Opinion
4:99CV3294
January 2, 2001.
MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT FARMLAND INDUSTRIES, INC.
This case comes before me on Motion for Summary Judgment by Defendant Farmland Industries, Inc. (hereinafter Farmland), filing 39. The plaintiff, Jisa Farms, Inc. (hereinafter Jisa Farms) filed this diversity action, alleging negligence (count three) and deceptive trade practices (count four). In moving for summary judgment, the defendant asserts the following: (1) the plaintiff's negligence claim is barred by the two-year statute of limitations for professional negligence actions, and (2) the plaintiff's deceptive trade practices claim does not state a viable cause of action under Nebraska law and is not supported by the evidence. After carefully reviewing the submissions by the parties, I find that the defendant's motion will be granted in part and denied in part.
I. Factual Background
The plaintiff, Jisa Farms, is a Nebraska corporation, apparently owned by David J. Jisa and his wife, Bonnie Jisa. See Complaint and Jury Demand ¶ 3, filing 1 ("Plaintiff Jisa Farms, Inc., is a Nebraska corporation. Its stock is owned by spouses David J. Jisa [sic]."). Located in Butler County, Jisa Farms is a commercial dairy engaged in the production of milk and fluid dairy products for profit. Id. ¶¶ 3, 5. At the time of the events giving rise to this action, the plaintiff's dairy herd consisted of approximately 300 grade Holstein cows, with around 235-250 cows in milk at all times. Id. ¶ 5.
The defendant Farmland is a corporation that operates in the United States as well as in other countries. See id. ¶ 7; Answer of Defendant Farmland Industries, Inc. to Plaintiff's Complaint ¶ 7, filing 3 (hereinafter Answer). In conjunction with its feed sale program, Farmland employs persons with expertise in nutritional consulting and ration formulation. See Answer ¶ 7. Such persons assist Farmland's customers in developing customized feed programs to meet individual dairy needs. Deposition of Kevin J. Ellis at 11:25-12:12 (Plf. Ex. 10); see Kevin J. Ellis Dairy Consulting Brochure at 2 (Def. Ex. G).
The defendant attached several exhibits, labeled exhibit A-L, in support of its motion for summary judgment. See filing 40. In opposing the defendant's motion, the plaintiff filed an Evidence Index, filing 44, which includes exhibits 1-21. The defendant, in support of its reply brief, filed several additional exhibits, labeled exhibit A-D. "Def. Ex. _" refers to those exhibits included in the defendant's first Index of Exhibits, filing 40. "Plf. Ex. _" refers to those exhibits in the plaintiff's Evidence Index, filing 44.
During the late summer of 1996, Kevin Ellis and Jeff Wheeler, Farmland employees, visited Jisa Farms and advised David Jisa of the superior benefits associated with the Farmland feed program. See Deposition of David Jisa at 56:8-12, 63:19-64:5 (Plf. Ex. 6). A short time later, Jisa Farms switched to the Farmland feed program, and Ellis, a dairy species specialist for Farmland, began advising David Jisa on nutritional and management matters. Deposition of Kevin J. Ellis at 11:17-12:6, 29:16-24, 48:11-19 (Plf. Ex. 10); Deposition of David Jisa at 89:8- 13 (Def. Ex. C). From September 1996 through April 1997, when Ellis relocated, Ellis visited Jisa Farms approximately once every two weeks and formulated feed rations for the Jisa Farms herd. Deposition of Kevin J. Ellis at 48:11-19, 49:8-9, 83:19-21 (Plf. Ex. 10, Def. Ex. B). In April 1997, Vaughn Studer, also a Farmland employee, started working with Jisa Farms, formulating its dairy feed rations until early summer 1997, at which point Ellis replaced Studer. Deposition of David Jisa at 89:14-90:10 (Def. Ex. C); Deposition of Kevin J. Ellis at 48:11-19, 83:14-84:11 (Plf. Ex. 10, Def. Ex. B). Ellis continued as Jisa Farms' nutritionist until approximately September 1997. Deposition of David Jisa at 71:20-72:7 (Def. Ex. C); Deposition of Kevin J. Ellis at 83:19-84:17 (Def. Ex. B).
