Roberta L. Marcus, Inc. v. New Cingular Wireless PCS, LLC et al

Filing 91

ORDER granting in part and denying in part 76 Defendants' Motion for Summary Judgment. Signed by Judge Robert N. Scola, Jr. on 9/3/2013. (rss)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-20744-Civ-SCOIA
ROBERTA L. MARCUS, INC.,
Plaintiff,
vs.
NEW CINGULAR WIRELESS PCS, LLC, and
BELLSOUTH TELECOMMUNICATIONS, LLC,
Defendants.
______________________________/
ORDER ON DEFENDANTS’ SUMMARY JUDGMENT MOTION
THIS MATTER is before the Court on the Defendants’ Motion for Summary Judgment. For
the reasons explained in this Order, the Motion is granted in part, and denied in part. Judgment is
granted against many of the claims because they are barred by the statute of limitations. A few
claims survive the statue of limitations because they are continuing in nature, but the Plaintiff has
not presented any evidence of actual damages. The Plaintiff is therefore only entitled to nominal
damages, assuming it is able to meet its burden of persuasion.

I. Background
This case involves a dispute over a piece of telecommunications equipment between the
Plaintiff, Roberta L. Marcus, Inc. (“Marcus”), and the Defendants, New Cingular Wireless PCS, LLC
and Bellsouth Telecommunications, LLC. In 1996, New Cingular leased space in the Marcus
Centre, a building owned by Marcus. The lease granted New Cingular the ability to install a cellular
antenna on the roof of the Marcus Centre, and also to use an equipment closet to store electronic
equipments related to the operation of the cellular antenna.

A critical component to New

Cingular’s cellular operations at the Marcus Centre was a piece of equipment called a multiplexer
(this component is also the key point of contention in the present litigation). The multiplexer
provided the necessary connection between a landline service and the cellular equipment in order
for calls to be transported to and from the cellular equipment operating antenna. Without that
connection, the cellular site at the Marcus Centre would have been useless. The multiplexer was
provided to New Cingular by Bellsouth. Bellsouth was the entity that provided service to the
landlines for the area around the Marcus Centre.
Marcus and New Cingular got into a legal dispute over New Cingular’s decision to not renew
the lease. In 2003 the parties reached a settlement at mediation and executed a Settlement
Agreement and Termination of Lease. As part of this settlement, New Cingular agreed to transfer
the antenna and all of the cellular equipment in the closet to Marcus so Marcus could lease the site

to another cellular carrier. Also in connection with the settlement, Marcus executed a general
release as to New Cingular for all claims, known or unknown.
After the lease was terminated, Marcus sought other cellular carriers to lease the antenna
and equipment to. As part of this plan, Marcus had insisted in the settlement discussions that New
Cingular leave all of the equipment fully operational and powered on so that Marcus would be able
to demonstrate to a potential lessee that the equipment was in good working order and would be a
“turn-key” operation.
Early in 2006, a technician for New Cingular presented himself to Marcus and asked to
exchange a piece of equipment in the equipment closet. Marcus denied the technician access to the
closet. In the conversation that followed, Marcus told the technician that he was thinking about
shutting off the power to the equipment closet. The technician informed Marcus that shutting off
the equipment in the closet could cause a disruption to telephone services in the area.
After that meeting, Marcus sent a letter to New Cingular to express his concern that New
Cingular was violating the terms of their settlement agreement by continuing to use the cellular
components in the equipment closet. Marcus did not receive a response from either New Cingular
or Bellsouth. Marcus did not follow up on this concern because, unfortunately, Marcus’s principal,
Paul Marcus, became very sick with cancer, requiring intensive treatments including multiple
procedures and months of chemotherapy.
Marcus continued to seek other cellular carriers to lease the antenna and equipment, but by
2010 Marcus had become weary of the now seven-year search.

