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Elavon, Inc. v. Wachovia Bank, NA

United States District Court for the Northern District of Georgia, Atlanta Division

May 23, 2011, Decided; May 23, 2011, Filed

CIVIL ACTION NO. 1:09-CV-139-ODE

Opinion

 [*1301]  ORDER

This case is before the Court on cross-motions for summary judgment. Plaintiff Elavon, Inc. ("Plaintiff" or "Elavon") has filed a Motion for Partial Summary Judgment [Doc. 167], to which Defendants Wachovia Bank, N.A.  [**3] ("Wachovia Bank"), Wells Fargo Bank, N.A. ("Wells Fargo Bank"), and Wells Fargo & Co. (collectively "Defendants") have responded in opposition [Doc. 222] and Plaintiff has replied [Doc. 251]. Defendants have filed a Motion for Summary Judgment [Doc. 173], to which Plaintiff has responded in opposition [Doc. 219] and Defendants have replied [Doc. 249]. For the following reasons, Plaintiff's Motion for Partial Summary Judgment [Doc. 167] is GRANTED and Defendants' Motion for Summary Judgment [Doc. 173] is DENIED.

I. Plaintiff and Defendants

Plaintiff Elavon, Inc. (formerly known as Nova Information Systems, Inc.) is a Georgia corporation with its principal place of business in Atlanta, Georgia [Plaintiff's Statement of Material Facts, Doc. 197 at 1]. Elavon is in the business of providing merchant processing services, specifically processing credit/debit card and certain other electronic transactions [Id. at 10].

At relevant times Defendant Wachovia Bank was a national banking association with its designated main office in North Carolina. [Id. at 2]. It was a wholly owned subsidiary of Wachovia Corporation. Wachovia Corporation is not named as a party in Plaintiff's Second Amended Complaint  [**4] (the current operative complaint).

Defendant Wells Fargo & Co. is a Delaware corporation with its principal place of business in California [Id.]. Defendant Wells Fargo Bank, N.A. is a national banking association with its designated main office in South Dakota [Id.]. It is wholly owned by Wells Fargo & Co.

The parties agree that Georgia law applies. The agreement at issue states that Georgia law applies.

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841 F. Supp. 2d 1298 *; 2011 U.S. Dist. LEXIS 152004 **; 2011 WL 7071066

ELAVON, INC., formerly known as Nova Information Systems, Inc., Plaintiff, v. WACHOVIA BANK, NATIONAL ASSOCIATION; WELLS FARGO & COMPANY; WELLS FARGO BANK, NATIONAL ASSOCIATION; and FIRST DATA MERCHANT SERVICES CORPORATION, Defendants.

Prior History: Elavon, Inc. v. Wachovia Bank, 2010 U.S. Dist. LEXIS 154285 (N.D. Ga., May 3, 2010)

CORE TERMS

terminate, merchant, merger, force majeure, obligations, referral, Cancellation, acquire, summary judgment, impracticability, profits, damages, impossibility, summary judgment motion, processing service, repudiation, liquidated, terms, grant summary judgment, matter of law, merged, notice, counterclaim, effective, banking, default, breach of contract, unenforceability, calculated, subsidiary

Mergers & Acquisitions Law, Liabilities & Rights of Successors, Successor Liability Doctrine, Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Contracts Law, Standards of Performance, Impossibility of Performance, Business & Corporate Compliance, Contracts Law, Impracticability, Banking Law, Federal Acts, Burdens of Proof, Nonmovant Persuasion & Proof, Governments, Legislation, Interpretation, Breach, Anticipatory Repudiation, Contract Interpretation, Damages, Types of Damages, Liquidated Damages, Measurement of Damages, Foreseeable Damages, Lost Profits