Marine Lumber Co. vs. Precision Moving & Storage, Inc.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT re 17 MOTION for Summary Judgment. Signed by JUDGE LESLIE E. KOBAYASHI on 03/28/2017. The denial of the Motion is WITHOUT PREJUDICE insofar as Plaintiff may file a new motion seeking summary judgment after the record is more fully developed. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARINE LUMBER CO., an Oregon
PRECISION MOVING & STORAGE
INC., a Hawaii corporation;
DOE DEFENDANTS 1-50,
CIVIL 16-00365 LEK-RLP
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Plaintiff Marine Lumber Co.’s
(“Plaintiff” or “Marine Lumber”) Motion for Summary Judgment
(“Motion”), filed on August 5, 2016.
[Dkt. no. 17.]
Precision Moving & Storage Inc. (“Defendant” or “Precision
Moving”) filed its memorandum in opposition on October 10, 2016,
and Plaintiff filed its reply on October, 17, 2016.
This matter came on for hearing on October 31, 2016.
On November 1, 2016, this Court issued an entering order granting
Plaintiff leave to file a surreply, and Plaintiff did so on
November 15, 2016.
[Dkt. nos. 38, 40.]
On January 31, 2017, this Court issued an entering
order stating that Plaintiff’s Motion was DENIED WITHOUT
PREJUDICE (“1/31/17 EO Ruling”).
[Dkt. no. 47.]
order supersedes the 1/31/17 EO Ruling.
consideration of the Motion, supporting and opposing memoranda,
the arguments of counsel, and the relevant legal authority,
Plaintiff’s Motion is HEREBY DENIED WITHOUT PREJUDICE for the
reasons set forth below.
Marine Lumber filed its Complaint on June 30, 2016,
based on diversity jurisdiction.
[Complaint at ¶ 4.]
instant case arises from Precision Moving’s alleged agreement to
purchase certain materials from Marine Lumber.
[Id. at ¶ 7.]
The Complaint alleges the following claims: breach of contract
(“Count I”); [id. at ¶¶ 6-15;] action on account (“Count II”);
[id. at ¶¶ 16-18;] account stated (“Count III”); [id. at ¶¶ 1922;] unjust enrichment (“Count IV”); [id. at ¶¶ 23-28;] quantum
meruit (“Count V”); [id. at ¶¶ 29-32;] and assumpsit (“Count VI”)
[id. at ¶¶ 33-35].
Plaintiff seeks the following relief:
judgment against Defendant in the amount of $130,690.00; ten
percent interest from the date the amount was due until it is
paid in full; reasonable attorneys’ fees and costs;
“disbursements incurred as a result of Precision Moving’s
conduct”; and any other just and equitable relief.
[Id. at pg.
In the instant Motion, Plaintiff seeks summary judgment
as to each of the claims alleged in the Complaint and an award of
all of the relief prayed for in the Complaint.
[Motion at 2.]
Plaintiff submits the following evidence in support of its
Plaintiff asserts that it had a binding agreement with
Precision Moving, pursuant to which Precision Moving agreed to
purchase certain materials from Marine Lumber and Marine Lumber
agreed to provide the materials and to invoice Precision Moving
for the cost.
The period of the agreement began on or about
January 29, 2016 and continued through June 3, 2016.
Lumber did provide Precision Moving with the materials at the
agreed-upon prices and sent invoices to Precision Moving.
Precision Moving retained the materials.
invoices was $130,690.00.
The total amount of the
[Pltf.’s Separate and Concise
Statement of Facts in Supp. of Motion (“Pltf.’s CSOF”), filed
8/5/16 (dkt. no. 18), Decl. of Edward McGrath (“E. McGrath
Decl.”) at ¶¶ 4-7.1]
Edward McGrath states that $130,690.00 is
the reasonable value of the goods that Marine Lumber provided to
Precision Moving, at Precision Moving’s request.
[Id. at ¶ 12.]
He also states that Marine Lumber “has performed all obligations
required of it, or such obligations have been excused, and all
other conditions precedent to Precision Moving’s obligation to
pay have occurred.”
[Id. at ¶ 11.]
Edward McGrath is the president of Marine Lumber Co.
[E. McGrath Decl. at ¶ 3.]
The invoices dated January 29, 2016, March 31, 2016,
and April 13, 2016 were each due within sixty days of the date on
the invoice; and the June 2, 2016 and June 3, 2016 invoices were
each due within thirty days of the date on the invoice.