Marcus powered down the

equipment in order to move the components out of the closet. A New Cingular technician appeared
at the Marcus Centre asking to look at the equipment room. This technician advised Marcus that
the closet housed a fiber optic back-up unit for New Cingular’s service in the area. He convinced
Marcus that leaving the equipment powered off could cause Marcus’s neighbors to lose service. As
it turned out, the piece of equipment the technician was referring to was the multiplexer.
There were some back and forth communications between Marcus and the Defendants.
Ultimately the Defendants deactivated the multiplexer remotely. Two years later, in January 2012,
Marcus brought this lawsuit. The crux of this dispute is Marcus’s contention that the Defendants
continued to use the multiplexer following the termination of the 1996 lease agreement. The
Defendants contend that they did not use the multiplexer at all, but that it merely remained linked
to their network, at Marcus’s request, ready to resume service if Marcus ever leased the equipment
to another cellular carrier.

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II. Legal Standards
Summary judgment is proper if following discovery, the pleadings, depositions, answers to
interrogatories, affidavits and admissions on file show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N Crossarm
Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). “An issue of fact is ‘genuine’ if the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260. All the
evidence and factual inferences reasonably drawn from the evidence must be viewed in the light
most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970);
Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).
Once a party properly makes a summary judgment motion by demonstrating the absence of
a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party
must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories
and admissions on file, and designate specific facts showing that there is a genuine issue for trial.
Celotex, 477 U.S. at 323-24. The nonmovant’s evidence must be significantly probative to support
the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not weigh
the evidence or make findings of fact. Id.; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir.
2003). Rather, the Court’s role is limited to deciding whether there is sufficient evidence upon
which a reasonable juror could find for the nonmoving party. Id. 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. Scott v. Harris, 550 U.S. 372, 380 (2007).

III. Discussion
A.

Counts 1, 3, 4, and 10 Are Barred By The Statute Of Limitations and The
Defendants Are Not Equitably Estopped From Asserting That Defense.
Marcus was aware that the multiplexer was still connected to the Defendants’ network as far

back as 2006. (Marcus Aff. ¶¶ 22-25, ECF No. 83-1; Marcus Dep. 81:8-19, 82:1-4, 83:4-8, 84:1624, 110:19-25, 113:23-114:12, 123:13-124:13, 134:19-24, ECF No. 82-1.) Marcus even complained to
New Cingular in 2006 that the telephone company was “obviously” still using the equipment.
(Letter from Paul Marcus to Michael Weeks (Mar. 27, 2006), ECF No. 82-1; accord Marcus Dep.
83:4-8, Feb. 27, 2013, ECF No. 82-1.) Marcus threatened to shut down and remove the equipment
if New Cingular did not pay him for the use of the multiplexer. (Id.) New Cingular did not respond
to Marcus’s letter, and Marcus let the matter go. Marcus’s decision to not follow up on his claims
and demands was not due to anything that the Defendants did. Instead, Marcus let the matter
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lapse because he became sick from cancer. (Marcus Dep. 91:17-92:14, ECF No. 82-1; Marcus Aff. ¶
27, ECF No. 83-1.)
1.

Summary judgment will be granted on the breach-of-contract claim in favor of New
Cingular.
Summary judgment is appropriate on Marcus’s breach-of-contract claim (Count 1) for three

reasons: (1) the claim was released by Marcus, (2) the claim is barred by the statute of limitations,
and (3) the claim has no factual support.

