MHF Opco, LLC v. MusclePharm Corporation et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MHF OPCO, LLC,
Plaintiff,
v.
RYAN CHARLES DREXLER,
Defendant.
OPINION AND ORDER
22-cv-707-wmc
Plaintiff MHF Opco, LLC, claims that defendant Ryan Charles Drexler owes it over
$3 million under the terms of his personal guaranty on the debts of MusclePharm
Corporation. (Dkt. #18.) Plaintiff seeks to enforce the personal guaranty executed by
defendant and has filed motion for summary judgment on its claim for the amount owed,
plus interest and attorney’s fees. (Dkt. #54.) Defendant, who disputes that plaintiff has
standing to enforce the personal guaranty and, alternatively, denies that he signed it, has
filed a motion for partial summary judgment to exclude interest and attorney’s fees from
the amount sought by plaintiff. (Dkt. #60.) For the reasons set forth below, plaintiff’s
motion for summary judgment will be granted and defendant’s motion will be denied.
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UNDISPUTED FACTS1
In June 2022, MHF Opco, LLC (“Opco”), which is a Texas-based limited liability
company, acquired all assets, debts, and other obligations owned by Mill Haven Foods
(“Mill Haven”), a Wisconsin-based food products company. Prior to the acquisition, Mill
Haven had sold a substantial quantity of dry dairy protein powder -- for which it had not
been paid -- to MusclePharm Corporation (“MusclePharm”), a Nevada-based manufacturer
of sports nutrition products and nutritional supplements. (Dkt. #1, ¶ 1.) In addition to
owning more than 50% of MusclePharm, Drexler claims to have himself loaned between
$10 and 50 million to that corporation.
Before Mill Haven began doing business with MusclePharm, Mill Haven Chief
Executive Officer Brian Slater flew to its office in Burbank, California, to meet with
Drexler, who was then MusclePharm’s Chairman of the Board and Chief Executive Officer.
During that meeting, which occurred in 2019, Slater expressed reservations about
MusclePharm’s ability to pay for product in light of the volume Drexler was seeking to
purchase and concerns with the company’s finances. Specifically, Slater knew from
discussions with other suppliers in the industry and MusclePharm representatives, as well
1 Unless otherwise noted, the following facts are drawn from the parties’ proposed findings of
fact and are viewed in the light most favorable to defendant Drexler. Waukegan Potawatomi
Casino, LLC v. City of Waukegan, 128 F.4th 871, 873 (7th Cir. 2025). However, to the extent
that defendant has not disputed facts proposed by plaintiff in a manner consistent with Fed.
R. Civ. P. 56(c) and the court’s procedures on summary judgment, the court treats those facts
as undisputed. Preliminary Pretrial Packet (dkt. #48) Summary Judgment Procedures, §§ I(C),
II(C)-(E); see also Allen-Noll v. Madison Area Tech. College, 969 F.3d 343, 348 (7th Cir. 2020)
(District courts may require exact compliance with their local rules, including local rules
governing summary judgment.).
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as reviewing Securities and Exchange Commission 10-Ks and other sources, that
MusclePharm was having difficulty paying its debts. Slater also knew that MusclePharm’s
accounts receivables would accrue quickly given the large volume of product Drexler was
seeking.
As CEO of Mill Haven, therefore, Slater refused to enter into an agreement to sell
protein powder to MusclePharm in large quantities unless Drexler provided a personal
guaranty. Slater also communicated this to Drexler and MusclePharm Chief Operating
Officer Alberto Andrade. More specifically, Slater explained to them that he would not
enter into an agreement to sell protein powder to MusclePharm in significant volumes at
favorable prices unless he was provided some form of collateral. Accordingly, on August
19, 2019, Slater emailed Andrade requesting a personal guaranty from Drexler. Andrade
responded by email the following day, instructing Slater to send him a document with the
requested language. Next, Mill Haven Chief Operating Officer Larry Erbs emailed Andrade
with a copy of the personal guaranty that Slater discussed having Drexler sign. After Erbs
and Andrade then traded emails on September 3, 2019, Erbs again emailed Andrade a copy
of the personal guaranty for Drexler’s signature, along with an Agreement providing Terms
and Conditions of Sale (the “Sales Agreement”) between Mill Haven as seller and
MusclePharm as buyer.
On September 4, 2019, MusclePharm Senior Supply Chain Manager Aaron Hackel
further emailed Slater a purchase order for protein powder at a price that Andrade had
negotiated with Slater. That same day, Slater responded that he would still need the
personal guaranty from Drexler before filling the order. On September 6, 2019, Andrade
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emailed Slater, advising him that he was “wrapping up PG as we speak with the lawyers.”