[E. McGrath Decl., Exhs. A-E (1/29/16 Invoice, 3/31/16 Invoice,
4/13/16 Invoice, 6/2/16 Invoice, 6/3/16 Invoice (collectively
Precision Moving has not paid anything to
Marine Lumber on the Invoices.
[E. McGrath Decl. at ¶ 10.]
or about June 17, 2016, Marine Lumber provided Precision Moving
with a statement of account and, upon the provision of the
statement, Precision Moving was indebted to Marine Lumber in the
amount of $130,690.00 for the materials that Precision Moving
at ¶ 5.3]
[Pltf.’s CSOF, Decl. of Scott Tracy (“Tracy Decl.”)
Mr. Tracy spoke with Michelle Rodrigues of Precision
Moving on or about June 17, 2016 about the outstanding Invoices.
According to Mr. Tracy, Ms. Rodrigues did not object to the
amount owed, apologized for any inconvenience they had caused,
and promised that Precision Moving would promptly make payment in
Precision Moving, however, never made payment.
The 1/29/16 Invoice, 3/31/16 Invoice, and 4/13/16 Invoice
describe the product as “WOODEN BOXES PER 40’ H/C CONTAINER FOR
U.S. MILITARY HOUSEHOLD GOODS SHIPMENTS.” [E. McGrath Decl.,
Exhs. A-C,] The 6/2/16 Invoice and the 6/3/16 Invoice have
“Type II Box” for the description. [Id., Exhs. D-E.]
Scott Tracy is a Marine Lumber employee. He handles the
Precision Moving account. [Tracy Decl. at ¶ 4.]
Plaintiff’s counsel submitted a declaration
authenticating emails that he sent to Ms. Rodrigues and
William Fraser in June 2016.
[Pltf.’s CSOF, Decl. of Joshua D.
Stadtler (“Stadtler Decl.”) at ¶¶ 3, 5-7, 9, Exhs. G-J.]
Mr. Stadtler states that he spoke with Mr. Fraser on or about
June 29, 2016.
According to Mr. Stadtler, Mr. Fraser
acknowledged the debt and proposed a payment plan, but Marine
Lumber never received any payment from Precision Moving.
Memorandum in Opposition
Defendant asserts that all of the material facts
described in the Motion are in dispute, and almost $40,000 of
Marine Lumber’s purported damages are attributable to materials
purchased by and provided to one of Precision Moving’s
[Mem. in Opp. at 2.]
Defendant submitted a
declaration by its president: 1) denying that he entered into an
oral contract with Marine Lumber on behalf of Precision Moving;
and 2) stating that none of his employees did so, nor were any of
them authorized to do so.
[Def.’s Concise Statement of Facts in
Opp. to Motion (“Def.’s CSOF”), filed 10/10/16 (dkt. no. 29),
Decl. of William A. Fraser (“Fraser Decl.”) at ¶¶ 2-4.]
Mr. Fraser states that the agreement, or agreements, alleged by
Marine Lumber were never formed, and that no meeting of the minds
[Id. at ¶ 6.]
Mr. Fraser states that Precision Moving
“did not contract for or receive, and has no record of receiving
[the] materials [referred to in the 6/2/16 Invoice and the 6/3/16
Invoice], as well as others that Marine Lumber Company is suing
[Id. at ¶¶ 8-9.]
He also states, in the context of
describing a June 29, 2016 conversation with Mr. Stadtler: “To
the extent Plaintiff shipped any goods to Defendant, the goods
were unwanted and defective goods from China that Defendant did
not request, that Defendant rejected, and that Plaintiff for some
inexplicable reason refused to take back.”
[Id. at ¶ 9.]
Mr. Fraser states that the Stadtler Declaration and
Mr. Stadtler’s letters contain numerous false statements.
at ¶ 10.]
Mr. Fraser states that he never acknowledged to
Mr. Stadtler or anyone else that Precision Moving owed a debt to
Marine Lumber and he never proposed a payment plan to
Mr. Stadtler or anyone else.
[Id. at ¶¶ 11-14.]
Mr. Fraser, because he never acknowledged the debt, he “did not
respond to Mr. Stadtler’s self-serving emails.”
[Id. at ¶ 11.]
Defendant submitted a declaration by Ms. Rodrigues,
who, at all relevant times, worked in Precision Moving’s
[Def.’s CSOF, Decl. of Michelle Rodrigues
(“Rodrigues Decl.”) at ¶ 2.]