Marcus alleged that New Cingular breached the

Mediation Settlement Agreement and the Termination of Lease Agreement by continuing to
operate the multiplexer after the lease was terminated. (Second Am. Compl. ¶¶ 20, 34, ECF No. 28;
Marcus Dep. 108-09.) Marcus also alleges that New Cingular breached the Bill of Sale by failing to
convey the multiplexer to Marcus. (Second Am. Compl. ¶¶ 16, 35; Marcus Dep. 108-09).
Taking these allegations in order, the Mediation Settlement Agreement and the
Termination of Lease Agreement were signed on July 22, 2003 and August 1, 2003, respectively.
The General Release was signed on August 4, 2003. This General Release included “all manner of
actions . . . in law or in equity . . . arising out of any matter . . . from the beginning of the world until
the date of this General Release.” (Gen. Release, ECF No. 82-1.) But Marcus contends that New
Cingular breached the Mediation Settlement Agreement and the Termination of Lease Agreement
immediately after executing these agreements by continuing to use the multiplexer as a “back up”
unit. (See Marcus Aff. ¶ 33, ECF No. 83-1 (“[T]he room contained a fiber optic back up unit for
[New Cingular’s] service in the area.”).) Because these agreements were allegedly breached before
the General Release was executed, these claims were necessarily included and extinguished by the
General Release. The same reasoning applies with equal force to the allegation that the Bill of Sale
was breached by failing to convey the multiplexer to Marcus.
These allegations are also barred by the statute of limitations. It is undisputed that Marcus
was aware that New Cingular was allegedly continuing to use the multiplexer by March 26, 2006.
(Letter from Paul Marcus to Michael Weeks (Mar. 27, 2006), ECF No. 82-1; accord Marcus Dep.
83:4-8.) Since the statute of limitations for a breach-of-written-contract claim is five years, Fla.
Stat. § 95.11(2)(b) (2012), the statute of limitations for this claim expired on March 26, 2011. But
Marcus’s lawsuit was not filed until January 2012.1 (Defs.’ Stmt. Facts ¶ 1, ECF No. 78.)

Throughout the deposition of Paul Marcus, and occasionally in Marcus’s briefs, the Plaintiff drops
subtle allegations of additional wrongs that New Cingular allegedly committed. For example,
Marcus complains that New Cingular may have removed some electronic equipment from the
closet after the lease termination, or that New Cingular was never authorized to coordinate with
Bellsouth to have the multiplexer installed when the cell tower was operating. None of these
allegations are legitimately before the Court because they are not alleged in the Second Amended
Complaint, and Marcus has not filed a motion for leave to amend. But even if these claims were
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New Cingular is not equitably estopped from asserting the statute-of-limitations defense
because there are no facts demonstrating that New Cingular caused Marcus to delay in bringing
this action. The doctrine of equitable estoppel, which is based on principles of justice and fair play,
arises “when one party lulls another party into a disadvantageous legal position.” Major League
Baseball v. Morsani, 790 So. 2d 1071, 1076 (Fla. 2001). The doctrine prevents a defendant from
asserting a statute-of-limitations defense when the defendant, through some nefarious act, has
prevented the plaintiff from timely bringing his or her lawsuit. ld. There are no facts in the record
that support Marcus’s allegations that the delay in bringing this lawsuit was because of something
that New Cingular did or said. Rather, it is clear that the delay is solely attributable to Paul Marcus
becoming sick. (Marcus Dep. 91:17-92:14; Marcus Aff. ¶ 27 (explaining that because he received no
response to the March 2006 letter and because no more technicians from New Cingular visited the
Marcus Centre, Marcus “decided not to pursue the matter further, also because of personal matters
including a serious cancer diagnosis and intensive treatment.”) )
From that time forward, Marcus’s only interaction with New Cingular was the occasional
visit by a technician to the Marcus Centre. These technicians purportedly told Marcus that the
multiplexer was a back-up unit and that shutting the power off could disrupt telephone service for
others in the area. (Marcus Aff. 33, ECF No. 83-1.) This allegation explains only why Marcus
might not shut off the power to the multiplexer, it does not explain why Marcus would not bring
suit for wrongs that he believed New Cingular committed. New Cingular’s actions and statements
are not connected to Marcus’s failure to bring a lawsuit. Put simply, New Cingular did nothing at
all to lull Marcus into a disadvantageous legal position.

Nothing prevented Marcus from

investigating his conclusions that New Cingular had obviously been using the equipment since
2003, and nothing prevented Marcus from bringing a lawsuit then. Accordingly, New Cingular is
not prevented from raising the statute of limitations as a defense. And that defense, which is
conclusively supported by the record, is a complete bar to Marcus’s breach-of-contract claim.
Finally, Marcus’s allegation that New Cingular breached the Bill of Sale by failing to convey
the multiplexer to Marcus fails because it is not factually supported by the record. New Cingular
and Bellsouth have both conceded that the multiplexer was conveyed in the Bill of Sale and is
owned by Marcus. (Reply 7, ECF No. 87.) Given this concession, there is no factual support for
Marcus’s claim that New Cingular breached the Bill of Sale by not conveying the multiplexer in
2003. Summary judgment must be granted in favor of New Cingular as to this claim as well.

raised they would necessarily fail for the same reason the breach-of-contract claim fails. These
claims were released by Marcus because they arose before the General Release was executed.
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2.

