NTA Graphics South Inc v. Axiom Impressions LLC

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NTA GRAPHICS SOUTH, INC., )

)

Plaintiff, )

)

v. ) Case No.: 2:16-cv-01158-SGC

)

AXIOM IMPRESSIONS, LLC, )

)

Defendant. )

MEMORANDUM OPINION & ORDER1

This is a dispute between two commercial printers, NTA Graphics South, Inc., and

Axiom Impressions, LLC. NTA Graphics commenced the action by filing a complaint

asserting various state law claims against Axiom Impressions.2 Thereafter, Axiom

Impressions filed a counterclaim asserting various state law claims against NTA

Graphics.3 Federal subject matter jurisdiction is premised on diversity of citizenship.

(Doc. 13 at ¶¶ 1, 3; Doc. 16). Pending before the undersigned are two motions for

summary judgment filed by NTA Graphics: one seeking judgment in its favor on certain

of Axiom Impressions’ claims (Doc. 53) and one seeking judgment in its favor on certain

of its own claims (Doc. 55). A hearing on the motions was held on July 23, 2019. For

the reasons discussed below, the first motion is due to be granted in part and denied in

1 The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge

pursuant to 28 U.S.C. § 636(c). (Doc. 9).

2 NTA Graphics’ amended complaint is the operative version of the pleading. (Doc. 13).

3 Axiom Impressions’ third amended counterclaim is the operative version of the pleading.

(Doc. 30).

part. The undersigned orally denied the second motion in its entirety during the July 23,

2019 hearing and sets forth the reasons for so doing herein.

I. Material Facts4

A. Introduction

NTA Graphics and Axiom Impressions print newspaper advertising inserts and

circulars. (Doc. 55 at p. 2). NTA Graphics’ printing facility is in Birmingham, Alabama.

(Id.). Axiom Impressions has printing facilities in Portland, Tennessee and Liberty,

Missouri. (Id.).

On February 21, 2015, the roof of Axiom Impressions’ Portland facility collapsed,

causing a fire that rendered the facility and the four printing presses located inside

unusable. (Id.). On February 25, 2015, Matt Duffield (Axiom Impressions’ Chief

Executive Officer) and Kevin Hendrix (Axiom Impressions’ General Manager and Chief

Operating Officer) met with Greg Klausing (NTA Graphics’ President) and Rodney

Parker (NTA Graphics’ Vice President) to discuss whether NTA Graphics would be able

to print jobs for Axiom Impressions pending remediation of the latter’s Portland facility

and repair of its equipment. (Id.).5 At that time, the parties reached an oral agreement,

the duration of which they did not contemplate would be equal to or in excess of one

4 The following facts are undisputed, unless otherwise noted. They are viewed in the light most

favorable to Axiom Impressions, as the non-movant, with Axiom Impressions given the benefit

of all reasonable inferences.

5 Axiom Impressions claims Phillip Hales, an independent printing consultant, was also present

at the February 25, 2015 meeting. (Doc. 65-2 at p. 2; Doc. 54-4 at pp. 21-22). NTA Graphics

denies Hales was present at the meeting. (Doc. 69-1 at ¶ 9).

year. (Id.; Doc. 65-2 at ¶ 8). The terms of that agreement and representations allegedly

made during the February 25, 2015 meeting form the basis of this action.

B. NTA Graphics’ Performance

The parties agree they contemplated NTA Graphics would print jobs for one of

Axiom Impressions’ customers, AG Florida, on a weekly basis and for other customers of

Axiom Impressions depending on capacity at Axiom Impressions’ Liberty, Missouri

facility and NTA Graphics’ Birmingham, Alabama facility. (Doc. 53 at p. 7; Doc. 56-1 at

¶ 4; Doc. 65-2 at ¶ 7; Doc. 65-3 at pp. 74-75). Axiom Impressions claims that during the

February 25, 2015 meeting the parties discussed the approximate number of hours

required each week to complete the AG Florida work, the schedule for that work, and

expectations for print quality. (Doc. 65-2 at ¶ 5). According to Axiom Impressions,

NTA Graphics represented it had the capacity to undertake the AG Florida work, and

Axiom Impressions relied on this representation to the extent it would not have entered

into an agreement with NTA Graphics absent such capacity. (Id. at ¶¶ 5-6). Nonetheless,

there were occasions when NTA Graphics did not have enough labor to perform the AG

Florida work, and Axiom Impressions had to send employees from its Portland facility to

Birmingham, at its own expense, to help complete the work. (Id. at ¶¶ 25-26).

What the parties refer to as the “Penn Dutch error” occurred when NTA Graphics

included pages from a competing grocer’s advertisement within the Easter advertisement

for Penn Dutch, one of AG Florida’s customers. (Doc. 65-2 at ¶¶ 27, 29). According to

Axiom Impressions, this caused “tremendous” confusion amongst Penn Dutch’s

customers and came at a significant cost to Penn Dutch. (Id. at ¶ 30). AG Florida

seriously considered ending its business relationship with Axiom Impressions because of

the Penn Dutch error. (Id. at ¶ 31). Axiom Impressions claims the Penn Dutch error also

came at a cost to Axiom Impressions, for two reasons. First, AG Florida demanded

Axiom Impressions provide a credit for the error in the amount of approximately

$24,000, and Axiom Impressions complied with the demand for fear of losing AG

Florida’s business. (Id. at ¶ 31). Second, while Axiom Impressions had been planning to

present AG Florida with a 5% price increase, it had to delay these plans because of the

Penn Dutch error. (Doc. 54-3 at p. 66; Doc. 54-7 at pp. 20-21; Doc. 65-2 at ¶¶ 32-39;

Doc. 65-18 at ¶¶ 3-6). Axiom Impressions did successfully implement price increases for

five of its other customers in 2015 and 2016. (Doc. 65-2 at ¶¶ 42-46). Moreover, when

Axiom Impressions finally did present a price increase to AG Florida on June 1, 2017,

AG Florida accepted it. (Id. at ¶¶ 38-39). AG Florida accepted price increases on

February 1, 2018, and May 1, 2018, as well. (Id. at ¶¶ 38-39).