She states that the Tracy
Declaration makes numerous false statements.
[Id. at ¶ 3.]
denies that she spoke with anyone “named Scott Tracy regarding
any alleged outstanding balance due and owing” to Marine Lumber.
[Id. at ¶ 4.]
She denies that she: acknowledged to anyone that
Precision Moving owed any money to Marine Lumber; apologized for
any inconvenience caused by the purported non-payment to Marine
Lumber; or promised that Precision Moving would pay Marine Lumber
She states that she does not have the authority do
any of those things.
[Id. at ¶¶ 5-7.]
The Complaint alleges: “Precision Moving also breached
its agreement with Marine Lumber by anticipatorily repudiating
its payment obligations for the invoices dated June 2, 2016, and
June 3, 2016.”
[Complaint at ¶ 11.]
Defendant argues that this
is an acknowledgment that Precision Moving did not want the
materials that Marine Lumber was shipping to it.
[Mem. in Opp.
Further, not only are the Invoices for materials that
Precision Moving did not order, two of them – totaling almost
$40,000 – are for materials shipped to Crown Relocations
(“Crown”), not Precision Moving.4
[Id. at 6 (citing Pltf.’s
Defendant argues that the there is no evidence in
Crown is one of Precision Moving’s competitors.
Decl. at ¶ 7.]
In the 1/29/16 Invoice, 3/31/16 Invoice, and 4/13/16
Invoice, both the “Bill To” box and the “Marine Lumber Inventory”
box have Precision Moving’s name and address. [E. McGrath Decl.,
Exhs. A-C.] In the 6/2/16 Invoice and 6/3/16 Invoice, although
the “Bill To” box has Precision Moving’s name and address, the
“Marine Lumber Inventory” box has Crown’s name and address.
[Id., Exhs. D-E.]
the record that Precision Moving received any of the materials
referred to in the Invoices.
Defendant argues that the statements in the Stadtler
Declaration, the Tracy Declaration, and the E. McGrath
Declaration are disputed by the Fraser Declaration, the Rodrigues
Declaration, and the declaration of Earnest Moritomo6 show that
the material facts of this case are in dispute.
that all six of Plaintiff’s claims are based upon disputed
material facts because the parties dispute whether any contract
was formed or any meeting of the minds existed.
Plaintiff argues that the transactions at issue in the
instant case followed the same pattern as a prior transaction
between the parties in 2015, except that Precision Moving paid
for those materials.
[Reply at 2.]
Mr. Tracy states that, in
early 2015, he began discussing with Mr. Fraser the possibility
of Precision Moving ordering materials from Marine Lumber.
exchanged emails and spoke on the phone.
Objections in Response to Def.’s CSOF (“Pltf.’s Reply CSOF”),
filed 10/17/16 (dkt. no. 31), Reply Decl. of Scott Tracy (“Tracy
Reply Decl.”) at ¶¶ 3-4, Exhs. K-L.]
Around June 2015,
Mr. Fraser placed a phone order on behalf of Precision Moving
Ernest Moritomo is Precision Moving’s general manager.
[Def.’s CSOF, Decl. of Ernest Moritomo (“Moritomo Decl.”) at
with Mr. Tracy.
Mr. Tracy arranged for the materials to be
shipped to Crown and for Precision Moving to pick up the
materials from Crown.
[Tracy Reply Decl. at ¶ 5, Exh. M (email
dated 6/25/15 to Lezlie St. Germain of Crown from Tracy – with
copy to Fraser – regarding Fraser picking up materials from
According to Mr. Tracy, Crown is
a moving company with offices in several states in
the U.S., including Hawaii. Marine [Lumber]
regularly ships containers with inventory to Crown
in Hawaii, both for Crown’s local business
operations and Crown’s customers. Whenever there
is an excess of Marine [Lumber] inventory in
transit or already delivered to Crown, Marine
[Lumber] typically offers it to other customers.
[Id. at ¶ 5.]
On July 1, 2015, Lisa McGrath sent an invoice
dated June 26, 2015 for the materials to Mr. Fraser via email,
with a copy to Mr. Tracy.7
[Def.’s Reply CSOF, Decl. of
Lisa McGrath (“L. McGrath Reply Decl.”) at ¶ 3, Exh. N.]
upper right corner of the invoice states “Marine Lumber
Inventory” with Crown’s name and address.