Summary judgment will be granted on the trespass-to-real-property claim against New
Cingular.
The tort of trespass to real property is “an unauthorized entry onto another’s property.”

Coddington v. Staab, 716 So. 2d 850,851 (Fla. 4th DCA 1998) (quotation omitted).

In this

alternative claim, Marcus’s allegations proceed from the premise that the multiplexer was not
conveyed in the Bill of Sale and thus still belonged to New Cingular or Bellsouth. Marcus’s theory
of liability is that if the multiplexer still belonged to the Defendants after the lease agreement was
terminated, then the act of leaving the multiplexer on Marcus’s property for all these years
constituted a trespass upon Marcus’s land. (Second Am. CompI. “ 45-46, 68, ECF No. 28.)
This claim is not supported by the record since the Defendants have now conceded that the
multiplexer was conveyed to Marcus in the Bill of Sale. At this point, the parties all agree that
Marcus is the true owner of the multiplexer and has been since August 2003. (Reply 7, ECF No.
87.) Given the undisputed record, summary judgment must be granted in favor of New Cingular on
the trespass-to-real-property claim.
3.

Summary judgment will be granted on the fraudulent-misrepresentation claim in favor of
New Cingular.
Under Florida law, the heart of a fraudulent-misrepresentation claim is a false statement

concerning a material fact. Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010). Here, Marcus has
articulated two allegedly false statements made by New Cingular: (1) failing to disclose that it was
not conveying the multiplexer in the Bill of Sale because New Cingular did not own it, and (2)
failing to disclose that New Cingular would continue to use the multiplexer after executing the
Lease Termination Agreement. (Marcus Dep. 130:6-18, ECF No. 82-1.)2 The first claim has no
factual support, and the second is barred by the statute of limitations.
Marcus contends that New Cingular misled Marcus to believe that all of the components in
the electronics closet would be conveyed in the Bill of Sale. According to Paul Marcus, New
Cingular’s promises were false because the multiplexer was not actually conveyed to Marcus. But
since both Defendants have conceded that the Bill of Sale did include the multiplexer, this claim for
misrepresentation has no factual support in the record. Marcus also contends that New Cingular

Again Marcus hints at another claim that is not actually pleaded: that the Rooftop Lease
Agreement only permitted New Cingular to use the Marcus Centre to conduct cellular
communications and that any use of the Marcus Centre to facilitate land-line communications was
inconsistent with that agreement. At his deposition, Paul Marcus complained about New
Cingular’s failure to tell Marcus about the multiplexer and its function (to convey land line
communications). (Marcus Dep. 124:20-127:16, ECF No. 82-1.) As articulated, this claim
necessarily arose at the time the multiplexer was first installed in the Marcus Centre, near the
beginning of the Rooftop Lease Agreement in June 1996. (See id) This claim was therefore
released as part of the General Release, executed on August 4, 2003.
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engaged in actionable misrepresentations through its continued operation of the multiplexer in the
Marcus Centre after entering into the Termination of Lease Agreement. (Second Am. Compl. ¶¶ 1516, 18, 20-22.) But it is undisputed that by March 26, 2006 Marcus was aware that New Cingular
was purportedly still using the multiplexer. (Letter from Paul Marcus to Michael Weeks (Mar. 27,
2006), ECF No. 82-1; accord Marcus Dep. 83:4-8.)