David Jisa indicated that before he switched to Farmland feeds, he had used other nutritionists to help formulate rations for his dairy herd. Deposition of David Jisa at 39:25-40:5 (Plf. Ex. 6, Def. Ex. C).
In the beginning of 1997, David Jisa noticed problems with his health of his dairy herd. Deposition of David Jisa at 85:20-87:10, 199:10-200:7 (Def. Ex. C). Attributing these problems to the feed rations, Jisa initially discussed the matter with Ellis. Id. at 85:20-87:10, 139:24-143:10, 199:10-200:7 (Plf. Ex. 6, Def. Ex. C). Jisa also raised these concerns with Vaughn Studer. Id. at 141:12-143:10, 199:10-200:7 (Plf. Ex. 6, Def. Ex. C). Apparently unsatisfied with Farmland's response to his concerns, Jisa quit using Farmland's feed in September 1997, and, around the same time, informed Ellis that his services would no longer be needed at Jisa Farms. Id. at 71:20-72:3, 74:8-13, 74:24-75:7 (Def. Ex. C); Deposition of Kevin J. Ellis 84:15-82:2 (Def. Ex. B).
The plaintiff filed the present action on November 19, 1999, alleging the following: (1) that the defendant Farmland acted negligently in advising the plaintiff on nutritional issues and in formulating/preparing the plaintiff's feed rations, and (2) that the defendant Farmland engaged in deceptive trade practices. The defendant moved to dismiss the plaintiff's deceptive trade practices claim pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Nebraska's Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. §§ 87-301 to -306, permits only injunctive relief, a type of relief the plaintiff did not request in its complaint. See filing 11. In an order dated June 16, 2000, I denied the defendant's motion. Filing 25. The defendant then moved for summary judgment, arguing the following: (1) that the plaintiff's negligence claim is time barred, and (2) that the plaintiff's deceptive trade practices claim does not state a viable cause of action and is not supported by the evidence. Filing 39.
II. Standard of Review
A motion for summary judgment will be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "material" fact is one "that might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine" issue of material fact exists when there is sufficient evidence permitting a reasonable jury to return a verdict for the nonmoving party. Id. In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57 (citation omitted).
III. Discussion
a. Plaintiff's Negligence Claim
In its Motion for Summary Judgment, the defendant Farmland first argues that the plaintiff's negligence claim is time barred. According to Farmland, its nutritional consultants provide "professional services" within the meaning of Neb. Rev. Stat. § 25-222 (hereinafter § 25-222), which prescribes a two-year statute of limitations for professional negligence actions. The defendant contends that since the plaintiff did not file this action until November 15, 1999, more than two years after the plaintiff stopped utilizing Farmland's nutritional services, the negligence action is time barred. In response, the plaintiff argues that Farmland's nutritional consultants are not "professionals" and do not provide "professional services" as defined by the case law interpreting these terms. Thus, according to the plaintiff, this case is not governed by the truncated limitations period found in § 25-222. After reviewing the relevant authority, I agree with the plaintiff.
The issue of what statute of limitations applies in a particular case is a question of law. See Reinke Mfg. Co. v. Hayes, 590 N.W.2d 380, 388 (Neb. 1999). Section 25-222, a special statute of limitations applying to allegations of professional negligence, provides, in part, as follows:
Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. . . .
Neb. Rev. Stat. § 25-222 (emphasis in original); see also Larsen v. Mayo Med. Ctr., 218 F.3d 863, 866 (8th Cir. 2000), cert. denied, 121 S.Ct. 625 (2000) (recognizing that state substantive law, including the appropriate statute of limitations, applies in federal diversity actions). In interpreting this provision, the Nebraska Supreme Court first defined "professional services" as services "`arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.'" Swassing v. Baum, 240 N.W.2d 24, 27 (Neb. 1976) (quoting Marx v. Hartford Accident Indem. Co., 157 N.W.2d 870, 872 (1968)); see Taylor v. Karrer, 244 N.W.2d 201, 204 (Neb. 1976). Thus, to determine whether particular services are "professional" in nature, courts were advised to "look to the nature of the act itself and the circumstances under which it was performed." Swassing, 240 N.W.2d at 27. In applying this standard, the Nebraska Supreme Court concluded that accountants, architects, and engineers rendered professional services for purposes of § 25-222, as such occupations involve "predominantly mental or intellectual" endeavors, rather than "physical or manual" labors. See Lincoln Grain, Inc. v. Coopers Lybrand, 338 N.W.2d 594 (Neb. 1983); Witherspoon v. Sides Constr. Co., 362 N.W.2d 35 (Neb. 1985).