Slater understood “PG” to mean Drexler’s personal guaranty. Finally, on September 6,
Andrade went into Drexler’s office to have him sign the personal guaranty. Andrade
watched Drexler sign the personal guaranty, then took the document back to his office,
where he scanned it and emailed it to Slater, along with the Sales Agreement between Mill
Haven and MusclePharm.
A copy of the personal guaranty bearing Drexler’s signature (the “Personal
Guaranty” or “Guaranty”) is attached to Opco’s amended complaint as part of the Sales
Agreement between Mill Haven and MusclePharm. (Dkt. #18-2.) Under its express terms,
Drexler, as “Guarantor,” unconditionally guaranteed payment of the purchase price or
“Guaranteed Amounts” for “Deliverables,” defined as products sold by Mill Haven to
MusclePharm in accordance with the attached Sales Agreement, along with interest “added
to all amounts outstanding more than thirty (30) days after the invoice date at the rate of
1.5% per month or the maximum rate of interest allowed by applicable law, whichever is
lower.” (Id. at 6, 7.) In addition, the Personal Guaranty calls for payment of attorney’s
fees, which “absolutely and unconditionally guarantees Mill Haven . . . payment, on
demand by Mill Haven, of all reasonable legal and other costs, expenses and fees at any
time paid or incurred by Mill Haven in endeavoring to enforce any right under . . . this
Guaranty.” (Id.) The Personal Guaranty further explains that it “is a continuing guaranty
and shall remain in full force and effect so long as MusclePharm owes Mill Haven, or its
assigns, any purchase price for Deliverables[.]” (Id.) The Personal Guaranty also
emphasizes, in bold and all capital letters, as follows: “THIS IS AN AGREEMENT TO
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GUARANTY THE PAYMENT OF A DEBT OF ANOTHER.” (Id. at 9 (emphasis in
original).)
After September 6, 2019, whenever MusclePharm wished to purchase product from
Mill Haven, it would complete and tender a purchase order. Upon receipt of
MusclePharm’s purchase order, Mill Haven would then generate a “sales contract” that
described the commodity, quantity, pricing information, pickup information, shipment
method, and payment terms. Each such sales contract would also expressly incorporate
the Sales Agreement between Mill Haven and MusclePharm. Still, on multiple occasions,
Slater refused to ship product that MusclePharm had ordered from Mill Haven because
MusclePharm was not paying in full when due. Slater contends that in several such
instances Drexler would then call to ask him to release additional product to MusclePharm,
emphasizing that since he had signed the Personal Guaranty, Mill Haven would be made
whole if MusclePharm did not pay.
Between December 2021 and June 2022, Mill Haven proceeded to sell and deliver
more than $3 million in dry dairy powders to MusclePharm as confirmed by
contemporaneous recordkeeping.2 In June 2022, Opco acquired all of Mill Haven’s assets,
debts, and other obligations under the terms of an Asset Purchase and Contribution
Agreement (“APA”), which defines “Mill Haven Assets” to include “all Accounts
2 Copies of MusclePharm’s purchase orders, unpaid sales contracts and invoices are attached
to the amended complaint. (Dkt. #18-3, #18-4, #18-5.)
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Receivable.” (Slater Decl. Ex. 1 APA (dkt. #56-1) 23-24.) Further, “Accounts Receivable”
is defined in the APA to include:
(i) all trade accounts receivable and other rights to payment from
customers and the full benefit of all security for such accounts or rights
to payment, including all trade accounts receivable representing amounts
receivable in respect of goods shipped or products sold or services rendered
to customers, (ii) all other accounts or notes receivable and the full benefit
of all security for such accounts or notes, and (iii) any claim, remedy or
other right relating to any of the foregoing.
(Id.)(emphasis added). Opco also acquired from Mill Haven “all rights to any Actions of
any nature . . . whether arising by way of counterclaim or otherwise.” (Id.) The APA
defines an “Action” to include “any claim, action, cause of action, demand, lawsuit,
arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons,
subpoena or investigation of any nature, regardless of whether civil, criminal,
administrative, regulatory or otherwise, at law or in equity, formal or informal, or public
or private.” (Id.) As part of the acquisition, Mill Haven’s CEO Slater also became CEO of
Opco. (Slater Decl. (dkt. #56) ¶ 3.)