Since the statute of limitations for a

fraudulent-misrepresentation claim is four years, Fla. Stat. § 95.11(3)(j) (2012), this claim expired
in March 2010. But Marcus’s lawsuit was not filed until January 2012. (Defs.’ Stmt. Facts ¶ 1, ECF
No. 78.) Once again, it is undisputed that New Cingular did nothing to keep Marcus from filing a
claim; the delay was solely attributable to Paul Marcus’s health issues. (Marcus Dep. 91:17-92:14;
Marcus Aff. ¶ 27.) For these reasons, summary judgment must be granted in favor of New Cingular
as to the fraudulent-misrepresentation claim.
4.

Summary judgment will be granted on the conspiracy claim in favor of New Cingular.
Marcus alleges that New Cingular “conspired [with Bellsouth] to benefit from the

contractual relationship [New Cingular] had with [Marcus] for cellular transmissions, only. With
access to the Building via said contractual relationship, the Defendants, in concert, conspired to
install equipment necessary for fiber optic transmissions, which neither Defendant contracted or
paid for.” (Second Am. Compl. ¶ 84.) The crux of the conspiracy was to “bargain for use of a
cellular antenna locale but in reality to surreptitiously install and run fiber optics operations out of
the Building without disclosing and/or paying for the same.”

(Id. ¶ 87.)

The Defendants

“conspired to run fiber optics operations out of the building without paying for the same as early as
June 19, 1996, but no later than August 3, 2003.” (ld. ¶ 86.)
This claim is barred for several reasons. First, Marcus is claiming damages for wrongs that
occurred during the pendency of the Rooftop Lease Agreement (i.e., claims that occurred “no later
than August 3, 2003”). (Second Am. Compl. ¶ 86; accord Marcus Dep. 140:13-19, ECF No. 82-1.)
This claim was discharged by the General Release, executed on August 4, 2003.
Next, Marcus is claiming damages for the continued operation of the multiplexer after the
lease agreement was terminated. (Marcus Dep. 140:20-23.)3 Marcus was aware of this claim since
March 2006 but failed to bring suit until January 2012. (Marcus Dep. 134:19-24; Defs.’ Stmt. Facts
¶ 1, ECF No. 78.) Once again, it is undisputed that New Cingular did nothing to keep Marcus from
filing a claim; the delay was solely attributable to Paul Marcus’s health issues. (Marcus Dep. 91:1792:14; Marcus Aff. ¶ 27.) For these reasons, the conspiracy claim is barred by the statute of

3 Paul Marcus explains that there are three claims under this Count. (Marcus Dep. 140-141.) But,
as articulated, the first and the third claims are for the same alleged wrong (i. e., the use of the
Marcus Centre to facilitate land line communications when the Rooftop Lease Agreement only
allowed for cellular communications). (Id.)

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limitations, and New Cingular is not estopped from asserting that defense. Accordingly, summary
judgment will be granted in favor of New Cingular on the conspiracy claim.
B.

There Is A Genuine Issue Of A Material Fact As To Liability For Counts 2, 5, 6,
8, and 9, But Marcus Has Failed To Establish The Existence Of Any Actual
Damages For These Counts. Summary Judgment Will Be Entered Limiting
Marcus’s Damages To Nominal Damages Only.

1.

The claims addressed in this Section are not barred by the statute of limitations.
This Section addresses three causes of action: (a) trespass to personal property (Counts 2 &