In Tylle v. Zoucha, 412 N.W.2d 438 (Neb. 1987), however, the Nebraska Supreme Court reexamined its analysis of what constitutes professional services. Concluding that its prior definition was too broad, the court turned to Webster's dictionary, which defines the term "profession" as follows:
[A] calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service. . . .Tylle, 412 N.W.2d at 440 (citing Webster's Third New International Dictionary, Unabridged 1811 (1981)). This language, according to the court "best defines a profession," in that it "stresses the long and intensive program of preparation to practice one's chose occupation traditionally associated only with professions," rather than the difference between manual and intellectual labor, and "does not rely on the mere possession of a license." Id. at 441.
In applying this definition, the Nebraska Supreme Court, in Georgetowne Ltd. Partnership v. Geotechnical Servs., Inc., 430 N.W.2d 34, 38 (Neb. 1988), held that a specialty engineering firm providing consulting services for all aspects of soils and foundations rendered professional services within the meaning of § 25-222. In so holding, the court noted that the individuals providing the services in question were "[r]egistered and licensed civil engineers . . . who had college degrees. . . ." Georgetown Ltd., 430 N.W.2d at 38. Accordingly, the court concluded that "[t]here can be no doubt that [the engineering firm] was rendering professional services as defined by this court." Id. Thus, in a later decision interpreting Georgetown Ltd., the Nebraska Supreme Court explained that "although we have not previously defined the parameters of the `long and intensive program of preparation' required by the Tylle definition, Georgetown Ltd. . . . indicates that a college degree embodies such characteristics and that licensing, although not dispositive, strongly indicates that an occupation is a profession." Jorgensen v. State Nat'l Bank Trust Co., 583 N.W.2d 331, 335 (Neb. 1998).
In this case, the defendant Farmland contends that its nutritional consultants, including Kevin Ellis and Vaughn Studer, were professionals, as defined by the Nebraska Supreme Court. In support of its claim, the defendants rely heavily on the fact that both individuals are college-educated: Ellis earned a bachelor of science degree in dairy management from Cornell University, and Studer received a bachelor of science degree in animal science from Kansas State University and a master of science degree in dairy cattle nutrition from the University of Wisconsin. Deposition of Kevin J. Ellis at 8:3-14, 46:12-15 (Def. Ex. B); Deposition of Vaughn Studer at 5:14-6:2 (Def. Ex. E). The defendant Farmland also notes that farmers regularly hire nutritional consultants to evaluate and select appropriate diets for their cows and that many universities offer bachelor degrees, as well as advanced degrees, in the specialized dairy nutrition field of study. Finally, Farmland also directs my attention to the following "admissions" by the plaintiff: (1) in his deposition, David Jisa repeatedly referred to nutritional consultants as "professionals" and "experts"; (2) in a deposition taken in another case, the plaintiff's own expert, Douglas Weich, indicated that he considers dairy nutritionists to be professionals; and (3) in a deposition taken in another case, Cecelia Dorn, a dairy nutritionist who submitted an affidavit in support of the plaintiff's opposition to the defendant's motion for summary judgment, stated that she considers herself to be a professional. Thus, for the reasons outlined above, Farmland contends that Ellis and Studer were professionals within the meaning of § 25-222. I disagree.