As of November 29, 2022, Mill Haven’s “Aged Receivables” included over $3
million for product that had been sold and delivered to MusclePharm. On December 13,
2022, Opco filed this lawsuit against both MusclePharm and Drexler as its Guarantor,
asserting claims for breach of contract and unjust enrichment. (Dkt. #1, at 9-13 ¶¶ 53-
84.) Opco sought actual damages on behalf of Mill Haven in an amount greater than $3
million, jointly and severally from both defendants, in addition to interest and costs of
suit, including attorney’s fees. (Id. at 13.) Two days later MusclePharm filed a petition
for relief under Chapter 11 of the Bankruptcy Code in Case No. 22-14422-nmc in the
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United States Bankruptcy Court for the District of Nevada.3 (Dkt. #7.) Subsequently,
Opco filed an amended complaint, dropping MusclePharm as a defendant due to its
bankruptcy, which remains pending, while continuing to maintain its claims against
Drexler under the term of his Personal Guaranty. (Dkt. #18.)
OPINION
Plaintiff seeks summary judgment on its claim against defendant Drexler for breach
of his Personal Guaranty to pay MusclePharm’s debt for product sold and delivered by
Mill Haven. Specifically, plaintiff seeks the amount of $3,374.521.75 for the cost of
products that defendant failed to pay for, plus $2,260.123.73 in interest under the terms
of the contract,4 for a total of $5,634,6456.48, plus reasonable attorney fees and costs of
suit. (Dkt. #66, at 20; Vanden Heuvel Decl. (dkt. #58) ¶¶ 7-11.) In opposition, defendant
argues that plaintiff lacks standing to enforce the Personal Guaranty for payment of
product sold by Mill Haven and, despite overwhelming evidence to the contrary, denies
that he signed it. Assuming that he is liable, defendant also cross-moves for partial
summary judgment as to the actual amount he owes, arguing that the damages recoverable
under the Personal Guaranty do not include interest, attorney’s fees or other costs despite
its express terms to the contrary.
3 The bankruptcy case involving MusclePharm remains pending at this time.
4 The amount of interest was calculated as of February 17, 2025. (Dkt. #66, at 20; Vanden
Heuvel Decl. (dkt. #58) ¶ 4.)
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Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Thus, as the Seventh Circuit has frequently observed, summary
judgment is a “put up or shut up” moment for the parties in suit. Ellison v. United States
Postal Svc., 84 F.4th 750, 759 (7th Cir. 2023). In particular, once a party has proffered a
properly supported motion for summary judgment, the nonmovant “must go beyond the
pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on
file) to demonstrate that there is evidence upon which a jury could properly proceed to
[reach] a verdict in [his] favor.” Burton v. Kohn Law Firm, S.C., 934 F.3d 572, 579 (7th
Cir. 2019) (citation and internal quotation marks omitted). More specifically, to survive
summary judgment, the nonmoving party must do more than simply show that there is
some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). Thus, the mere existence of a scintilla of evidence in
support of the nonmoving party’s position will be insufficient to survive a summary
judgment motion; there must be evidence on which the jury could reasonably find in favor
of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
While the court views the evidence “in the light most favorable to the nonmovant
and constru[es] all reasonable inferences from the evidence in his favor,” Moore v. Western
Ill. Corr. Ctr., 89 F.4th 582, 590 (7th Cir. 2023), a nonmovant is only entitled to
reasonable inferences that are supported by admissible evidence, not by mere speculation
or conjecture. Grant v. Trustees of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017). Similarly,
facts need only be taken in the light most favorable to the nonmoving party where there is
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a “genuine” dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). “When
opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.” Id.
I. Plaintiff’s Breach of Contract Claim
The parties agree that Wisconsin law applies to the contract at issue -- here, the
Personal Guaranty that Slater required defendant Drexler to sign before Mill Haven would
sell any of its products to MusclePharm. To prove breach of contract, plaintiff must show
(1) the existence of a contract between the plaintiff and the defendant; (2) breach of that
contract; and (3) damages. Pines Bach, LLP v. Mills, No. 22-cv-66-jdp, 2023 WL 6847118,
at *2 (W.D. Wis. Oct. 17, 2023) (citing Pagoudis v. Keidl, 2023 WI 27, ¶ 12, 406 Wis. 2d
542, 554, 988 N.W.2d 606, 612).
At summary judgment, plaintiff has submitted uncontested evidence that Mill
Haven sold large quantities of dry dairy powder to MusclePharm contingent upon
defendant Drexler first executing a Personal Guaranty for payment of those products.