C. Axiom Impressions’ Performance

Axiom Impressions provided paper for 95% of the jobs NTA Graphics printed on

Axiom Impressions’ behalf, the graphics for the jobs, and instructions for printing the

jobs. (Doc. 54-3 at p. 29; Doc. 65-2 at ¶¶ 20-21).6 Generally, paper is the most

expensive commodity used by a printer, representing 40-50% of the cost of printing a job.

(Doc. 65-2 at ¶ 22). By contrast, ink represents 4-5% of that cost. (Id. at ¶ 23).

6 On occasions when NTA Graphics provided paper for jobs it printed on Axiom Impressions’

behalf, it submitted separate invoices to Axiom Impressions for the paper. (Doc. 65-19; Doc. 65-

2 at ¶ 20).

Moreover, the parties agree they contemplated Axiom Impressions would pay NTA

Graphics for jobs it printed. However, they disagree on the payment terms.

Axiom Impressions has submitted sworn testimony that for a given job, it agreed

to pay NTA Graphics a sum no greater than the amount Axiom Impressions billed its

customer, less paper and freight provided by Axiom Impressions. (See, e.g., Doc. 65-2 at

¶ 4; Doc. 54-4 at 22). NTA Graphics has submitted sworn testimony denying this was

the parties’ agreement. (Doc. 69-1 at ¶ 10). While NTA Graphics explains why it would

not make business sense for it to have agreed to the price term articulated by Axiom

Impressions (Doc. 53 at pp. 18-19), it does not propose an alternative price term to which

the parties agreed. Instead, NTA Graphics essentially argues Axiom Impressions’

conduct manifested its assent to amounts invoiced by NTA Graphics.

NTA Graphics regularly printed jobs for Axiom Impressions between February

28, 2015, and September 12, 2015. (Doc. 55 at p. 3). NTA Graphics submitted invoices

totaling $309,885.96 to Axiom Impressions between April 2015, and either August or

September 2015. (Doc. 56-1 at ¶¶ 6-7; Doc. 65-2 at ¶¶ 12-13; Doc. 69-1 at ¶ 4).7 Axiom

Impressions paid these invoices in full. (Doc. 56-1 at ¶¶ 6-7; Doc. 65-2 at ¶ 12; Doc. 69-

1 at ¶ 4).8 However, Axiom Impressions claims these payments do not indicate it had no

objection to the amounts invoiced but, rather, merely that the discrepancies between the

7 According to NTA Graphics, it submitted 13 invoices to Axiom Impressions between April 16,

2015, and August 18, 2015. (Doc. 69-1 at ¶ 4). According to Axiom Impressions, it received

seven invoices from NTA Graphics in April 2015, and a few invoices in late August and/or early

September 2015. (Doc. 65-2 at ¶¶ 12-13).

8 NTA Graphics notes Axiom Impressions paid one of these invoices as late as October 13, 2015.

(Doc. 56-1 at ¶ 6).

invoices and the corresponding invoices Axiom submitted to its customers were minimal

and capable of resolution when it performed a final reconciliation at the conclusion of the

parties’ relationship. (Doc. 65-2 at ¶ 12).

NTA Graphics submitted 88 or more invoices totaling $1,304,319.33 to Axiom

Impressions between September or November 2015, and December 2015, for work

performed during the course of the parties’ business relationship. (Doc. 56-1 at ¶¶ 6, 8;

Doc. 65-2 at ¶ 13; Doc. 69-1 at ¶ 5).9 NTA Graphics concedes the invoices were late and

claims this was because it was trying to keep up with the “torrent” of print jobs sent to it

by Axiom Impressions. (Doc. 53 at p. 12; Doc. 68 at p. 4).

Axiom Impressions made the notation “OK to pay” or “OK per KH” on a number

of the invoices after receiving them. (Doc. 59-1; Doc. 60-1; Doc. 61-1; Doc. 62-1).

Hendrix testified he did not personally make the notation “OK per KH” on the invoices

and that neither that nor any other mark or notation indicates the invoices were approved

for payment. (Doc. 65-2 at ¶ 11). Rather, according to Hendrix, he noticed on receiving

the invoices that the amounts NTA Graphics billed to Axiom Impressions were

significantly different than the amounts Axiom Impressions billed its customers for the

corresponding work. (Doc. 65-2 at ¶ 14). Hendrix testified he informed Parker that

Hendrix needed to reconcile the invoices and this would take time given the volume of

the invoices and time period they covered. (Id.). Moreover, according to Hendrix, fall is

9 According to NTA Graphics, it submitted 88 invoices to Axiom Impressions between

September 14, 2015, and December 7, 2015. (Doc. 69-1 at ¶ 5). According to Axiom

Impressions, it received approximately 100 invoices from NTA Graphics in November and

December 2015, for print jobs performed as early as March 2015, and as late as September 2015.

(Doc. 65-2 at ¶ 13).

the busy season for printers, which prevented him from devoting his full attention to the

invoices at that time. (Id. at ¶ 15). Hendirx claims to have maintained regular

communication with Parker during January, February, and March 2016, regarding the

need to reconcile NTA Graphics’ invoices to Axiom Impressions with Axiom

Impressions’ invoices to its customers. (Id. at ¶ 16).

NTA Graphics denies it had any communication with Axiom Impressions

regarding invoicing discrepancies before March 14, 2016, when Hendrix sent an e-mail to

Parker and Klausing, stating he planned to travel to NTA Graphics’ Birmingham facility

within the next two weeks “to go over invoicing differences.” (Doc. 56-1 at ¶ 6; Doc. 56-

4 at 14; Doc. 69-1 at ¶ 5).10 NTA Graphics characterizes its e-mail exchanges with

Axiom Impressions before March 14, 2016, either as indicating the latter would pay the

former in full (Doc. 69-1 at ¶ 5), or as at least failing to object to the amounts invoiced.

For example, on January 29, 2016, Klausing sent an e-mail to Duffield and Hendrix,

stating he was extremely nervous about the sum Axiom Impressions owed NTA Graphics

and needed to know when he could expect to receive payment. (Doc. 56-1 at ¶ 10).

Klausing testified he never received a response to that e-mail. (Id.). On February 10,

2016, Klausing sent another e-mail to Duffield and Hendrix, stating he was entitled to

know when NTA Graphics would receive payment on the outstanding invoices. (Id.).

Klausing testified he never received a response to that e-mail, either. (Id.).

10 Hendrix characterizes his March 14, 2016 e-mail as a reminder of invoicing discrepancies he

had already raised. (Doc. 65-2 at ¶ 17).

