United States District Court, W.D. Wisconsin
STEPHEN L. CROCKER, MAGISTRATE JUDGE
April 29, 2019, this court granted summary judgment to
plaintiff Winfield Solutions, LLC, finding that Winfield was
entitled to an award against defendants of more than $1
million in unpaid invoices and late payment fees for
agricultural product delivered to and accepted by defendant W
S Ag Center, Inc. Dkt. 34. Pursuant to the court's
request, on May 2, 2019, Winfield submitted a proposed
judgment and asked the court to enter judgment against
defendants, jointly and severally, for amounts specified in
the judgment. Dkt. 36.
10, 2019, defendants filed a brief, along with a new
affidavit from W. Kent Ganske, raising two objections to
plaintiff's proposed judgment: (1) a “fact
issue” exists concerning whether Ganske was told by
Winfield that it would “credit” against his debt
the $307, 667 Ganske has in his base capital accounts with
Winfield; and (2) Winfield committed a number of mathematical
errors in calculating the amount due. Dkts. 39, 40. On May
13, 2019, Winfield filed a reply in which it acknowledged
that it had miscalculated the daily late charge, agreeing
with defendants that the daily amount should be $536.22, not
$550.27. Dkt. 41. However, it disagreed that it had committed
any other calculation errors or that Ganske's affidavit
raising new fact issues was properly before the court.
response, defendants moved to strike on the ground that
Winfield's reply was unsolicited; in the alternative,
they argued that Winfield's concession that it erred in
its initial calculations warranted reopening the summary
judgment proceedings. Dkt. 42. Defendants' motion to
strike and plaintiff's motion for entry of judgment are
under advisal to the court.
motion to strike the reply brief is denied. Had Winfield not
submitted a reply, this court likely would have asked for
one, given the various calculation errors alleged by
defendants. Winfield conceded that it had erroneously
included a late charge for an invoice that had a zero
balance, and it revised the proposed judgment to reflect the
new calculations. This was a proper reply.
request that the court reconsider its summary judgment ruling
is denied. Their suggestion that one of Winfield's
affiants materially changed his testimony when he revised his
late fee calculation borders on the ridiculous. As for W.
Kent Ganske's newfound ability to remember the name of
the person from United Suppliers, Inc. who told him that he
could access the funds in his capital accounts at any time,
his opportunity to “put up or shut up” was at
summary judgment. See Nichols v. Nat'l Union Fire
Ins. Co. of Pittsburgh, PA, 509 F.Supp.2d 752, 760 (W.D.
Wis. 2007) (“[S]ummary judgment is ‘not a dress
rehearsal or practice run,' but the ‘put up or shut
up moment' in which a proponent of facts must show what
evidence it has to convince a trier of fact to accept its
version of events.”) (quoting Schacht v. Wis.
Dep't of Corr., 175 F.3d 497, 504 (7th Cir. 1999)).
Ganske had more than a year between the filing of the
complaint and the time his response to the summary judgment
motion was due; with any amount of diligence, he could have
figured out this person's name long before now. Moreover,
Ganske has never attempted to make the unlikely showing that
he could establish the other elements of a misrepresentation
claim, namely, that he was justified in relying on
United's alleged misstatement about the base capital
accounts, which is plainly inconsistent with the coop's
bylaws. In short, Ganske's Hail Mary attempt to prevent
entry of judgment against him is too little and too late.
with the exception of defendants' objection to the daily
late charge, defendants' objections to plaintiff's
calculations are rejected for the reasons stated in
plaintiff's reply brief, dkt. 41, at 2-3.
1. Defendants' motion to strike, dkt. 42, is DENIED.
2. Plaintiff's motion for entry of judgment, dkt. 36, is
GRANTED. The clerk of court is directed to enter judgment
reflecting that Plaintiff Winfield Solutions, LLC is awarded
a money judgment against Defendants W S Ag Center, Inc., W.
Kent Ganske and Julie L. Ganske, jointly and severally, for
the following amounts:
Principal Amount of Debt
$1, 087, 332.83
Late Charges to May 17, 2019
$ 437, 128.32
$1, 524, 461.15