the agreement for February 2018 and every month
thereafter. On May 16, 2018, plaintiff notified
Voltage and Tucker that because they were in default of the
agreement, plaintiff was exercising its right to demand
immediate payment of the sum of all unpaid
payments. As of October 16, 2018, Voltage-and
Tucker as guarantor-owed a total of $95, 157.74 in unpaid
payments and $7, 020.91 in late charge penalties, plus
pre-judgment interest and plaintiff's costs incurred to
enforce its rights.
now moves for partial summary judgment to enforce its rights
under the agreement against Voltage and Tucker. Voltage and
Tucker did not oppose plaintiff's motion.
judgment is warranted when “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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact
exists, the Court considers “all of the evidence in the
record but refrain[s] from making credibility determinations
or weighing the evidence.” Delta & Pine Land
Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395,
398-99 (5th Cir. 2008). All reasonable inferences are drawn
in favor of the nonmoving party, but “unsupported
allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law' are insufficient
to either support or defeat a motion for summary
judgment.” Galindo v. Precision Am. Corp., 754
F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37
F.3d at 1075. “No genuine dispute of fact exists if the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
dispositive issue is one on which the moving party will bear
the burden of proof at trial, the moving party “must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial.” Int'l Shortstop, Inc. v. Rally's,
Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal
citation omitted). The nonmoving party can then defeat the
motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material
fact, or by “showing that the moving party's
evidence is so sheer that it may not persuade the reasonable
fact-finder to return a verdict in favor of the moving
party.” Id. at 1265.
dispositive issue is one on which the nonmoving party will
bear the burden of proof at trial, the moving party may
satisfy its burden by pointing out that the evidence in the
record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477
U.S. at 325. The burden then shifts to the nonmoving party,
who must, by submitting or referring to evidence, set out
specific facts showing that a genuine issue exists. See
Id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a
genuine issue for trial. See, e.g., id.;
Little, 37 F.3d at 1075 (“Rule 56
mandates the entry of summary judgment, after
adequate time for discovery and upon motion, 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.” (quoting Celotex, 477 U.S. at 322)).
motion for summary judgment cannot be granted simply because
it is unopposed. Calais v. Theriot, 589 Fed.Appx.
310, 311 (5th Cir. 2015). But a court may grant an unopposed
a motion “if the undisputed facts show that the movant
is entitled to judgment as a matter of law.”
Id. Here, the undisputed facts in the record show
that plaintiff and Voltage entered into an agreement whereby
plaintiff would finance Voltage's purchase of certain
equipment. The record further shows that Voltage,
as a debtor, and Tucker, as a guarantor, are in default of
the agreement for their failure to timely make the monthly
payments due. Finally, the record shows that plaintiff
had the right to accelerate the payments due under the
agreement and demand ...