On May 3, 2016, NTA Graphics received a wire transfer from Axiom Impressions

in the amount of $749,005.82, together with a spreadsheet “reconciling” the invoices

Axiom Impressions submitted to its customers for jobs printed by NTA Graphics with the

invoices NTA Graphics submitted to Axiom Impressions for those jobs. (Id. at ¶ 11).

NTA Graphics claims it is still owed $555,313.51 (together with interest at the rate of

18%) by Axiom Impressions (id. at ¶¶ 13-14), while Axiom Impressions disputes some

portion of the balance owed (Doc. 56-4 at p. 28; Doc. 65-2 at ¶ 18).

D. Claims

NTA Graphics asserts various state law claims against Axiom Impressions based

on the latter’s failure to pay the outstanding invoices in full. (Doc. 13). Axiom

Impressions asserts counterclaims for breach of contract, based on NTA Graphics’

alleged failure to submit timely and accurate invoices and the Penn Dutch error; breach of

express and implied warranty, based on the Penn Dutch error; fraud, based on NTA

Graphics’ representations regarding its capacity to perform the AG Florida work;

negligence; and unjust enrichment. (Doc. 30). In its pending defensive motion, NTA

Graphics seeks summary judgment in its favor on all but Axiom Impressions’ unjust

enrichment counterclaim. (Doc. 53). In its pending offensive motion, NTA Graphics

seeks summary judgment in its favor on only its claims for open account and account

stated. (Doc. 55). The claims on which NTA Graphics seeks judgment are addressed

below, with the exception of Axiom Impressions’ negligence claim, which Axiom

Impressions concedes. (Doc. 65 at p. 8 n.1).

II. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he [district] court shall

grant summary judgment if 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 (1986); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary judgment bears

the initial burden of informing the district court of the basis for its motion and identifying

those portions of the record the party believes demonstrate the absence of a genuine

dispute as to a material fact. Celotex Corp., 477 U.S. at 323. If the moving party carries

its initial burden, the non-movant must go beyond the pleadings and come forward with

evidence showing there is a genuine dispute as to a material fact for trial. Id. at 324.

The substantive law identifies which facts are material and which are irrelevant.

Anderson, 477 U.S. at 248.11 A dispute is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-movant. Id. at 248. If the evidence is

merely colorable or not significantly probative, summary judgment is appropriate. Id. at

249-50 (internal citations omitted). All reasonable doubts about the facts should be

resolved in favor of the non-movant, and all justifiable inferences should be drawn in the

non-movant’s favor. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

11 The parties agree Alabama law governs their dispute.

III. Discussion

A. Axiom Impressions’ Counterclaims

1. Breach of Contract

a. Statute of Frauds

NTA Graphics argues Axiom Impressions’ breach of contract claim fails because

the parties’ agreement was not in writing, as required by the statute of frauds contained in

Alabama’s Uniform Commercial Code (the “UCC”), Ala. Code § 7-2-201. (Doc. 53 at

pp. 15-19). Axiom Impressions argues the statute of frauds contained in the UCC does

not apply because the parties’ agreement was one for the provision of services, not the

sale of goods. (Doc. 65 at pp. 18-23). Instead, Axiom Impressions claims the validity of

the oral agreement should be determined by reference to Alabama’s general statute of

frauds codified at Ala. Code § 8-9-2. (Id. at p. 23). Because that statute of frauds

requires, in relevant part, contracts not to be performed within one year to be in writing,

Axiom Impressions argues the oral agreement at issue is valid and its terms should be

determined by the trier of fact based on parol evidence. (Id. at p. 23-25).

The UCC applies to contracts for the sale of goods. See Ala. Code § 7-2-102

(providing the UCC applies to “transactions in goods”); § 7-2-105 (defining “goods” as

“all things (including specially manufactured goods) which are movable at the time of

identification to the contract for sale . . . .”). It does not apply to contracts for the

provision of services. See § 7-2-102. Courts have reached different conclusions as to

whether a contract for printed materials is one for the sale of goods or the provision of

services. Compare A.P. Carrico & Son v. J.E. Duval Printing Co., 121 So. 59, 61 (Ala.

1929) (holding contract to print theater programs was one for “articles sold”); Lake Wales

Pub. Co., Inc. v. Florida Visitor, Inc., 335 So. 2d 335, 336 (Fla. Dist. Ct. App. 1976)

(holding contract to print pamphlets and other materials was one for the sale of goods),

Gross Valentino Printing Co. v. Clarke, 120 Ill. App. 3d 907, 910-11 (Ill. App. Ct. 1983)

(holding contract to print magazines was one for the sale of goods), Comark Merch., Inc.

v. Highland Grp., Inc., 1990 WL 17115, at *7 (N.D. Ill. Feb. 8, 1990) (holding contract

for production of brochures was one for the sale of goods), aff’d, 932 F.2d 1196 (7th Cir.

1991), and Erin Printing and Promotional Mktg., Inc. v. Convum, LLC, 2005 WL

366895, at *3 (Tenn. Ct. App. Feb. 15, 2005) (holding contract for production of

catalogues was one for the sale of goods), with Printing Center of Texas, Inc. v.

Supermind Pub. Co., Inc., 669 S.W.2d 779, 782 (Tex. App. 1984) (holding contract to

print books was one for the provision of services), Duro Bag Mfg., Inc. v. Printing Servs.

Co., Inc., 2010 WL 3586855, at *5 (S.D. Ohio Sept. 9, 2010) (holding contract to print

components of shopping bags was one for the provision of services), and Prestige

Magazine Co., Inc. v. Panaprint, Inc., 2010 WL 4259398, at *3 (S.D. W. Va. Oct. 26,

2010) (holding agreement to print real estate guides was one for the provision of

services).