(Slater Decl. (dkt. #56) ¶¶ 23-24; Andrade Dep. (dkt. #53) 23:24–24:14.) Further, under
the express terms of the Personal Guaranty, which bears his signature, defendant agreed to
pay Mill Haven for all products delivered to MusclePharm, including interest, legal fees
and costs incurred in enforcing the guaranty. (Dkt. #18-2, at 7-9.) Moreover, the Personal
Guaranty remains in effect so long as MusclePharm owes Mill Haven “or its assigns” any
unpaid amount, which “shall inure to the benefit of Mill Haven and its successors and
assigns.” (Id. at 7 (emphasis added).) Further, since all of Mill Haven’s Accounts
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Receivables were legally assigned to plaintiff Opco under the terms of the APA as part of
the June 2022 acquisition, along with the right to pursue collection by any legal action,
plaintiff proffers additional, undisputed evidence establishing damages due to defendant’s
breach of contract in the amount of $3,374,521.75 for the cost of goods that MusclePharm
has failed to pay, plus $2,260,123.73 in pre-judgment interest as of February 17, 2025, as
well as reasonable attorney fees and costs in suit as yet to be determined. (Slater Decl.
(dkt. #56) ¶ 39; Vanden Heuvel Decl. (dkt. #58) ¶¶ 7-11.)
In turn, defendant does not (and cannot) dispute that he has failed to honor the
Personal Guaranty and, therefore, is in breach of that contract. Rather, defendant argues
that plaintiff’s contract claim fails because plaintiff did not acquire Mill Haven’s right to
enforce the Personal Guaranty upon acquiring Mill Haven’s assets in June 2022, and even
if it did, he now denies signing it. Both arguments fail at summary judgment for reasons
discussed below.
A. Opco’s Acquisition of Mill Haven’s Assets
As for defendant’s assertions that the Personal Guaranty was not assigned to
plaintiff Opco in acquiring Mill Haven’s assets in June 2022 or that plaintiff lacks standing
to enforce it, the express terms of plaintiff’s APA states otherwise. Nevertheless, in support,
defendant notes that Section 2.01 of the APA lists “Assigned Contracts” and “Excluded
Contracts” included in the acquisition of Mill Haven’s assets. “Contracts” are broadly
defined in Section 1.01 of the APA to include, inter alia, leases, deeds, mortgages, and other
“agreements, commitments and legally binding instruments, whether written or oral.”
(Slater Decl. Ex. 1 APA (dkt. #56-1) 11.) Because the Personal Guaranty is not among
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the 64 Assigned Contracts acquired by plaintiff from Mill Haven, defendant reasons that
it is an “Excluded Contract” that confers no rights on plaintiff.
Why this should be so is far from clear. Regardless, as plaintiff points out, the
Personal Guaranty also expressly secures payment for goods sold and delivered by Mill
Haven to MusclePharm under the Sales Agreement, which falls squarely and
unambiguously under the APA’s definition of “Mill Haven Assets” as set forth above,
including “all Accounts Receivable.” (Slater Decl. Ex. 1 APA (dkt. #56-1) 23.) As also
noted above, “Accounts Receivable” is defined in the APA to include all “trade accounts
receivable and other rights to payment from customers and the full benefit of all security
for such accounts or rights to payment . . . [for] goods shipped or products sold . . . to
customers[.]” (Id. at 8.) That definition further extends to “the full benefit of all security
for such accounts or notes” and “any claim, remedy or other right relating to the foregoing.”
(Id.) Therefore, plaintiff argues that the terms of the APA clearly and unambiguously
assigned defendant’s obligation to make good on Account Receivables under Mill Haven’s
Personal Guaranty as an asset.
To begin, the construction of a contract is a question of law in Wisconsin. Elkhart
Lake’s Road Amer. Inc. v. Chicago Hist. Races, Ltd., 158 F.3d 970, 972 (7th Cir. 1998). The
primary purpose of that construction is to determine and give effect to the parties’
intentions as expressed in the contractual language. Seitzinger v. Community Health Network,
2004 WI 28, ¶ 22, 270 Wis. 2d 1, 676 N.W.2d 426. Language in a business contract in
particular is construed in the manner in which it would be understood “by persons in the
business to which the contract relates.” Ash Park, LLC v. Alexander & Bishop, Ltd., 2015
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WI 65, ¶ 37, 363 Wis. 2d 699, 866 N.W.2d 679. Interpretations that give reasonable
meaning to each provision in the contract are preferred over interpretations that render a
portion of the contract superfluous. Id. And the court is required to interpret the contract
in a way that avoids absurd results. Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518, 525
(7th Cir. 2008) (citing Kabes v. Sch. Dist. of River Falls, 2004 WI App 55, ¶ 11, 270 Wis.
2d 502, 677 N.W.2d 667).