Lisa McGrath, this notation “means that the container of wooden
crates that Precision purchased from Marine [Lumber] was either
in transit or already delivered to Crown’s Mililani warehouse.
Whenever Marine [Lumber] sells goods to customers in this manner,
that same ‘Marine Lumber Inventory’ notation appears on the
Lisa McGrath is an employee of Marine Lumber. Her job
duties include sending invoices to customers and keeping track of
whether the invoices are paid. She typically sends the invoices
via email. [L. McGrath Reply Decl. at ¶ 2.]
[L. McGrath Reply Decl. at ¶ 3.]
paid the June 26, 2015 invoice.
[Id. at ¶ 4, Exh. O.]
Mr. Tracy corresponded with Mr. Fraser in January 2016
about Marine Lumber products.
[Tracy Reply Decl. at ¶¶ 6-7,
In a January 19, 2016 email exchange, Mr. Fraser
placed an order with Marine Lumber.
[Id. at ¶ 8, Exh. S.]
1/29/16 Invoice was for this order.
[Id. at ¶ 8.]
Lisa McGrath sent the Invoices to Mr. Fraser by email.
[L. McGrath Reply Decl. at ¶ 5, Exh. T.]
Neither Mr. Fraser nor
anyone else disputed the amounts stated in the Invoices or
indicating that the materials were not delivered.
Reply Decl. at ¶ 5.]
Mr. Tracy also states that Mr. Fraser never
contacted him to dispute any of the Invoices which Lisa McGrath
[Tracy Reply Decl. at ¶ 8.]
According to Mr. Tracy, after Precision Moving received
the first shipment, Mr. Fraser informed him by phone that they
were satisfied and that they intended to purchase more materials.
Precision Moving placed four more phone orders with Mr. Tracy.
Those orders are reflected in the 3/31/16 Invoice, 4/13/16
Invoice, 6/2/16 Invoice, and 6/3/16 Invoice.
[Id. at ¶ 9 & n.3.]
As evidence that Marine Lumber delivered the “first
shipment” of materials to Precision Moving, Plaintiff submits an
email dated February 26, 2016 from Joanne Valoria of Inchcape
Shipping Services (“Inchcape”) to, inter alia, Mr. Tracy and
The email and its attachment state that the vessel
with Marine Lumber’s container for Precision Moving had arrived.
[Id. at ¶ 10, Exh. U.]
As evidence that Marine Lumber delivered
the materials referenced in subsequent invoices, it submits an
October 17, 2016 email exchange between Mr. Tracy and Ali Wang of
Inchcape “regarding Marine[ Lumber]’s first three shipments to
Precision [Moving] in 2016.”
[Tracy Reply Decl. at ¶ 11,
The email includes an excerpt of Inchcape’s “gate
transaction record” listing Precision Moving for a “Pullout Load”
on March 11, 2016 and April 25, 2016, and two on May 31, 2016.
[Tracy Reply Decl., Exh. V.]
Mr. Tracy states that he authorized
Inchcape to release those containers to Precision Moving.
Reply Decl. at ¶ 11.]
Thus, Plaintiff argues that Precision
Moving picked up the first three shipments on or about March 11,
2016, April 25, 2016, and May 31, 2016.
[Reply at 3.]
Plaintiff also submits: 1) an April 5, 2016 email from
Mr. Tracy to Mr. Fraser estimating when the second and third
shipments that Precision Moving ordered would arrive; [Tracy
Reply Decl. at ¶ 12, Exh. W;] 2) a May 19, 2016 email from
Mr. Tracy to Margo Santiago, with copy to Mr. Fraser, that
included shipping confirmation for the fourth shipment that
Precision Moving ordered and arrival information about the third
shipment; [Tracy Reply Decl. at ¶ 13, Exh. X;] and 3) a June 3,
2016 email that Mr. Tracy sent to Ms. Santiago and Mr. Fraser
with shipping confirmation for the fifth shipment to Precision
Moving [Tracy Reply Decl. at ¶ 14, Exh. Y].
Mr. Tracy states
that he sent the May 19, 2016 email to Ms. Santiago after he
spoke with her on the phone and Precision Moving ordered the
[Tracy Reply Decl. at ¶ 13.]
He sent the
June 3, 2016 email after a phone conversation with Mr. Fraser
when Precision Moving ordered another container of Marine
Mr. Tracy states that Precision Moving was
originally supposed to pick up the container from Crown’s
warehouse, but it “was instead consigned to Precision [Moving]
[Id. at ¶ 14.]