6), (b) unjust enrichment (Counts 5 & 8), and (c) conversion (Count 9).4 The claims avoid the
application of the statute of limitations because, as presented, they are continuing torts. Marcus
contends that the Defendants are liable for these claims because they continuously used the
multiplexer in the Marcus Centre from the termination of the original lease until June 2010 when
the multiplexer was disconnected from Bellsouth’s telephone network. (See, e.g., Second Am.
Compl. ¶¶ 40-42, ECF No. 28.)
“A continuing tort is established by continual tortuous acts. Black Diamond Props. v.
Haines, 69 So. 3d 1090, 1094 (Fla. 5th DCA 2011) (quotation omitted). “A trespass may constitute
a continuing tort.” Suarez v. City of Tampa, 987 So. 2d 681, 685 (Fla. 2d DCA 2008). A trespass
claim will be deemed a continuing tort where the defendant’s manner of trespassing is abatable;
that is, if the defendant’s intrusion can be suspended but later resumed. See Baker v. Hickman,
969 So. 2d 441, 444 (Fla. 5th DCA 2007). The nature of the trespass in Baker was flooding that
occurred only during major rain events. Id. at 442. The flooding was caused by the way that the
plaintiff’s neighbor’s home was constructed. Id. The court determined this was a continuing tort
because the trespass (the overflow condition) was abatable, and in fact had been abated. Id. at 444.
A cause of action for unjust enrichment is an equitable claim that implies a contract as a
matter of law even though there is no actual contract between the parties. 14th & Heinberg, LLC v.
Terhaar & Cronley Gen. Cont’rs, Inc., 43 So. 3d 877, 880 (Fla. 1st DCA 2010). In an action to
recover for unpaid installment payments, a new claim accrues, and the statute of limitations begins
to run, upon each period of non-payment. See Isaacs v. Deutsch, 80 So. 2d 657, 660 (Fla. 1955).
Marcus’s claims for trespass to personal property and conversion are continuing torts
because both of these claims are abatable, and have in fact been abated. The Defendants’ use of the
multiplexer in the Marcus Centre could be prevented by shutting off the power to the equipment
closet, and later resumed by restoring the power to the equipment. Marcus did in fact shut down
the multiplexer in April 2010. (Marcus Aff. ¶ 31, ECF No. 83-1.) Marcus’s claims for unjust

All of these claims have a statue of limitations of four years. Fla. Stat. § 95.11(3)(h) (2012)
(trespass to personal property & conversion); Fla. Stat. 95.11(3)(k) (2012) (unjust enrichment).
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enrichment are continuing torts because these claims may be fairly construed as seeking
installment payments from the Defendants.
Any claims that occurred more than four years ago are still barred by the statute of
limitations. The continuing tort doctrine does not save stale claims. But since these are continuing
torts (i.e., new causes of action were continuing to arise) Marcus may reach back four years from
the date this lawsuit was first filed and proceed forward on those claims. Since it is undisputed that
the multiplexer was deactivated in June 2010, the actionable period of these claims is from January
25, 2008 to June 2010.
2. There is a genuine issue as to liability on these claims so summary judgment is not
appropriate on the issue of liability.
Having determined that the Section B claims are not barred by the statute of limitations or
some other affirmative defense, the next question is whether there is any disputed fact that the
Defendants continuously used the multiplexer as alleged.

Paul Marcus explained that

representatives from one or both of the Defendants told him that shutting off power to the
multiplexer “could” cause a disruption to telephone services in the area. (Marcus Aff. ¶¶ 23, 33,
35.) But it is undisputed that “no service was lost or impacted when [Marcus] temporarily powered
down the multiplexer in April 2010.” (Schneider Aff. ¶ 25, ECF No. 75.)
Marcus argues that the Defendants’ conduct “suggests” that shutting off the multiplexer in
April 2010 adversely affected the Defendants’ customers in the area. (Pl.’s Stmt Facts ¶ 104, ECF
No. 84.)

But Argument is not evidence, and allegations and speculation are not enough on

summary judgment. Marcus has not presented any evidence that any customers lost services
because the multiplexer was shut off. Marcus could have filed affidavits or taken the depositions of
some of his neighbors who allegedly lost service.

Or Marcus could have sent a request for

production to the Defendants to get their service records for that time period, in that area, to show
that some customers lost service. Marcus may not simply rest on his allegations in the face of the
Defendants’ contrary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). So, the
evidence shows that Defendants were not using Marcus’s multiplexer as a critical component to
deliver services to Marcus’s neighbors. On this point there is no dispute.5
But there is one additional allegation that lingers.