Moreover, “[w]here the terms of a contract are clear and unambiguous, [Wisconsin
courts] construe the contract according to its literal terms.” Tufail v. Midwest Hosp., LLC,
2013 WI 62, ¶ 26, 348 Wis. 2d 631, 833 N.W.2d 586. This is so because courts are to
“presume the parties’ intent is evidenced by the words they chose, if those words are
unambiguous.” Id. Whether the contract’s language is “ambiguous” is also a question of
law in Wisconsin, meaning that the court must determine if the terms of the contract “are
reasonably or fairly susceptible of more than one construction.” Borchardt v. Wilk, 156
Wis. 2d 420, 427, 456 N.W.2d 653 (1990). “If the terms of the contract are ambiguous,
evidence extrinsic to the contract itself may be used to determine the parties’ intent.”
Tufail, 2013 WI 62, ¶ 27.
Although defendant attempts to question whether the parties intended to assign the
Personal Guaranty for payment of MusclePharm’s substantial debt to plaintiff under the
terms of the APA, his arguments are not persuasive and there is nothing unambiguous
about the contractual language, nor about the fact that defendant’s obligation to pay a
debt had ripened and was outstanding well before the APA was even executed. “Contracts
are generally assignable as long as the assignment does not materially change the duties or
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risks of the debtor, and as long as assignment is not prohibited by statute, public policy, or
language within the contract itself.” Clearpointe Capital, Inc. v. Townsend, 2004 WI App 149,
¶ 8, 275 Wis. 2d 878, 685 N.W.2d 172 (citing J.G. Wentworth S.S.C. Ltd. P’Ship v.
Callahan, 2002 WI App 183, ¶ 9, 256 Wis.2d 807, 649 N.W.2d 694); see also Anthony S.
Baish, et al., II Contract Law in Wisconsin § 9.5 (6th ed. 2025) (“As a general proposition,
the modern common law holds that contractual rights can be assigned.”). For this reason,
formal language is not essential to create a valid assignment. Riegleman v. Krieg, 2004 WI
App 85, ¶ 34, 271 Wis. 2d 798, 679 N.W.2d 857.
Here, the court has little trouble concluding that plaintiff Opco and Mill Haven, as
the parties to the APA, assigned outstanding debts like those owed by defendant under the
Personal Guaranty. First, the Guarantee is at minimum properly deemed a “security” or
“right to payment” held by Mill Haven for products sold to a customer (MusclePharm),
and duly assigned to plaintiff under the specific definition of Accounts Receivable as a
“claim, remedy, or right” relating to security for those products. Mill Haven’s claim in this
lawsuit against defendant Drexler for breach of that Personal Guaranty likewise qualifies
as an “Action” that was also assigned to plaintiff as a Mill Haven Assets under the APA.
Not only does the assignment of this debt not materially change the duties or risks of
plaintiff, but any other interpretation would be absurd on its face as between Mill Haven
and Opco. Foskett, 518 F.3d at 525. Because the terms of the APA are unambiguous,
defendant has failed to establish as a matter of law that plaintiff was not assigned Mill
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Haven’s rights under the Personal Guaranty or that it lacks standing to enforce the Personal
Guaranty as one of the Mill Haven Assets acquired.5
B. Defendant’s Signature
Defendant also testified at his deposition in January 2025 that he did not sign the
Personal Guaranty and had “no insight” as to who did. (Drexler Dep. (dkt. #52) 95:25–
96:1, 97:6-8.) Defendant then submitted a declaration, again denying under penalty of
perjury that his signature was not on the document. (Drexler Decl. Feb. 4, 2025 (dkt.
#82) ¶ 6.)
Plaintiff argues that defendant’s self-serving, later denial is contradicted by
overwhelming evidence in the record, showing that Slater negotiated the Personal
Guaranty with Drexler and Andrade at arm’s length. (Slater Decl. (dkt. #56) 24; Andrade
Dep. (dkt. #53) 26:23–27:11.) Indeed, even defendant does not dispute that Mill Haven’s
CEO Slater insisted upon defendant signing the Personal Guaranty as a condition of its doing
business with MusclePharm, as attested to by both Slater and Andrade. (Slater Decl. (dkt.
#56) ¶¶ 23-24; Andrade Dep. (dkt. #53) 23:24–24:14.) Andrade also testified he witnessed
defendant putting pen to paper and signing the Personal Guaranty at MusclePharm’s
Burbank office in the presence of two other members of MusclePharm’s board of directors.
(Andrade Dep. (dkt. #53) 26:23–29:17.) Andrade then returned it to Slater, along with
5 To the extent that the APA could be considered ambiguous, plaintiff has also provided
declarations from executives on both sides of the APA transaction who attest that they
understood and intended that the APA assign the breach-of-contract claim against Drexler from
Mill Haven to Opco. (Slater Decl. (dkt. #56) ¶ 17; Redmond Decl. (dkt. #59) ¶ 11.)