The agreement between NTA Graphics and Axiom Impressions is best

characterized as one for the provision of services.12 The thoroughly reasoned, relatively

12 Whether an agreement should be characterized as one for the sale of goods or the provision of

services is a question for the jury only if “there is a true factual dispute, not if the division

between goods and services merely involves a close call.” Duro Bag, 2010 WL 3586855, at *4

(internal quotation marks omitted). NTA Graphics and Axiom Impressions do not dispute what

recent opinion issued by the Southern District of Ohio in Duro Bag informs this

conclusion. In that case, a manufacturer of paper bags contracted with a retailer to

produce a shopping bag bearing the retailer’s artwork. Duro Bag, 2010 WL 3586855, at

*1. Because the paper bag manufacturer did not have the capability to print the artwork

with the requisite color and image specifications, it contracted with a printer to print

sheets bearing the retailer’s artwork that the manufacturer then converted into shopping

bags. Id. Applying the “predominant purpose” test,13 the court concluded the contract

should be characterized as one for the provision of services because the manufacturer

supplied the sheets, artwork, and color and image specifications to the printer, who

agreed to provide the labor and other services necessary to re-produce the artwork to

specification on the supplied sheets. Id. at 5. “[The printer] was not selling sheets it

produced for buyers to make shopping bags, rather, it was rendering the service of

goods and services were within their agreement but, rather, only the ultimate conclusion to be

drawn from those facts. Accordingly, the characterization of the parties’ agreement is a question

of law for the court. See id. at *4-5 (concluding appropriate characterization of contract

involving both goods and services was question of law for court because parties did not dispute

what was in purview of agreement).

13 In the case of contracts involving a combination of goods and services, the predominant

purpose test asks “whether their predominant factor, their thrust, their purpose, reasonably stated,

is the rendition of service, with goods incidentally involved (e.g., contract with artist for

painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water

heater in a bathroom).” Bonebrake v. Cox, 499 F.2d 951, 960 (8th Cir. 1974). Most courts apply

this test to determine whether a “hybrid” contract should be characterized as one for the sale of

goods or the provision of services. See 25 A.L.R. 7th Art. 4 (originally published in 2017)

(noting characterization of hybrid contract is ordinarily determined by applying test first

enunciated in “seminal” Bonebrake decision); Rajala v. Allied Corp., 66 B.R. 582, 590 (D. Kan.

Oct. 30, 1986) (collecting cases to support assertion majority of courts employ predominant

purpose test when addressing hybrid contracts); Kirkpatrick v. Introspect Healthcare Corp., 845

P.2d 800, 803 (N.M. 1992) (noting majority of jurisdictions apply predominant purpose test to

characterize hybrid contract).

printing images on [the manufacturer’s] sheets so that [the manufacturer] could fulfill its

obligations to its own client.” Id. “[T]he agreement . . . [was] for the manpower and

machine capabilities to produce the specified impression on each sheet provided by the

paper bag manufacturer. The only material supplied by [the printer] was the ink used to

make the impression to [the retailer’s] specification.” Id. at *6.

Similarly, Axiom Impressions provided graphics and instructions for all of the

jobs printed by NTA Graphics, as well as paper for 95% of the jobs. (Doc. 54-3 at p. 29;

Doc. 65-2 at ¶¶ 20-21). Axiom Impressions looked to NTA Graphics to provide the

printing press(es) and labor required to translate those raw materials into newspaper

advertising inserts and circulars, so that it could fulfill its obligations to its customers

while its Portland facility was offline.14

14 Persuasive authority suggests the predominant purpose test determines how a hybrid contract

is characterized under Alabama law. See Skelton v. Druid City Hosp. Bd., 459 So. 2d 818, 824-

25 (Ala. 1984) (Torbert, C.J., concurring specially) (suggesting predominant purpose test

enunciated in Bonebrake should determine whether hybrid contract comes within scope of

Alabama’s UCC); Scott v. Dixie Homecrafters, 125 F. Supp. 2d 1311, 1313 (M.D. Ala. 2000)

(“As a general rule, the Alabama Commercial Code applies to contracts for the sale of goods that

also involve the ancillary provision of services related to those goods. In other words, if the

contract is predominately for goods, with the incidental provision of labor and services, then the

Code governs.”); Rigby v. FIA Card Services, N.A., 490 F. App’x 230, 234 n.2 (11th Cir. 2012)

(noting Alabama’s UCC was not dispositive of the question of acceptance of a hybrid contract

because contract was comprised predominantly of services). However, the Alabama Supreme

Court has not adopted the predominant purpose test or clearly articulated any test for

characterizing a hybrid contract. See Thorn’s Diesel Serv., Inc. v. Houston Ship Repair, Inc., 233

F. Supp. 2d 1332, 1339-40 (M.D. Ala. Nov. 26, 2002) (declining to adopt predominant purpose

test as Alabama’s standard for determining whether a contract is for goods or services in the

absence of direct authority from the Alabama Supreme Court). Nonetheless, the undersigned

finds Duro Bag persuasive to the extent it addresses facts substantially similar to those that must

be characterized in this case as evidencing an agreement for goods or an agreement for services.

Moreover, the undersigned notes the parties concur their agreement involved both goods and

NTA Graphics argues the parties’ agreement should be characterized as one for

the sale of goods because it invoiced Axiom Impressions primarily on the basis of pages

printed. (Doc. 66 at p. 3). While the manner in which a contract was billed is one factor

courts may consider in characterizing a hybrid contract as one for the sale of goods or the

provision of services, see, e.g., BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322,

1330 (11th Cir. 1998) (“[W]hen the contract price does not include the cost of services,

or the charge for goods exceeds that for services, the contract is more likely to be for

goods.”), that factor is not persuasive here, see Duro Bag, 2010 WL 3586855, at *5

(finding per sheet billing system did not transform nature of contract from one for

provision of services to one for sale of goods). This is especially true given NTA

Graphics’ invoices are at the heart of the parties’ dispute.

NTA Graphics also argues the parties’ agreement should be characterized as one

for the sale of goods because a contract between Axiom Impressions and one of its

customers refers to its purpose as the production of goods. (Doc. 66 at p. 4). While the

language of the contract itself is another factor courts may consider in characterizing a

hybrid contract as one for the sale of goods or the provision of services, see, e.g., BMC

Indus., Inc., 160 F.3d at 1330 (“[T]he language of the contract itself provides insight into

whether the parties believed the goods or services were the more important element of

their agreement.”), that factor is likewise unpersuasive here. Notwithstanding the

contract language quoted by NTA Graphics, in its own complaint and summary judgment

services and that the dispositive issue is which of these predominated. (Doc. 65 at pp. 18-23;

Doc. 66 at pp. 1-4).

briefing, NTA Graphics repeatedly refers to “printing services” it performed for Axiom

Impressions. (Doc. 13 at ¶¶ 8, 10-13, 15; Doc. 53 at pp. 3, 6, 12, 14, 18). Thus, at the

very least, contract language is a neutral factor here. Given Axiom Impressions provided

NTA Graphics with most of the raw materials used to print a job, a more accurate

characterization is that NTA Graphics performed services for Axiom Impressions so

Axiom Impressions could provide goods to its customers.