Farmland also refers to the educational qualifications of Clay A. Zimmerman, a senior dairy nutritionist employed by Farmland. See Deposition of Clay A. Zimmerman at 4:9-11 (Plf. Ex. 13). Zimmerman apparently reviewed the rations formulated by Ellis. See Deposition of Kevin J. Ellis at 52:8-56:10 (Plf. Ex. 10). Zimmerman has a bachelor of science degree in dairy science from Virginia Polytechnic Institute and State University, and a master of science and doctor of philosophy degree in nutrition from North Carolina State University. Curriculum Vitae of Clay A. Zimmerman at 1 (Def. Ex. L).
Initially, I note that whether an individual is a professional is an issue of law for the court, not an issue of fact that may be "admitted" by the parties. See, e.g., Jorgensen, 583 N.W.2d at 334 ("[W]hether or not [the defendant's] employees were professionals within the meaning of § 25-222 is an issue of law, not fact. A party cannot judicially admit conclusions of law in the pleadings-pleadings admit only facts"). But see John Day Co. v. Alvine Assocs., Inc., 510 N.W.2d 462, 466 (Neb. 1993) (considering the plaintiff's admission that the defendant was a professional in determining that a mechanical engineer provides professional services). Accordingly, while David Jisa may have referred to Ellis and Studer as "experts" and "professionals" in his deposition, these characterizations are not dispositive. Likewise, the fact that both Weich and Dorn consider themselves to be professionals is not dispositive. In determining whether § 25-222 applies to the facts of this case, I must therefore look beyond these "admissions" and apply the Nebraska Supreme Court's definition of the term "professional."
In applying this definition, I find that Ellis and Studer are not professionals and did not render professional services within the meaning of § 25-222. First, although Ellis and Studer are both college-educated, it does not appear that nutritional consultants are required to hold college degrees. In opposing the defendant's motion for summary judgment, the plaintiff submitted the affidavit of Cecelia Dorn, a dairy nutritionist who states that the "background, experience, education, and training of persons who hold themselves out as `dairy nutrition consultants' is [sic] varied." Affidavit of Cecelia Dorn ¶ 3 (Plf. Ex. 5). According to Dorn:
The defendant attempts to discredit Dorn's affidavit by submitting excerpts from Dorn's deposition taken in another case. See Motion for Leave to Supplement Farmland's Reply Brief in Support of Motion for Summary Judgment, filing 52. In this deposition, as noted above, Dorn states that she considers herself to be a "professional in the dairy consulting business." Id. at Ex. B, p. 106. However, even if Dorn considers herself to be a professional, this fact does not undermine her statement regarding the varied backgrounds of persons holding themselves out as nutritional consultants.
The array of persons offering nutritional advice to dairy farmers ranges from feed sales [persons] with no formalized training, except on the job exposure to feeds, to retired dairy farmers, to persons with farm background and dairying experience, to persons who hold graduate degrees, and even Ph.D. degrees, in dairy science.
Id. ¶ 4. The defendants have submitted no evidence to contradict these assertions. Given the lack of formal, uniform standards governing the education and/or training of persons holding themselves out as nutritional consultants, I do not believe that nutritional consulting can be characterized a "calling requiring specialized knowledge and often long and intensive preparation." See Tylle, 412 N.W.2d at 440; see also Jorgensen, 583 N.W.2d at 335 (suggesting that a college-degree requirement is the embodiment of a "long and intensive program of preparation"). Furthermore, nutritional consultants are not required to satisfy any credentialing or licencing requirements, and there is no evidence that nutritional consultants are subject to an ethical code enforced by a disciplinary system. See Tylle, 412 N.W.2d at 440; Jorgensen, 583 N.W.2d at 335. Finally, there is no evidence that the kind of work performed by the nutritional consultants in the instant case had, for its prime purpose, the rendering of a public service. See Tylle, 412 N.W.2d at 440; Jorgensen, 583 N.W.2d at 335. Thus, although Ellis and Studer are college-educated and were apparently urged to supplement their knowledge through Farmland's "Miniversity" and other programs, these factors are not enough to transform Farmland's nutritional consultants into professionals within the meaning of § 25-222. See Tylle, 412 N.W.2d at 440; Jorgensen, 583 N.W.2d at 335. I therefore find as a matter of law that the services provided by Kevin Ellis and Vaughn Studer were not professional in nature. Accordingly, Neb. Rev. Stat. § 25-222 does not bar the plaintiff's negligence claim.