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the Sales Agreement for Mill Haven products. (Id. at 28:5-7.) Moreover, after receiving
defendant’s Personal Guaranty, Mill Haven sold and delivered a substantial amount of
product to MusclePharm. (Dkt. #18-5.) Fourth, plaintiff presents additional
documentation in the form of email correspondence from Slater to defendant when
MusclePharm fell into arrears, referencing the Personal Guaranty without contradiction.
(Slater Decl. Ex. 11 Email dated Sept. 21, 2021 (dkt. #56-11) 2; Slater Decl. Ex. 12 Emails
dated Oct. 5 and Oct. 7 (dkt. #56-12) 2-3.)
Although defendant now disputes that he spoke to Slater about the Personal
Guaranty (or knew anything about it), plaintiff contends the late denials at his deposition
testimony and in a subsequent declaration do not raise a genuine fact issue for several
reasons. Principally, plaintiff argues that defendant has made judicial admissions that
overcome his more recent claim not to have signed his Personal Guaranty. “Judicial
admissions are formal concessions in the pleadings, or stipulations by a party or its counsel,
that are binding upon the party making them.” Keller v. United States, 58 F.3d 1194, 1198
n. 8 (7th Cir. 1995). In addition to statements in a party’s pleadings, “[a]ny ‘deliberate,
clear and unequivocal’ statement, either written or oral, made in the course of judicial
proceedings qualifies as a judicial admission.” In re Lefkas Gen. Partners No. 1017, 153 B.R.
804, 807 (N.D. Ill. 1993) (quoting Matter of Corland Corp., 967 F.2d 1069, 1074 (5th Cir.
1992)); see also McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 680 (7th Cir. 2002) (quoting
Lefkas). “A judicial admission is conclusive, unless the court allows it to be withdrawn;
ordinary evidentiary admissions, in contrast, may be controverted or explained by the
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party.” Keller, 58 F.3d at 1198 n. 8 (quoting John William Strong, McCormick on Evidence
§ 254 at 142 (1992)).
Plaintiff argues that defendant’s recent denials are inconsistent with his material
admissions and omissions previously in this lawsuit. Specifically, in a declaration filed
shortly after this lawsuit was filed, defendant did not deny signing the Personal Guaranty,
asserting instead that he “[did] not recall” signing it. (Drexler Decl. March 8, 2023 (dkt.
#21) ¶ 4.) Similarly, in his formal answer to plaintiff’s complaint, defendant did not
expressly deny that he signed the Personal Guaranty, stating that he “lack[ed] knowledge
or information sufficient to form a belief” as to the whether he signed it. (Dkt. #23, ¶¶
28, 60.) Further, in response to an interrogatory request, defendant again stated that he
lacked information -- such as “expert analysis” -- from which to confirm or deny whether
he signed it. (Hollander Decl. Ex. 6 (dkt. #55-6) Response to Interrogatory No. 7.)
Generally speaking, the Seventh Circuit does not permit a party who has asserted a
lack of recollection or disclaimed knowledge of a certain subject to create an issue of fact
with a subsequent, contradictory statement, at least without some satisfactory explanation
for such a self-serving reversal. Buckner v. Sam’s Club, Inc., 75 F.3d 290, 292-93 (7th Cir.
1996); Unterreiner v. Volkswagen of Amer., Inc., 8 F.3d 1206, 1211 (7th Cir. 1993). Even
statements that are not directly contradictory may be excluded under this rule. Hickey v.
Protective Life Corp., 988 F.3d 380, 389-90 (7th Cir. 2021). Because defendant’s
unequivocal, repeated denials of having signed his Personal Guaranty contradicts his
previous statements based on a lack of recollection, those denials cannot be used to
manufacture a factual dispute. Indeed, as plaintiff argues, defendant’s professed certainty
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in later deposition testimony and subsequent declaration after previously professing a lack
of recollection or knowledge, may also be disregarded under the “sham-affidavit” rule,
which authorizes a judge to disregard an affidavit that attempts to create a factual issue
capable of defeating summary judgment by contradicting the same affiant’s prior sworn
statements. James v. Hale, 959 F.3d 307, 316-17 (7th Cir. 2020). Courts have further
extended this rule’s application to contradictory statements made in a so-called “sham-
deposition.” Woods v. Fermaint, No. 10 C 3853, 2012 WL 3581177, at *4 (N.D. Ill. Aug.
17, 2012); see also Israel v. John Crane, Inc., 601 F. Supp. 3d 1259, 1271 (M.D. Fla. 2022)
(disregarding portions of the plaintiff’s deposition testimony that contradicted his
interrogatory response and concluding further that the remaining deposition testimony was
insufficient to avoid summary judgment) (citations omitted).
