United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
dispute concerns a promissory note issued by the defendant,
Top's Personnel, Inc., to the plaintiff, Applied
Underwriters, Inc., in 2014. Filing 23-1. Applied is suing
Top's on the promissory note, claiming that Top's
"has made no payments" toward its obligation.
Filing 142 at 1. Top's has responded with an affirmative
defense, arguing that the note is "void" and the
alleged obligation unenforceable. Filing 129 at 3.
matter is before the Court on the parties' cross-motions
for summary judgment. Filing 141; filing 145. For the reasons
explained below, Applied's motion (filing 141) will be
granted, and Top's motion (filing 145) will be denied.
Top's will be ordered to pay Applied the sum of $166,
Underwriters markets and sells a workers' compensation
program called EquityComp. Filing 146 at 2; see
filing 148-4 at 8. In 2011, Applied sold an EquityComp policy
to Top's Personnel. Filing 146 at 2.
monthly premiums under its policy generally ranged from $50,
000.00 to $120, 000.00 per month. Filing 146 at 7; filing
148-9. But in January 2014, Top's received an invoice for
$511, 358.70. Filing 146 at 7; filing 148-9 at 51-52. Unable
to pay that amount, Top's issued a promissory note to
Applied in the amount of $119, 645.13. See filing
23-1 at 1-6. Top's "acknowledge[d] its
indebtedness" in the note, and "promise[d] to
pay" Applied the amount reflected above. Filing 23-1 at
Top's failed to pay its alleged obligation, Applied filed
suit, seeking $126, 488.45 "plus accruing per diem
interest." Filing 23 at 2. Top's answered
Applied's complaint with a series of affirmative
defenses, including the one at issue here: that EquityComp is
unlawful and the promissory note void. Filing 129 at 3.
Top's now moves for summary judgment on those grounds,
arguing that it is entitled to relief as a matter of law.
See filing 145. Applied, too, has moved for summary
judgment, claiming that it is owed $166, 202.65. Filing 141;
see filing 143 at 12.
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a). The movant bears the initial responsibility
of informing the Court of the basis for the motion, and must
identify those portions of the record which the movant
believes demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary
materials that set out specific facts showing that there is a
genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653
F.3d 745, 751 (8th Cir. 2011). The existence of a mere
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 791-92 (8th Cir. 2011). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
noted, the parties dispute the validity of Top's 2014
promissory note. Top's argues that the note is
unenforceable because it derives from an insurance program
(EquityComp) that is "unlawful under New Jersey
law." Filing 147 at 18. Applied disagrees, arguing that
the note is enforceable regardless of its compliance (or
noncompliance) with state regulations. Filing 158 at 3. The
Court will provide a brief overview of EquityComp, and the
relevant statutory requirements, before addressing the
New Jersey employer, Top's is required to obtain
workers' compensation insurance for its employees.
See N.J. Stat. Ann. § 34:15-78. So, in 2011,
Top's purchased an insurance policy through Applied's
Equity Comp program. Filing 146 at 2. The details of that
program are complex and disputed, but it's generally