Rittvo Investment Fund LLC 4 v. Pomp & Whimsy, Inc.
2:23-cv-00240
D. Nev.Jan 30, 2024Background
- Plaintiffs (Rittvo Investment Fund LLCs, Gastwirth Family Trust, and trustee Gastwirth) made a $400,000 line of credit to Pomp & Whimsy, Inc. for purchasing inventory and order fulfillment.
- The loan was secured with two personal guarantees from Nicola Nice, Todd Gallopo, and Nori-Ann De La Cruz, with guarantee limits of $62,500 and $150,000.
- Pomp admitted it breached the agreement and failed to repay the $400,000 principal plus interest.
- Pomp claimed its performance was excused by global supply chain disruptions, arguing impossibility or impracticability.
- The guarantors claimed that the second guaranty replaced the first, limiting their maximum liability to $150,000.
- Both parties moved for summary judgment on these issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excuse for Breach (Impossibility, etc.) | No unforeseeable event; breach clear | Performance excused by unforeseeable supply chain issues | No evidence to support impossibility; breach not excused |
| Scope of Guarantor Liability | Guaranties are cumulative ($212,500) | Second guaranty replaced the first ($150,000 cap) | Guaranties are cumulative, total liability is $212,500 |
| Impact of Amendment Language | Amendment describes guaranty as “additional” | Language doesn’t bind because not signed by guarantors | Agreements and context support reading guaranties together |
| Summary Judgment Standard | Entitled to judgment as a matter of law | Material facts in dispute; should go to jury | No genuine issue of material fact; summary judgment granted |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (party seeking summary judgment must show no genuine dispute)
- Helms Constr. & Dev. Co. v. State, ex rel. Dep’t of Highways, 634 P.2d 1224 (impossibility defense under Nevada law)
- Coast to Coast Demolition & Crushing, Inc. v. Real Equity Pursuit, LLC, 226 P.3d 605 (contract documents executed together are read together)
- Am. First Fed. Credit Union v. Soro, 359 P.3d 105 (Nevada contract interpretation principles)