While these rules precluding abandonment of previous positions held in formal
pleadings or sworn affidavits or testimony are not to be applied lightly, their application is
nevertheless appropriate “to weed out unfounded claims, specious denials, and sham
defenses,” and particularly to prevent parties from conjuring up a factual dispute “out of
nothing” to thwart summary judgment. James, 959 F.3d at 316 (citation and internal
quotation omitted). Moreover, to the extent that defendant stated previously in his
interrogatory response that he needed an expert to confirm whether he signed the Personal
Guaranty (since he did not recall doing so), plaintiff is right to point out that defendant
has disclosed no such expert. Nor has the defendant mustered any other evidence to
support his newly minted claim that the signature on the Personal Guaranty is not his. In
fact, since the Personal Guaranty bearing defendant’s signature is at the very heart of
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plaintiff’s breach-of-contract claim, defendant’s unexplained recall is, if not wholly suspect
at best, implausible, especially given defendant’s admitted failure at his deposition to “call
anyone” or “do anything” to investigate who could have signed the Personal Guaranty
despite more than $3 million in unpaid invoices being at stake. (Drexler Dep. (dkt. #52)
97:2–98:5.) Indeed, defendant has offered no explanation why, at the start of this lawsuit
he would have pleaded and professed a lack of recollection or knowledge, only to change
course two years later at his deposition, much less adamantly deny signing it.
This leads to plaintiff’s final and most compelling argument regarding the
contradictory nature of defendant’s claim that the signature on the Personal Guaranty is
not his: defendant’s more recent testimony is simply incredible as a matter of law in light
of the undisputed evidence showing that Slater insisted on obtaining defendant’s Personal
Guaranty as a prerequisite to selling MusclePharm any of Mill Haven’s goods and Andrade
witnessed defendant sign. Alongside the rest of the evidence in the record, which
overwhelmingly shows that defendant did sign the Personal Guaranty and that Mill Haven
sold and delivered more than $3 million worth of product in reliance upon it.
“If a party’s sworn statements are ‘utterly implausible in light of all relevant
circumstances,’ a court may reject them without a trial.” Whitaker v. Dempsey, 144 F.4th
908, 917 (7th Cir. 2025) (quoting In re Chavin, 150 F.3d 726, 728 (7th Cir. 1998)
(affirming summary judgment denying bankruptcy discharge where debtor had defrauded
creditors; despite debtor’s sworn denial of fraudulent intent, no reasonable person could
believe his stated reasons for his false representations and omissions)). Because courts are
typically prohibited from weighing evidence or making credibility determinations on
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summary judgment, Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000), the
“narrow” exception for utter implausibility is available only in exceptional cases to avoid
trespassing on the province of the jury, whose role is to decide genuine fact issues.
Whitaker, 144 F.4th at 917. However, the Seventh Circuit has suggested that the exception
is most applicable in sham affidavit cases or cases in which a party’s inconsistent and
contradictory statements transcend credibility concerns and go to the heart of whether the
party has raised genuine issues of material fact for a jury to decide. Id.
This is just such a case. Having provided no explanation for his inconsistent
statements regarding the Personal Guaranty that Slater had insisted upon, his own
company’s COO Andrade having witnessed defendant sign, and Mill Haven having refused
to ship goods until being provided with defendant’s signed Personal Guaranty, Slater and
his company had every right to rely on it in selling any products to MusclePharm, much
less continue to deliver those products when MusclePharm fell behind on its payments
based in substantial part on defendant’s assurances of personal liability.
“Courts are not compelled to treat as true an assertion in a party’s deposition or
affidavit that is plainly false when considered alongside the rest of the record.” Whitaker,
144 F.4th at 919. Thus, the bare assertion in defendant’s deposition or later affidavit is
utterly implausible as a matter of law and cannot defeat an otherwise properly supported
summary judgment motion. FKFJ, Inc. v. Village of Worth, 11 F.4th 574, 585 (7th Cir.
2021). Because the factual dispute about defendant’s signature is not genuine, the court
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concludes that plaintiff is entitled to summary judgment on its breach of contract claim
and that defendant is liable under the Personal Guaranty.
II. Recovery of Interest and Attorney’s Fees
Having so ruled, the court must also consider defendant’s motion for partial
summary judgment, based on his contention that any liability under the Personal Guaranty
should be limited solely to the actual purchase price of product sold by Mill Haven to
MusclePharm, and not included prejudgment interest or attorney’s fees.6 As explained
above, the Personal Guaranty expressly requires the guarantor (defendant Drexler) to pay
the “amounts for Deliverables” that are “due in accordance with the Terms of Conditions”
found in the Sales Agreement (i.e., the “purchase price for the Deliverables” or the
“Guaranteed Amounts”). (Dkt. #18-2, at 7.) As incorporated by reference in the Personal
Guaranty, the Sales Agreement in turn defines “Deliverables” as the goods sold by Mill
Haven to MusclePharm. (Id. at 6.) That Agreement also states that “[i]nterest will be
added to all amounts outstanding more than thirty (30) days after the invoice date at the
rate of 1.5% per month or the maximum rate of interest allowed by applicable law.” (Id.)