On June 8, 2016, Ms. Santiago sent an email to
Mr. Tracy, with copy to Mr. Fraser regarding “another KD
container consigned to Precision.”
She states that Mr. Fraser
may have referred to it as “the Crown container.”
[Id. at ¶ 15,
Mr. Tracy responded later that day by forwarding the
June 3, 2016 email to her.
[Tracy Reply Decl. at ¶ 16, Exh. AA.]
Mr. Tracy states that, based on his experience, the shipping
company – Matson Navigation Company, Inc. (“Matson”) – would not
release the container unless the consignee – here Precision
Moving – authorized Matson to do so.
[Id. at ¶ 16.]
that he had written and oral communications with Mr. Fraser,
Ms. Rodrigues, Mr. Moritomo, and Ms. Santiago, and none of them
disputed Precision Moving’s receipt of any of the seven
containers that Marine Lumber shipped to Precision Moving in
[Id. at ¶¶ 11, 16.]
Moreover, Plaintiff argues that
Precision Moving never rejected the materials in the shipments.
[Reply at 5.]
Mr. Tracy states that he discussed Precision Moving’s
unpaid Invoices with Ms. Rodrigues on June 13, 2016, and he sent
the 1/29/16 Invoice and the 3/31/16 Invoice to her on that date.
[Tracy Reply Decl. at ¶ 17, Exh. BB.]
He resent those invoices
to her on June 17, 2016 and June 20, 2016.
¶¶ 18-19, Exh. CC-DD.]
[Tracy Reply Decl. at
On June 20, 2016, Mr. Tracy sent an email
to Ms. Rodrigues inquiring about the status of the invoices.
responded later that day, with a copy to Mr. Fraser,
Mr. Moritomo, and Rudy Alivado, stating: “I am still working with
Bill regarding payment on our account.
I deeply apologize for
the inconvenience this is causing you, I will get back to you as
soon as I get a payment status.”
[Tracy Reply Decl., Exh. EE.]
On June 21, 2016, Mr. Tracy emailed Mr. Fraser, with
copy to Ms. Rodrigues, stating that he needed to get in touch
with Mr. Fraser that day regarding the past due Invoices.
Mr. Tracy stated that, if he did not get the accounts caught up,
the accounting department would take them away from him and they
would go into collections.
Later that day, Mr. Fraser responded:
“I will check on this ASAP.”
[Id., Exh. FF.]
Mr. Tracy spoke with Mr. Moritomo on the phone on
June 26, 2016.
Mr. Moritomo apologized for Precision Moving’s
failure to pay its Invoices, and he stated that Precision Moving
was preparing a written response to Marine Lumber’s June 22, 2016
demand letter (“Demand Letter”).
[Tracy Reply Decl. at ¶ 22.]
On or about July 5, 2016, Mr. Stadtler received a letter dated
June 27, 2016 from Mr. Moritomo (“6/27/16 Letter”).
Reply CSOF, Reply Decl. of Joshua D. Stadtler (“Stadtler Reply
Decl.”) at ¶ 3, Exh. GG.8]
The 6/27/16 Letter states, in
In response to your demand for an immediate
payment of $133,870.62 to William Fraser and
Michelle Rodrigues, Precision Moving . . . is
unable to pay the amount requested.
Our problem is that our office had in error over
booked jobs. . . .
The problem is this increase [sic] amount of
business had placed a strain on our financial
resources. This increased business increased
expenses. . . .
[Stadtler Reply Decl., Exh. GG.]
Mr. Moritomo asked Mr. Stadtler
to “bear with us and [he would] try to get some monies out soon.”
He stressed that filing a lawsuit would mean additional
expenses, and he stated that Precision Moving wanted to avoid
Mr. Stadtler states that the 6/27/16 Letter is
Mr. Moritomo apparently sent the 6/27/16 Letter to
Mr. Stadtler via certified mail, but he also sent it via email on
June 29, 2016. [Stadtler Reply Decl., Exh. HH.]
consistent with his conversation with Mr. Fraser on June 29,
2016, and he asserts that the Fraser Declaration’s description of
the conversation is not accurate.
[Stadtler Reply Decl. at ¶ 3.]
Mr. Stadtler states that the Moritomo Declaration inaccurately
describes the correspondence between Mr. Stadtler and
[Id. at ¶¶ 3, 5.]
