The opinion of the court was delivered by: Magistrate Judge Smyser
A complaint was filed in this case on January 27, 2010. The plaintiff is Donau Furnier, GmbH, a German company. The defendant is M&T Veneer Corporation, a Dover, York County, Pennsylvania Corporation. Diversity jurisdiction under 28 U.S.C. § 1332(a) is invoked by the plaintiff. An answer to the complaint was filed on March 31, 2010. (Doc. 3).
The plaintiff, Donau, supplies high quality furniture grade hardwoods. The defendant fabricates veneer for furniture manufacture and for other interior uses such as doors and paneling. The complaint alleges that in June of 2008 M&T ordered a large quantity of veneer grade wood from Donau. It alleges that the goods were shipped on July 29, 2008, on August 30, 2008 and on September 27, 2008.
The parties agree in the complaint and answer that all of the goods that were ordered and shipped were of the quality and quantity ordered and that the goods arrived in good condition and undamaged. They agree that M&T made no complaint to Donau as to any of the goods involved here.
The complaint alleges that a small quantity of the goods were returned to Donau by M&T. The complaint alleges that M&T has failed to pay for the goods that were not returned. The complaint alleges that on the basis of the invoices, the returns and a credit for the returned goods, a balance of $324,896.51 is owed by M&T to Donau for the goods. The complaint alleges that the parties had a contract, that the defendant breached the contract and that the amount of $324,896.51 is owed by M&T to Donau and should be ordered by the court to be paid by M&T to Donau.
The complaint seeks an award of $324,896.51, prejudgment interest and allowable costs.
The answer to the complaint admits some and denies some of the factual allegations of the complaint summarized above and states 14 affirmative defenses.
On April 15, 2010, the plaintiff filed a motion for summary judgment, asking the court to grant summary judgment in favor of the plaintiff and against the defendant in the amount of $324,896.51 plus prejudgment interest. (Doc. 9). A LR 56.1 statement of facts was filed. (Doc. 10). A supporting memorandum and documents in support of the motion were filed in one solitary combined document with the motion.
The opposition of the defendant to the plaintiff's motion for summary judgment is presented to the court in the defendant's "Response" filed on May 6, 2010. (Doc. 15). The plaintiff on May 12, 2010 filed a reply brief in support of the plaintiff's motion for summary judgment. (Doc. 17).
Plaintiff Donau asserts that it is entitled to summary judgment on the basis of the undisputed facts that all of the goods ordered by defendant M&T from it were received by M&T in sealed ocean containers, undamaged, in good order and condition; that M&T made no complaint as to quality, quantity or condition of the goods it had received; and that M&T through a principal of the company confirmed as accurate an accounting statement prepared by the plaintiff (Exhibit 5 to the plaintiff's motion).
The plaintiff's motion is supported by the affidavit of Erwin Stoker. He states that he is a managing director of Donau. He states that the factual allegations in the complaint are true and correct. He states that for ten months preceding June of 2008 M&T purchased veneer grade wood from Donau. The invoice price was negotiated on each occasion at the Donau facility where M&T principals came for that purpose. The goods were shipped to M&T by Donau, and the terms of payment were generally "90 days after bill of lading issued." Michael Duty, a M&T principal, came to Donau's facility in Germany in June of 2008, and he inspected the veneer that is the subject of the complaint there at that time. After inspection and ordering, the invoices (copies of which are at Exhibit A to the complaint) were prepared including the prices that had been negotiated. The invoices were sent to M&T. M&T presented no complaint or question concerning the invoices to Donau. The goods were shipped from Donau to M&T. Copies of the bills of lading are a part of the summary judgment record. Certain of the goods were returned to Donau upon the agreement of the two parties to reduce the unpaid amount after M&T had not made payment to Donau for a period of time after receiving the goods. A credit to the account was made by Donau for the returned goods. Donau has not received any payment from M&T for the goods received and retained by M&T.
The Stoker affidavit states that Exhibit 5 to the motion for summary judgment is a copy of a communication sent from Donau's accountants, Horntreuhand GmbH, to M&T, signed by M&T and returned to Donau, acknowledging the account balance as of April 7, 2010 to be $324,896.51.
The defendant presents in opposition to the motion for summary judgment neither a LR 56.1 statement of facts nor an affidavit nor documentation nor evidence of any form.
Summary judgment is appropriate if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has established that it would be entitled to a judgment on the basis of admissions, affidavits and documentation, the nonmoving party may not ...