“[R]elated documents are usually read together to ascertain the scope of the parties’
agreement.” Little Chute Area Sch. Dist. v. Wis. Educ. Ass’n Council, 2017 WI App 11, ¶ 31,
373 Wis. 2d 668, 892 N.W.2d 312 (citation omitted). Here, there is no material dispute
that the Sales Agreement is a document that was executed at the same time and
6 Defendant also repeats his now rejected argument that plaintiff cannot enforce the guaranty
because it was not acquired as part of the purchase of Mill Haven’s assets. (Dkt. #61, at 5-6.)
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incorporated by reference in the Personal Guaranty. Thus, by agreeing to pay for all
Deliverables in accordance with the Sales Agreement, defendant also agreed to pay interest
on the outstanding amounts for the applicable goods starting 30 days from the invoice
date. (Dkt. #18-2, at 6.) So, too, by signing the Personal Guaranty (or at the very least
being bound by it given plaintiffs reasonable reliance on its terms), defendant bound
himself to pay MusclePharm’s debt if the company could not. (Id. at 7 (“THIS IS AN
AGREEMENT TO GUARANTY THE PAYMENT OF A DEBT OF ANOTHER.”
(emphasis in original).) Accordingly, any debt owed by MusclePharm for unpaid amounts
owed on Mill Haven’s Deliverables includes the interest charges required by the Sales
Agreement, and defendant is liable for those “Guaranteed Amounts” under the
unambiguous terms of the parties’ contract.7
Finally, there is no dispute that the Personal Guaranty expressly requires the
guarantor (defendant Drexler) to pay “all reasonable legal and other costs, expenses and
fees” incurred in the enforcement of the Guaranty. (Dkt. #18-2, at 7.) Therefore,
7 While disputing that interest was included in the guaranty, in response to plaintiff’s motion
for summary judgment, defendant did not dispute the amount of interest owed as calculated by
plaintiff. (Pl. Reply to Def. Response to PFOF (dkt. #93) ¶ 98.) Defendant argues for the
first time in his reply brief on his motion for partial summary judgment that the amount of
interest exceeds the maximum allowed by Wisconsin law. (Dkt. #88, at 7.) The court does
not address this contention because arguments that are raised or developed for the first time
in a reply brief are waived. White v. United States, 8 F.4th 547, 552 (7th Cir. 2021) (citing
Wonsey v. City of Chicago, 940 F.3d 394, 398 (7th Cir. 2019)); Physicians Healthsource, Inc. v. A-
S Medication Sols., LLC, 950 F.3d 959, 968 (7th Cir. 2020). The court will, however, order
plaintiff to supplement the record with the amount of interest owed on the unpaid invoices
covered by the Personal Guaranty as of the date of this opinion, giving defendant an
opportunity to respond to the updated calculation, albeit only as to the calculation itself, and
plaintiff an opportunity to reply.
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defendant is also on the hook for plaintiff’s reasonable attorney’s fees and costs associated
with this lawsuit under the terms of the Guaranty. As a result, defendant’s motion for
partial summary judgment will be denied and both sides will be given an opportunity to
address that award as well.
ORDER
IT IS ORDERED that:
1) Plaintiff MHF Opco, LLC’s motion for summary judgment (dkt. #54) is
GRANTED.
2) Defendant Ryan Charles Drexler’s motion for partial summary judgment (dkt.
#60) is DENIED.
3) Plaintiff shall supplement the record within 21 days with a proposed judgment
that includes an updated calculation of the amount of interest owed by
defendant on the unpaid invoices covered by the Personal Guaranty and the
attorney’s fees being sought, along with any supporting documentation.
Defendant shall file any response within 14 days. Plaintiff shall then have 10
days to file a reply.
4) Within 21 days, plaintiff shall submit its brief and any supporting materials in
support of its request for attorneys’ fees, including itemized time records,
invoices, and proof of payment of such invoices by Opco. Defendant shall have
14 days thereafter to submit its opposition. If defendant challenges the
reasonableness of plaintiff’s fee request in that opposition, its counsel shall also
contemporaneously submit its itemized time records, invoices and proof of
payment of such invoices. Plaintiff shall have 10 days thereafter to file a reply,
if any.
Entered this 8th day of December, 2025.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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