Paul Marcus testified that a New

Cingular technician informed him that the multiplexer in the Marcus Centre was being used as a
“back-up unit” for New Cingular’s service in the area. (Marcus Aff. ¶ 33, ECF No. 83-1.) The
Defendants have presented evidence that the multiplexer “did not, and could not” provide any
Even if Marcus was able to present evidence that service was disrupted when the multiplexer was
shut down, this fact would not alter the conclusion, in this Section, that Marcus has presented no
evidence of damages and is thus limited to nominal damages only.
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services to any customers in the area. (Schneider Aff. ¶ 21, ECF No. 75.) Unlike the previous
example, the Defendants’ evidence on this allegation does not go the extra step, but rather simply
and directly contradicts Marcus’s evidence. In other words, there is a genuine issue as to the
material fact of whether the Defendants were using Marcus’s multiplexer in some manner as a
back-up for services in the area. In this manner, it is plausible that the Defendants could have
received some value, even if it was merely the reassurance that if their primary units in the area
went down, they could activate Marcus’s unit as a back-up. There is no evidence that they ever did
activate the unit, but the simple fact that they allegedly could is enough to support Marcus’s
allegation that the multiplexer was being used by the Defendants in some beneficial way.
3.

Marcus has presented no evidence of any actual damages, and no evidence of any purported
benefit.
The Defendants contend that Marcus has failed to adduce any evidence of damages for its

claims. Citing to the deposition of Paul Marcus, the Defendants argue that Marcus “has produced
zero evidence to substantiate or establish the existence of any of its alleged damages. In fact, [Paul
Marcus] admitted at his deposition that Marcus . . . does not have evidence of any . . . damages.”
(Defs.’ Mot. Summ. J. 20, ECF No. 77 (citing Marcus Dep. 146:8-12, 148:15-24, 151:2-14); see also
Defs.’ Stmt Facts ¶¶ 58-63, ECF No. 78.) Likewise, Marcus has not presented any evidence as to
the value of any benefit that the Defendants received by allegedly having the multiplexer available
as a back-up unit. If anything, the evidence shows that there could not have been much benefit, if
any, because the multiplexer was obsolete by 2010. (Schneider Aff. ¶¶ 24, 27, ECF No. 75.)
In response, Marcus argues that actual damage is not a necessary element for the claims of
unjust enrichment, conversion, and trespass. (Pl.’s Resp. 18, ECF No. 83.) Marcus contends that it
is entitled to “judgment for nominal damages and costs even without later proving actual
damages.” (Id.)
The Defendants have presented probative evidence demonstrating that Marcus has not
suffered any actual damages. It is thus Marcus’s obligation to “go beyond the pleadings . . . and
designate specific facts showing that there is a genuine issue” that it has sustained actual damages.
See Celotex, 477 U.S. at 323-24. Marcus has failed to do so. (Pl.’s Resp. 18, ECF No. 83.)
Additionally, Marcus has not offered any evidence of the value of the purported benefit that the
Defendants allegedly received.

Marcus’s Response Brief essentially admits that there is no

evidence of actual damages because Marcus fails to argue the point, and fails to cite to any record
evidence to support the point. In doing so, Marcus has forfeited any argument that actual damages
exist or that the benefit allegedly received by the Defendants had any value. See Benoit v. U.S.
Dep’t of Agric., 608 F.3d 17, 21 (D.C. Cir. 2010). At this point, by its own admission, only nominal
damages are in play.

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IV. Conclusion
For the reasons explained above, the Defendants’ Motion for Summary Judgment (ECF No.
76) is GRANTED in part, and DENIED in part. Summary judgment is granted in favor of the
Defendants as to Counts 1, 3, 4, and 10 because these claims are barred by the statute of
limitations, have been released, or have no factual support in the record. Summary judgment is
denied as to liability for Counts 2, 5, 6, 8, and 9 – there is still a dispute over whether the
Defendants actually used the multiplexer as a back-up unit and that dispute is for the fact-finder to
resolve. But, partial summary judgment is granted as to damages for Counts 2, 5, 6, 8, and 9 to the
extent that even if Marcus is able to meet its burden of persuasion on these Counts, it may only
recover nominal damages because it has failed to present any evidence of actual damages.
DONE and ORDERED in chambers, at Miami, Florida, on September 3, 2013.
______________________________
ROBERT N. SCOLA, JR.
UNITED STATES DISTRICT JUDGE

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