B. Plaintiff's Deceptive Trade Practices Claim
In count four of its complaint, the plaintiff alleges that the defendant engaged in deceptive trade practices by making several false representations. The defendant Farmland, in its motion for summary judgment, argues that the plaintiff's deceptive trade practices claim does not state a viable cause of action and is not supported by the evidence. Filing 39. Repeating an argument that it made in its motion to dismiss, which I denied, the defendant again contends that the Uniform Deceptive Trade Practices Act of Nebraska does not permit a private cause of action for money damages. The defendant also argues that (1) no deceptive trade practices occurred in that some of the alleged misrepresentations were true, while others were mere "puffing," and (2) even if the defendant did engage in deceptive trade practices, David Jisa did not rely upon such practices. In response, the plaintiff Jisa Farms contends that count four of its complaint alleges a viable claim for fraudulent misrepresentation. By characterizing count four as "[a] straight-fraudulent misrepresentation claim," the plaintiff is abandoning Nebraska's Uniform Deceptive Trade Practices Act as a basis for recovery. See Plaintiff's Brief and Statement of Controverted Material Facts in Opposition to Defendant's Motion for Summary Judgment at 9, Jisa Farms, Inc. v. Farmland Indus., Inc., No. 4:99cv03294 (D.Neb.) [hereinafter Plaintiff's Brief]; see also id. at 10 ("Jisa now concedes § 87-303 will not permit recovery of attorneys fees here. While Farmland's advertising was false, and its conduct was fraudulent and deceptive, § 87-303 is no longer invalid, [sic] here, as the remedial statute."). In its reply brief, the defendant Farmland contends that count four of the plaintiff's complaint should be dismissed because (1) fraudulent misrepresentation was not sufficiently pleaded pursuant to Federal Rule of Civil Procedure 9(b), and (2) the plaintiff has failed to make an evidentiary showing sufficient to establish the existence of all elements essential to its fraudulent misrepresentation claim.
To resolve this motion, I must first address whether the plaintiff has sufficiently pleaded a claim for fraudulent misrepresentation in count four of its complaint. In order to maintain an action for fraudulent misrepresentation under Nebraska law, a plaintiff must allege and prove the following elements:
(1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that the plaintiff should rely upon it; (5) that the plaintiff reasonably did so rely; and (6) that the plaintiff suffered damage as a result.Foiles v. Midwest Street Rod Ass'n of Omaha, Inc., 578 N.W.2d 418, 422 (Neb. 1998) (citing Four R Cattle Co. v. Mullins, 570 N.W.2d 813 (Neb. 1997)). In federal court, plaintiffs alleging fraud must also comply with Federal Rule of Civil Procedure 9(b), which requires that "the circumstances constituting fraud . . . shall be stated with particularity." Fed.R.Civ.P. 9(b); see Roberts v. Francis, 128 F.3d 647, 650-51 (8th Cir. 1997) ("When a federal court hears a diversity case, although the court applies the applicable state substantive law, the Federal Rules of Civil Procedure generally govern." (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). The Eighth Circuit Court of Appeals has explained that "`[c]ircumstances' include such matters as the time, place and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby. . . . [C]onclusory allegations that a defendant's conduct was fraudulent and deceptive are not sufficient to satisfy the rule." Commercial Property Invs., Inc. v. Quality Inns Int'l, Inc., 61 F.3d 639, 644 (8th Cir. 1995) (citations omitted); Parnes v. Gateway 2000, Inc., 122 F.3d 539, 549 (8th Cir. 1997); see also Roberts, 128 F.3d at 651 n. 5 ("We do not hold that a plaintiff must show all of these factors under Rule 9(b) to plead fraud with sufficient particularity. A plaintiff must state enough so that his/her pleadings are not merely conclusory."). In addition, plaintiffs must also allege facts supporting their claim of reliance. See In re General Motors Corp. Anti-Lock Brake Prods. Liab. Litigation, 966 F. Supp. 1525, 1535 (E.D.Mo. 1997), aff'd, 172 F.3d 623 (8th Cir. 1999); see also Allison v. Security Ben. Life Ins. Co., 980 F.2d 1213, 1215-16 (8th Cir. 1992) ("The fraud allegations are inadequate under Fed.R.Civ.Proc. 9(b). They fail to state with particularity critical elements of fraud under Arkansas law — the actionable misrepresentations, how [the defendant] intended plaintiffs to act in reliance on each of the alleged misrepresentations, the nature of plaintiffs' justifiable reliance on each misrepresentation, and the damage resulting from such reliance." (citation omitted)].