Plaintiff argues that, in light of the evidence that it
has presented, this Court should reject Defendant’s attempts to
argue that it never received the materials that Precision Moving
ordered and its attempts to deny responsibility for the Invoices.
Plaintiff argues that it is entitled to summary judgment as to
Count I, in the amount of $130,690.00.
Plaintiff also reiterates
that there are no genuine issues of fact as to their action on
account claim, account stated claim, equitable claims, and quasicontract claims.
Plaintiff asserts that Defendant’s declarations
are clearly false and do not preclude summary judgment.
The crux of the Surreply is that the evidence before
this Court shows that the material facts of this case are
Defendant argues that Plaintiff cannot deprive
Defendant of its opportunity to conduct discovery, including
taking the depositions of the persons who submitted declarations
upon which Plaintiff’s Motion relies.
Defendant also submitted additional declarations by
Mr. Fraser and Mr. Moritomo.
[Surreply, Suppl. Decl. of
William A. Fraser (“Fraser Surreply Decl.”), Suppl. Decl. of
Ernest Moritomo (“Moritomo Surreply Decl.”).]
Mr. Fraser states
that he had one business dealing with Mr. Tracy in 2015, but he
was dissatisfied with Precision Moving’s products.
denied: placing any additional orders; picking up any materials
from Crown; receiving a email and/or invoice from Lisa McGrath
dated June 26, 2015; having an on-going business relationship
with Mr. Tracy and/or Marine Lumber; receiving an email on about
January 15, 2016 from Mr. Tracy regarding meeting in Hawai`i or
transmitting videos and/or photographs; and receiving any emails
from Lisa McGrath transmitting invoices.
at ¶¶ 3-6.]
[Fraser Surreply Decl.
He also disputes other portions of the Tracy Reply
Declaration and denies that Precision Moving received the seven
containers that Marine Lumber allegedly shipped to Precision
Moving in 2016.
He acknowledges speaking to Mr. Stadtler on or
about June 29, 2016, but denies making the statements that
Mr. Stadtler attributes to him.
[Id. at ¶¶ 7-8.]
Mr. Moritomo acknowledges speaking with Mr. Tracy, but
he denies making the statements Mr. Tracy attributes to him.
[Moritomo Surreply Decl. at ¶ 4.]
He states that he “did not
have an opportunity to look into the situation nor speak with
Precision Moving & Storage Inc.’s attorney prior to drafting and
sending” the 6/27/16 Letter.
[Id. at ¶ 5.]
Mr. Moritomo, when he wrote the 6/27/16 Letter, he “did not know
what debts Mr. Stadtler was referencing” but he wrote the letter
“to avoid an immediate lawsuit.”
Further, he asserts that
the 6/27/16 Letter merely promised to look into the account and
asked for Marine Lumber’s patience with Precision Moving’s
He states that Precision Moving’s
investigation ultimately confirmed that the Precision Moving “had
not ordered, did not want, and did not receive” the materials at
issue in this case.
Defendant urges this Court to either
deny the Motion outright or receive further briefing and conduct
a further hearing after Defendant has had the opportunity to
conduct adequate discovery.
The Court first turns to Count I.
The elements of a
breach of contract claim are “(1) the contract at issue; (2) the
parties to the contract; (3) whether plaintiff performed under
the contract; (4) the particular provision of the contract
allegedly violated by defendants; and (5) when and how defendants
allegedly breached the contract.”
Liberty Mut. Ins. Co. v. Sumo-
Nan LLC, Civil No. 14-00520 DKW-KSC, 2015 WL 2449480, at *3 (D.
Hawai`i May 20, 2015).
Establishing the existence of the
“‘an offer and acceptance, consideration, and
parties who have the capacity and the authority to
agree as they do.’” In re Doe, 90 Hawai`i 200,
208, 978 P.2d 166, 174 (1999) (quoting Dowsett v.
Cashman, 2 Haw. App. 77, 83, 625 P.2d 1064, 1068
(1981)). Further, “‘[t]here must be mutual assent
or a meeting of the minds on all essential
elements or terms in order to form a binding
contract.’” Carson v. Saito, 53 Haw. 178, 182,
489 P.2d 636, 638 (1971) (quoting Honolulu Rapid
Transit Co. v. Paschoal, 51 Haw. 19, 26-27, 449
P.2d 123, 127 (1968)).