For the foregoing reasons, the agreement reached by NTA Graphics and Axiom

Impressions is properly characterized as one for the provision of services.15 Therefore,

Alabama’s general statute of frauds, not the statute of frauds contained in the UCC,

determines whether the agreement was required to have been in writing. Alabama’s

general statute of frauds provides, in relevant part, that “[e]very agreement which, by its

terms, is not to be performed within one year from the making thereof” is void unless in

writing. Ala. Code § 8-9-2(1). “[T]o bring a contract within the purview of this section .

. . the contract must be incapable of being performed within one year.” Hornady v. Plaza

Realty Co., Inc., 437 So. 2d 591, 593 (Ala. Civ. App. 1983) (citing Land v. Cooper, 34

So. 2d 313 (1948)). Thus, even where an agreement is not likely to be performed within

15 As noted above, the Alabama Supreme Court held in a decision dating back to 1929 that a

contract to print theater programs was one for “the manufacture and delivery of articles sold”

and, therefore, “governed by the law of such transactions rather than the law of entire contracts

for personal services.” A.P. Carrico & Son, 121 So. at 61. In a supplemental brief filed after the

July 23, 2019 hearing, Axiom Impressions argues the facts of this case are distinguishable from

A.P. Carrico & Son. (Doc. 73). The undersigned agrees. To the extent there is no indication in

A.P. Carrico & Son that the printer provided no more than the equipment and labor necessary to

reproduce graphics and text supplied to it on paper also supplied to it, the undersigned finds the

facts and reasoning of Duro Bag more on point.

one year or not expected to be performed within one year, it is not subject to § 8-9-2(1)

unless “by a fair and reasonable interpretation of the terms used by the parties, and in

view of all the circumstances existing at the time, [it] does not admit of its performance

[within one year of its making,] according to its language and intention . . . .” W.P.

Brown & Sons Lumber Co. v. Rattray, 192 So. 851, 855 (Ala. 1939); see also Hill v.

Raney Ins. Agency of Anderson, Inc., 474 So. 2d 738, 739-40 (Ala. Civ. App. 1985)

(holding statute of frauds did not apply where there was no evidence parties agreed their

dealings were to be performed over period exceeding one year and those dealings were

capable of being performed, and were performed, within one year). NTA Graphics and

Axiom Impressions did not contemplate their agreement was incapable of performance

within one year from its making (Doc. 65-2 at ¶ 8), and NTA Graphics does not make an

argument to the contrary. Accordingly, NTA Graphics’ statute of frauds defense fails.

b. Damages

Alternatively, NTA Graphics argues Axiom Impressions’ breach of contract claim

fails because Axiom Impressions cannot prove its damages. According to NTA

Graphics, the AG Florida price increase Axiom Impressions claims to have delayed

because of the Penn Dutch error constitutes lost profits that are not the proximate result

of the breach complained of or reasonably ascertainable in amount. (Doc. 53 at pp. 19-

23). Axiom Impressions argues these damages were foreseeable because NTA Graphics

knew AG Florida was one of Axiom Impressions’ most important customers and that it

can prove the amount of these damages with reasonable certainty through the

introduction of testimony it had long-planned the price increase and expert testimony

regarding the appropriate computation. (Doc. 65 at 27-31).

Special proof requirements apply to lost profits properly characterized as

consequential damages. Med Plus Props. v. Colcock Const. Grp., Inc., 628 So.2d 370,

376 (Ala. 1993).16 These requirements are embodied in the rule of “reasonable

certainty.” Id. That rule requires that to be recoverable, lost profits must be (1) “ ‘the

natural and proximate, or direct, result of the breach complained of’” and (2) either they

must be “ ‘capable of ascertainment with reasonable, or sufficient, certainty,’” or there

must be “ ‘some basis on which a reasonable estimate of the amount of the profit can be

made.’” Id. at 376-77 (quoting Paris v. Buckner Feed Mill, Inc., 182 So. 2d 880, 881

(Ala. 1966)). “[A]bsolute certainty is not called for or required.” Id. at 377 (quoting

Paris, 182 So. 2d at 881). However, to the extent lost profits are speculative, conjectural,

or remote, they are disallowed. Paris, 182 So. 2d at 882.

Any lost profits Axiom Impressions suffered in connection with its decision to

delay a price increase for AG Florida were not the proximate result of the Penn Dutch

error. While Axiom Impressions may have known at the time the parties entered into

their agreement that it planned to present a price increase to AG Florida, it did not

communicate this intent to NTA Graphics, and the planned price increase was not made

part of the parties’ agreement. See Garrett v. Sun Plaza Dev. Co., 580 So. 2d 1317, 1320

(Ala. 1991) (“[P]rofits are too remote and cannot be recovered when they are not the

16 The parties agree the delayed price increase represents lost profits properly characterized as

consequential damages. (Doc. 53 at pp. 22-23; Doc. 65 at pp. 27-31; Doc. 66 at pp. 5-6).

immediate fruits of the principal contract, but are dependent on collateral engagements

not brought to the notice of the contracting parties.”); Dickerson v. Finley, 48 So. 548,

552 (Ala. 1908) (holding plaintiff could not recover profits from contracts for sale of

lumber of which he was deprived because of defendant’s breach of agreement to furnish

standing timber and sawmill, where plaintiff failed to allege sales contracts were within

knowledge of defendant or contemplation of parties). The mere fact NTA Graphics knew

AG Florida was one of Axiom Impressions’ most important customers does not make the

profits Axiom Impressions claims to have lost from delaying the AG Florida price

increase foreseeable. The relevant question is not whether NTA Graphics had knowledge

of the important business relationship between Axiom Impressions and AG Florida or

whether Axiom Impressions had a definite intent to implement a price increase for AG

Florida before the Penn Dutch error but, rather, whether the planned price increase was

within NTA Graphics’ knowledge or the contemplation of the parties’ in reaching their

agreement. It was not.