According to the defendant, the plaintiff's complaint is deficient in that it fails to sufficiently plead reliance. I agree. The plaintiff, in its brief opposing the defendant's motion for summary judgment, admits that neither the term "rely" nor the term "reliance" can be found in count four. See Plaintiff's Brief at 9. Nevertheless, the plaintiff contends that the allegations included in paragraph 15 and 16 of count four are sufficient to plead reliance. Id. After reviewing these paragraphs, however, I do not see any factual allegations pertaining to reliance. Thus, the plaintiff's bare assertion in its brief that it did, indeed, rely on Farmland's alleged misrepresentations is simply not enough to satisfy the particularized pleading requirements of Rule 9(b). Accordingly, to the extent that the plaintiff's fourth claim for relief is based on a fraudulent misrepresentation theory, the defendant's motion for summary judgment will be granted. See Murr Plumbing, Inc. v. Scherer Brothers Fin. Srvs. Co., 48 F.3d 1066, 1068-69, 1071 (8th Cir. 1995) ("A district court may enter summary judgment dismissing a complaint alleging fraud if the complaint fails to satisfy the requirements of Rule 9(b)." (citation omitted)).
Furthermore, even if I were to construe the plaintiff's pleading as satisfying the requirements of Rule 9(b), the defendant would still be entitled to summary judgment on the deceptive trade practices claim. According to the United States Supreme Court:
[T]he plain language of [Federal] Rule [of Civil Procedure] 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp., 477 U.S. at 322-23. Here, the plaintiff has simply failed to establish the existence of reliance, an essential element to its fraudulent misrepresentation claim. In his deposition, David Jisa indicated that he switched to Farmland feeds not because of any alleged misrepresentations on the part of Farmland, but because of the following: (1) Farmland's feed product was cheaper than the feed product he had been using, and (2) he knew that Kevin Ellis, Farmland's nutritional consultant, had graduated from Cornell University, a school well-recognized for its dairy program. See Deposition of David Jisa at 45:5-18, 49:21-50:15, 51:12-52:7 (Plf. Ex. 6). Jisa's affidavit, submitted in opposition to the defendant's motion for summary judgment, also fails to establish reliance. Affidavit of David Jisa ¶ 2 (Plf. Ex. 2). In this affidavit, Jisa alleges the following: "Farmland's use of its `Proud To Be Farmer Owned' logo certainly misled and confused me. Had I known Farmland is not so owned, I would have approached the company differently and treated it like any other feed company." Id. These statements, however, provide little, if any, insight into whether Jisa would have elected to purchase Farmland feed and services in the absence of the alleged misrepresentations. See Luscher v. Empkey, 293 N.W.2d 866, 868 (Neb. 1980) ("The test of whether [a party] relied [on an alleged misrepresentation] is generally whether he would have acted in the absence of the representations. If he would have acted in the same way even in the absence of the representation, then he has not relied thereon."). Thus, because the plaintiff has failed to produce sufficient evidence establishing the existence of reliance, its deceptive trade practices claim must fail. Accordingly, for the reasons outlined above, the defendant's motion for summary judgment will be granted as to the plaintiff's fourth claim for relief.
IT IS ORDERED THAT the Motion for Summary Judgment by Defendant Farmland Industries, Inc., filing 39, is denied as to count three of the plaintiff's complaint, and granted as to count four of the plaintiff's complaint.