York v. Jordan, CIVIL NO. 13-00311 DKW-RLP, 2014 WL 12596317, at
*7 (D. Hawai`i Oct. 27, 2014) (alteration in York).
Plaintiff presents an email dated January 19, 2016 from
Scott (email@example.com) to Bill Fraser
(firstname.lastname@example.org) in which Scott offered several
products at certain prices.
Later that day, William Fraser
(email@example.com) responded that he “WHAT [sic] TO
ORDER A LOAD OF 134.00 LIFT VAN.”
[Tracy Reply Decl., Exh. S.]
On January 29, 2016, Lisa McGrath emailed an invoice with the
same date in the amount of $18,760.00 for the shipment to
firstname.lastname@example.org, with copy to Scott.
Reply Decl., Exh. T at 1-2; Tracy Reply Decl. at ¶ 8 n.2 (stating
that the 1/29/16 invoice was for the order placed on 1/19/16).]
Plaintiff submitted an email dated February 26, 2016 from Joanne
Valoria of Inchcape to email@example.com and Scott
regarding the first shipment to Precision Moving.
Decl. at ¶ 10, Exh. U.]
Plaintiff also submitted an October 17,
2016 email to Scott from Ali Wang of Inchcape with the gate
transaction record for Marine Lumber’s first three shipments to
Precision Moving in 2016, including the shipment referenced in
[Id. at ¶ 11, Exh. V.]
Mr. Tracy states that he
authorized Inchcape to release the containers listed in Exhibit V
to Precision Moving.
[Id. at ¶ 11.]
According to Mr. Tracy, after Precision Moving received
the first shipment, Mr. Fraser orally informed him that Precision
Moving was satisfied with the product and intended to purchase
Precision Moving subsequently placed four phone
orders with Mr. Tracy,9 and those orders are reflected in the
invoices dated March 31, April 13, June 2, and June 3, 2016.
Lisa McGrath emailed those invoices to
firstname.lastname@example.org, with copy to Scott, on April 6,
April 13, June 2, and June 14, 2016, respectively.
n.3; L. McGrath Decl., Exh. T.]
[Id. at ¶ 9 &
Exhibit V provides shipment
information for the second and third shipments to Precision
Plaintiff provided a May 19, 2016 email from Mr. Tracy
to email@example.com, with copy to “Bill Frasure
[Tracy Reply Decl., Exh. X.]
The email included “a copy of a ‘Booking Confirmation’ from
Matson for Marine[ Lumber]’s fourth shipment to Precision
[Moving] and provided Ms. Santiago and Mr. Fraser with arrival
information for Marine[ Lumber]’s third shipment to Precision
According to Mr. Tracy, Ms. Santiago placed Precision
Moving’s fourth order during a telephone conversation with him.
[Tracy Reply Decl. at ¶ 13.]
[Tracy Reply Decl. at ¶ 13 (citations omitted).]
Plaintiff submitted a June 3, 2016 email from Scott to
firstname.lastname@example.org and “Bill Frasure
(email@example.com)” with the Booking Confirmation for
the fifth shipment to Precision Moving.
[Id. at ¶ 14, Exh. Y.]
This Court FINDS that Plaintiff has presented
sufficient evidence to establish their prima facie case that it
had five contracts with Precision Moving for the purchase of
materials and that Precision Moving breached the contracts by
failing to pay for the materials.
Because Plaintiff has carried
its initial burden on summary judgment, the burden shifts to
Defendant “to establish, beyond the pleadings, that there is a
genuine issue for trial.”
See Miller v. Glenn Miller Prods.,
Inc., 454 F.3d 975, 987 (9th Cir. 2006).
Defendant has submitted Mr. Fraser’s declaration
denying that either he or any of his employees entered into any
oral contracts with Marine Lumber on behalf of Precision Moving.
Moreover, his employees did not have authority to do so.
Decl. at ¶¶ 3-4.]
He also states that Precision Moving “did not
contract for or receive, and has no record of receiving [the]
materials [referred to in the 6/2/16 Invoice and the 6/3/16
Invoice], as well as others that Marine Lumber Company is suing
[Id. at ¶¶ 8-9.]
Mr. Fraser states that he did not respond
to or dispute the emails that Lisa McGrath sent transmitting the
Invoices because he never received those emails.
Surreply Decl. at ¶ 5.]
However, other evidence from Precision Moving itself
calls into question the plausibility of Mr. Fraser’s denials.