Moreover, attribution of lost profits to the Penn Dutch error amounts to no more

than speculation, given Axiom Impressions never presented a price increase to AG

Florida during the time at issue. AG Florida’s serious re-consideration of its business

relationship with Axiom Impressions following the Penn Dutch error may have led

Axiom Impressions to believe AG Florida would have rejected a proposed price increase

at or around the time of the error, but that belief was untested and, as such, is not a basis

for awarding lost profits. See Johnco Materials v. Conrad Yelvington Distribs., 542 F.

Supp. 2d 1248, 1258 (M.D. Ala. 2008) (holding plaintiff’s statement it intended to sell

byproducts of gravel to have been produced for defendant under allegedly breached

supply agreement failed to provide evidentiary basis on which lost profits could be

awarded); Mall, Inc. v. Robbins, 412 So. 2d 1197, 1201 (Ala. 1982) (holding tenant could

not recover from landlord profits he might have realized by subleasing space to

discotheque because such profits were dependent on future success of unestablished

business and contingent on discotheque’s continued ability to meet rental obligations);

Paris, 182 So. 2d at 882 (holding profits party might have made by reselling eggs bought

from feed mill that breached agreement were too speculative to be recoverable). Axiom

Impressions’ successful implementation of price increases for other of its customers in

2015 and 2016, and for AG Florida in 2017 and 2018, does not make it reasonably certain

that but for the Penn Dutch error AG Florida would have accepted a price increase at an

earlier date.

Accordingly, regardless of whether Axiom Impressions can provide a reasonably

certain computation of the additional profits it would have earned if it had implemented a

price increase for AG Florida earlier than June 1, 2017, it has failed to produce evidence

NTA Graphics is legally responsible for these alleged lost profits. However, Axiom

Impressions has produced evidence it suffered damages other than lost profits because of

the Penn Dutch error – namely, the $24,188.01 credit it provided to AG Florida. (Doc.

65-2 at ¶ 31). Moreover, Axiom Impressions breach of contract claim is based not only

on the Penn Dutch error, but also on NTA Graphics’ alleged failure to submit timely and

accurate invoices to Axiom Impressions. (Doc. 65 at p. 25). Therefore, while NTA

Graphics’ motion for summary judgment is due to be granted to the extent Axiom

Impressions cannot recover lost profit damages for the Penn Dutch error, Axiom

Impressions’ breach of contract claim otherwise survives.

2. Breach of Express and Implied Warranty

Axiom Impressions asserts claims for breach of express and implied warranty,

premised on the warranties created by Alabama’s UCC, Ala. Code §§ 7-2-313 and 7-2-

314, in the alternative to its breach of contract claim. (Doc. 65 at pp. 31-32). As Axiom

Impressions acknowledges (Doc. 65 at p. 31), the conclusion the parties’ agreement is not

governed by the UCC means that while its breach of contract claim survives, its breach of

warranty claims necessarily fail.

3. Fraudulent Misrepresentation

Axiom Impressions claims it was fraudulently induced to enter into the parties’

agreement by NTA Graphics’ (1) misrepresentation it had enough labor to perform the

AG Florida work and (2) suppression of the fact it did not have sufficient labor to

perform that work. (Doc. 65 at pp. 33-36). NTA Graphics characterizes these claims as

ones for promissory fraud and argues they fail because Axiom Impressions has not come

forward with evidence NTA Graphics intended to deceive Axiom Impressions. (Doc. 53

at pp. 23, 25-26). It also argues the claims fail because they are based on the same

conduct as Axiom Impressions’ breach of contract claim. (Id. at pp. 23-25).

a. Conduct Underlying Claims

The mere failure to perform a contractual obligation does not constitute fraud, and

a breach of contract claim cannot be recast as one sounding in tort. See Brown-Marx

Assocs., Ltd. V. Emigrant Sav. Bank, 703 F.2d 1361, 1370-71 (11th Cir. 1983) (citing

McAdory v. Jones, 71 So. 2d 526, 528 (Ala. 1954)); C&C Prods., Inc. v. Premier Indus.

Corp., 275 So. 2d 124, 130 (Ala. 1972). However, Alabama law permits maintenance of

both a claim a party fraudulently induced an agreement by misrepresenting or concealing

facts related to its ability to perform thereunder and a claim the party breached the

agreement by failing to perform thereunder. See Combined Servs., Inc. v. Lynn Elecs.

Corp., 888 F.2d 106, 107 (11th Cir. 1989) (noting Alabama courts have “consistently

held” as much) (citing Deupree v. Butner, 522 So. 2d 242, 244 (Ala. 1988)); Exxon Mobil

Corp. v. Alabama Dep’t of Conservation & Nat. Res., 986 So. 2d 1093, 1129 (Ala. 2007)

(noting the “long-standing rule” that “[a] party who has been the victim of a

misrepresentation of a material fact or the suppression of a material fact when there is a

duty to speak upon which it reasonably relied during negotiations can claim fraud in the

inducement”) (Lyons, J., concurring in part and concurring in result). What is required

for the simultaneous prosecution of such claims is that “the fraud claim [] be based on

representations independent from promises in the contract and [that it] independently

satisfy the elements of fraud.” Hunt Petroleum Corp. v. State, 901 So. 2d 1, 10-11 (Ala.

2004) (Houston, J., concurring specially) (citing Deupree, 522 So. 2d at 245); see also

Muncher v. NCR Corp., 2017 WL 2774805, at *16-17 (N.D. Ala. June 27, 2017) (noting

that while Justice Houston’s concurrence in Hunt is not binding it is nonetheless a

“correct statement[] of Alabama law”).

Axiom Impressions’ claims for fraudulent inducement by misrepresentation and

suppression satisfy this requirement. The basis for the claims is NTA Graphics’ alleged

misrepresentation or concealment of its capacity to perform the AG Florida work. (Doc.

65 at pp. 33-36). Through briefing and oral argument, Axiom Impressions has clarified

that contrary to NTA Graphics’ interpretation, it does not allege any representation

regarding NTA Graphics’ capacity to perform the AG Florida work was made an

obligation under the parties’ agreement, or claim NTA Graphics breached a contractual

obligation to provide sufficient labor to perform the AG Florida work. (See Doc. 65).

Because the alleged conduct giving rise to Axiom Impressions’ fraudulent inducement

claims is independent from the conduct underlying its breach of contract claim, Axiom

Impressions may maintain both the former and the latter in this action.

b. Intent to Deceive

Legal fraud includes claims for the misrepresentation or suppression of existing

material facts. See Ala. Code § 6-5-101 (providing misrepresentation of material fact

constitutes legal fraud); Ala. Code § 6-5-102 (providing suppression of material fact

constitutes fraud); Baker v. Hanks, 661 So. 2d 1155, 1157 (Ala. 1995) (noting fraudulent

misrepresentation claim requires proof of false representation of existing material fact);

Coilplus-Alabama, Inc. v. Vann, 53 So. 3d 898, 909 (Ala. 2010) (noting fraudulent

suppression claim requires proof of concealment of existing material fact). By contrast,

promissory fraud is based on a promise to act or refrain from acting in the future. Sexton

v. Bass Comfort Control, Inc., 63 So. 3d 656, 661 (Ala. Civ. App. 2010) (citing Allstate

Ins. Co. v. Hilley, 595 So. 2d 873, 876 (Ala. 1992)); see also New Hampshire Ins. Co. v.

Flowers Ins. Agency, LLC, 2011 WL 1740135, at *8 (M.D. Ala. May 5, 2011)

(distinguishing between legal fraud and promissory fraud). The distinction is meaningful

because promissory fraud requires proof of intent to deceive, Alabama Psychiatric Servs.,

P.C. v. 412 South Court Street, LLC, 81 So. 3d 1239, 1247 (Ala. 2011) (citing Pranzo v.

ITEC, Inc., 521 So. 3d 983, 984 (Ala. 1988)), while legal fraud does not require

fraudulent intent, Burlington N.R. Co. v. Warren, 574 So. 2d 758, 766-767 (Ala. 1990)

(noting the court has long held misrepresentations are actionable even without fraudulent

intent); Davis v. Sterne, Agee and Leach, Inc., 965 So. 2d 1076, 1091 (Ala. 2007) (noting

fraudulent suppression claim does not require proof of intent to deceive); New Hampshire

Ins. Co. v. Flowers Ins. Agency, LLC, 2011 WL 1740135, at *8 (collecting authority).

According to Axiom Impressions, NTA Graphics’ represented during the parties’

February 25, 2015 meeting that it had the capacity to perform the AG Florida work.

(Doc. 65-2 at ¶¶ 5-6). This was not a promise to act in the future but, rather, a statement

of existing fact as to NTA Graphics’ manpower. Compare Alabama Psychiatric Servs.,

81 So. 3d at 1246-47 (noting claim was one for promissory fraud where it involved

alleged misrepresentations that addition to office building would be built as common area

with sufficiently discreet and appropriate main entrance for plaintiff’s clients), with

Sexton, 63 So. 3d at 661-62 (holding statement was representation of present content of

warranty plaintiffs were purchasing, not promise to act in future), Hilley, 595 So. 2d at

876 (holding statement was representation of insurer’s present obligations under

insurance policy plaintiff was purchasing, not promise to act in future), and New

Hampshire Ins. Co., 2011 WL 1740135, at *9 (holding statement was basis for claim of

legal fraud, not promissory fraud, because it related to existing facts that were either true

or false at the time it was made, not promise to act in future). Moreover, to the extent

that during the parties’ February 25, 2015 meeting NTA Graphics concealed the fact it

did not have sufficient manpower to perform the AG Florida work, such concealment

also relates to facts as they existed at the time, not a promise to act in the future. Because

Axiom Impressions asserts claims for legal fraud, not promissory fraud, it is not required

to establish deceptive intent to succeed on those claims.

c. Evidence Supporting Claims

The elements of a fraudulent misrepresentation claim are (1) a false representation

(2) of existing material fact (3) relied on by the plaintiff, (4) who was damaged as a

proximate result of the misrepresentation. Baker, 661 So. 2d at 1157. The elements of a

fraudulent suppression claim are (1) the concealment of an existing material fact, (2)

which the defendant had a duty to disclose, (3) and which induced the plaintiff to act or

refrain from acting, (4) as a proximate result of which the plaintiff was damaged.

Coilplus-Alabama, 53 So. 3d at 909. While a fraudulent misrepresentation claim does

not require knowledge by the defendant of the falsity of its representation, In re Bennitt,

348 B.R. 820, 826 (Bankr. N.D. Ala. 2006) (citing First Nat’l Bank of Auburn v.

Dowdell, 157 So. 2d 221, 225 (Ala. 1963); Barrett v. Hanks, 155 So. 2d 339, 342 (Ala.

1963)), a fraudulent suppression claim requires proof the defendant actually knew the

fact alleged to have been suppressed, Coilplus-Alabama, 53 So. 3d at 909 (citing Cook’s

Pest Control, Inc. v. Rebar, 28 So. 3d 716, 726 (Ala. 2009)). Fraudulent inducement is a

species of fraudulent misrepresentation or suppression where a party relies on a false

representation or omission made during negotiations in executing an agreement or taking

a course of action. See Oakwood Mobile Homes, Inc. v. Barger, 773 So. 2d 454, 459

(Ala. 2000) (defining fraud in the inducement).

Axiom Impressions has submitted evidence that during the parties’ February 25,

2015 meeting, NTA Graphics represented it had the capacity to perform the AG Florida

work; that it relied on this representation in entering into the parties’ agreement; and that

it incurred extra expense because there were occasions when NTA Graphics did not have

enough labor to perform the AG Florida work. (Doc. 65-2 at ¶¶ 5-6, 25-26). This

evidence is sufficient to support its claim of fraudulent inducement by misrepresentation.

As noted above, a misrepresentation need not have been made with intent to deceive.

Under Alabama law, even innocent misrepresentations are actionable as fraud. See Ala.

Code § 6-5-101 (“Misrepresentations of a material fact made willfully to deceive, or

recklessly without knowledge, and acted on by the opposite party, or if made by mistake

and innocently and acted on by the opposite party, constitute legal fraud.”). “The good

faith of a party in making a representation that later proves to be false is immaterial; in

the eyes of the law, the misrepresentation is as fraudulent as if it had been intentional.”