The Stadtler declaration states that he sent Mr. Fraser and
Ms. Rodrigues an email on or about June 29, 2016, and he spoke to
Mr. Fraser on that date.
[Stadtler Decl. at ¶ 7, Exh. H.]
was an email stating that day was the deadline for payment
referenced in the Demand Letter.
[Stadtler Decl., Exh. H.]
Stadtler Declaration also states that he sent two other emails to
Mr. Fraser, but he did not receive any response.
at ¶¶ 7-9, Exhs. I-J.]
The emails that Mr. Stadtler states that
Mr. Fraser did not respond to asserted that Precision Moving owed
a total amount of $135,370.82 and represented that Mr. Fraser
agreed to wire-transfer payment for one or more of the
outstanding invoices the next day.
[Stadtler Decl., Exh. I-J.]
Mr. Fraser acknowledges speaking with Mr. Stadtler on that
June 29, 2016, but he denies making the statements the Stadtler
Declaration attributes to him.
Mr. Fraser states that he
“informed Mr. Stadtler that Precision had no such contract with
Marine Lumber Company, that I could not possibly conceive of how
Marine Lumber Company was claiming Precision owed that much
money, and that I wanted to speak with an attorney for
[Fraser Decl. at ¶ 9.]
Yet, he states that, because
he never acknowledged the debt Marine Lumber alleged Precision
Moving owed, he “did not respond to Mr. Stadtler’s self-serving
[Id. at ¶ 11.]
This Court cannot determine issues of credibility on a
motion for summary judgment.
See Kauhako v. Hawaii Bd. of Educ.,
CIVIL NO. 13-00567 DKW-BMK, 2015 WL 5312359, at *7 (D. Hawai`i
Sept. 9, 2015) (citing Nelson v. City of Davis, 571 F.3d 924 (9th
Cir. 2009) (“[C]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.”)).
United States Supreme Court stated: “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 facts for purposes of ruling on
a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372,
This Court questions whether a reasonable jury would
believe that the president of a company would ignore emails from
the attorney representing another company in which the attorney
claimed that the president agreed to make payments upon invoices
from the second company when the president denied his company was
liable for those invoices.
Further, Mr. Moritomo’s response in the 6/27/16 Letter
to the Demand Letter stated that “Precision Moving . . . is
unable to pay the amount requested” and talks about Precision
Moving’s over-booking and the financial strain that the overbooking placed on the company.
[Stadtler Reply Decl., Exh. GG.]
Mr. Moritomo states that because of “Mr. Stadtler’s threats and
demands for an immediate response, [he] did not have an
opportunity to look into the situation nor speak with Precision
Moving & Storage Inc.’s attorney prior to drafting and sending”
the 6/27/16 Letter.
[Moritomo Surreply Decl. at ¶ 5.]
Mr. Moritomo did not have a chance to speak to Precision Moving’s
attorney, he does not state that he wrote the 6/27/16 Letter
before having a chance to speak to Mr. Fraser.
questions whether a reasonable jury would believe that either:
1) Mr. Moritomo – Precision Moving’s general manager – wrote the
6/27/16 Letter without speaking to Precision Moving’s president
and without knowing the president’s position on the Demand
Letter; or 2) Mr. Moritomo wrote the statements in the 6/27/16
Letter when he knew Mr. Fraser had taken the position that
Precision Moving were not liable for the Invoices.
This Court has carefully considered all of the evidence
before it and, while it appears that some of Precision Moving’s
evidence creates genuine issue of material fact, Precision
Moving’s evidence as whole comes close to being so “blatantly
contradicted by the record . . . that no reasonable jury could
See Scott, 550 U.S. at 380.
Although it is a close
question, this Court FINDS that there are genuine issues of
material fact that preclude the entry of judgment as a matter of
law as to Count I.
See Fed. R. Civ. P. 56(a).
therefore DENIES the Motion as to Count I.
Further, this Court FINDS that there are similar issues
of material fact as to Counts II, III, IV, V, and VI and DENIES
the Motion as to those claims.
On the basis of the foregoing, Plaintiff’s Motion for
Summary Judgment, filed August 5, 2016, is HEREBY DENIED.
denial of the Motion is WITHOUT PREJUDICE insofar as Plaintiff
may file a new motion seeking summary judgment after the record
is more fully developed.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 28, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARINE LUMBER COMPANY VS. PRECISION MOVING & STORAGE INC.; CIVIL
16-00365 LEK-RLP; ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY
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