Coaker v. Washington Cty. Bd. of Educ., 646 So. 2d 38, 42 (Ala. Civ. App. 1993) (citing

Smith v. Reynolds Metals Co., 497 So. 2d 93 (Ala. 1986)). “Consequently, the mere

assertion of that to be true which is not true, although believed to be true, when made to

be relied on and which is relied on to the injury of a party misled thereby, may result in

the imposition of liability for compensatory damages.” In re Bennitt, 348 B.R. at 826

(citing Hudson v. Moore, 194 So. 147, 149 (Ala. 1940); Hartselle Real Estate & Ins. Co.

v. Atkins, 426 So. 2d 451, 453 (Ala. Civ. App. 1983)).

However, Axiom Impressions has failed to submit any evidence NTA Graphics

actually knew at the time of the parties’ February 25, 2015 meeting that it did not have

the labor required to perform the AG Florida work, which is fatal to its claim of

fraudulent inducement by suppression. Otherwise put, while NTA Graphics may have

innocently misrepresented its capacity to perform the AG Florida work at the time the

parties were negotiating the terms of their agreement, there is no evidence it concealed

any knowledge it did not have the capacity represented.

B. NTA Graphics’ Claims

1. Open Account

The theory of an open account is a method of proving amounts owed. 1A C.J.S.

Account Stated § 2. An open account is “an account under which the parties continue to

do business, adding debits and credits, or a running account used by the parties to settle

several transactions over an extended period.” Id.; see also Rose Manor Health Care,

Inc. v. Barnhardt Mfg. Co., 608 So. 2d 358, 360 (Ala. 1992) (“[T]o establish an open

account there must be an account based upon running or concurrent dealings, the dealings

must not have been closed, settled or stated, and some term of the contract must remain to

be settled between the parties, or the agreement must contemplate further transactions

between the parties.”) (internal quotation marks omitted). Proof of an account generally

requires the plaintiff to reasonably satisfy the finder of fact of the amount due, and the

defendant may contest the same. See 2 ALA. PATTERN JURY INSTR. CIV. 40.01 (3d ed.);

see also Car Center, Inc. v. Home Indem. Co., Inc., 519 So. 2d 1319, 1324-25 (Ala.

1988) (holding genuine issues of material fact regarding amount of debt owed precluded

summary judgment on open account claim). Additionally, some courts have required a

plaintiff asserting an open account claim to show the amount charged was reasonable.

See, e.g., De Groot v. Standley Trenching, Inc., 338 P.3d 536, 543 (Idaho 2014).

Given the amount Axiom Impressions owes NTA Graphics is at the heart of the

parties’ dispute, it is manifestly clear genuine issues of material fact preclude summary

judgment in NTA Graphics’ favor on its open account claim. Moreover, the

reasonableness of the outstanding invoices in this case remains an open question because

NTA Graphics has failed to articulate the basis of the charges or clearly explain how and

why they vary from Axiom Impressions’ corresponding charges to its customers.

2. Account Stated

The theory of an account stated is another method of proving amounts owed. 1A

C.J.S. Account Stated § 2. “An account ceases to be an open account and becomes an

account stated when the debtor assents to the balance stated.” Id.; see also 1A C.J.S.

Account Stated § 17 (“The conversion of an open account into an account stated[] is an

operation by which the parties assent to a sum as the correct balance due from one to the

other . . . .”). The Alabama Supreme Court has relied on the Alabama Court of Civil

Appeals’ decision in Univ. of S. Alabama v. Bracy, 466 So. 2d 148 (Ala. Civ. App. 1985)

for an explanation of the nature and elements of a claim for account stated. See Car

Center, 519 So. 2d at 1322-23 (quoting Bracy, 466 So. 3d at 150); Stacy v. Peed, 142 So.

3d 529, 532 (Ala. 2013) (quoting Ayers v. Cavalry SVP I, LLC, 876 So. 2d 474, 477 (Ala.

Civ. App. 2003), in turn quoting Bracy, 466 So. 3d at 150). In Bracy, the court

explained:

An account stated is a post-transaction agreement. . . . A prima facie case

on an account stated is made when the plaintiff proves (1) a statement of

account between the parties is balanced and rendered to the debtor; (2)

there is a meeting of the minds as to the correctness of the statement; and

(3) the debtor admits liability. The debtor’s admission to the correctness of

the statement and to his liability thereon can be express or implied. An

account rendered, and not objected to within reasonable time becomes an

account stated, and failure to object will be regarded as an admission of

correctness of the account.”

466 So. 2d at 150 (internal citations omitted). “An implied agreement to pay a bill can

arise only where there has been a showing that the bill was rendered and the recipient of

the bill failed to object within a reasonable time.” Car Center, 519 So. 2d at 1323.

Assuming the invoices NTA Graphics submitted to Axiom Impressions satisfies

the first element of an account stated claim, genuine issues of material fact exist with

respect to the second and third elements. The parties dispute whether Axiom Impressions

unconditionally accepted invoices submitted by NTA Graphics between April 2015, and

either August or September 2015, whether NTA Graphics was justified in the concededly

late submission of the remainder of its invoices, and whether the parties communicated

about the invoicing discrepancies alleged by Axiom Impressions before March 16, 2016.

Resolution of these disputed facts is necessary to determine whether Axiom Impressions

impliedly agreed to pay the invoices by failing to object to the same within a reasonable

time. See Bracy, 466 So. 2d at 150 (holding that whether defendant’s payment on bill for

more than four years without objection constituted implied admission to correctness of,

and liability for, bill was question for jury); Owings v. Gullett, 437 So. 2d 1050, 1052-53

(Ala. Civ. App. 1983) (holding plaintiff’s denial he received defendant’s letter objecting

to bill and plaintiff's failure to affirm he presented protest letter to plaintiff created

questions of fact as to whether defendant failed to object to account within reasonable

time).

IV. Conclusion

For the foregoing reasons, NTA Graphics’ defensive motion for summary

judgment (Doc. 53) is GRANTED to the extent Axiom Impressions cannot recover lost

profit damages for the Penn Dutch error and its claims for negligence, breach of express

and implied warranty, and fraudulent inducement by suppression are DISMISSED. That

motion is DENIED in all other respects. Additionally, NTA Graphics’ offensive motion

for summary judgment (Doc. 55) is DENIED in its entirety.

DONE this 3rd day of September, 2019.

4 Cpenebes

STACI G. Ae nities

U.S. MAGISTRATE JUDGE

29