Bassi & Bellotti S.p.A. v. Transcontinental Granite, Inc. et al
Filing
73
MEMORANDUM OPINION (c/m to Defendant Passarelli 8/11/09 sat). Signed by Judge Deborah K. Chasanow on 8/11/09. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BASSI BELLOTTI S.p.A. v. TRANSCONTINENTAL GRANITE, INC., et al. : : : : : Civil Action No. DKC 2008-1309
MEMORANDUM OPINION Presently pending and ready for resolution in this breach of contract action is a motion for summary judgment filed by Plaintiff Bassi & Bellotti S.p.A. ("Bassi & Bellotti") on its claims against one of the defendants, Transcontinental Granite, Inc.
("Transcontinental").
(Paper 15).
The issues are fully briefed
and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. motion will be denied. I. Background Plaintiff Bassi & Belotti is an Italian corporation registered to do business in Maryland. Defendant Transcontinental is a For the reasons that follow, Plaintiff's
company organized under the laws of the Commonwealth of Virginia with its principal place of business in Virginia. Defendant Thomas Passarelli is the president and director of Transcontinental. Transcontinental owned a chain of retail stores that sold kitchen and bathroom counter tops. Between October 11, 2006 and
November 11, 2007, Plaintiff sold a quantity of granite slabs to
Transcontinental. Plaintiff alleges that Transcontinental received the slabs but did not pay for them, and that as of November 22, 2008, Transcontinental owes Plaintiff 386,536.11.1 of the slabs, Passarelli allegedly sold After receipt to
Transcontinental
Defendant Artin Afsharjavan.
Plaintiff alleges that the sale of
Transcontinental to Afsharjavan does not comply with Maryland law and is fraudulent. According to Plaintiff, the intent of the sale Passarelli
was to avoid paying Plaintiff for the granite slabs.
maintains that there was no sale or transfer of assets. Plaintiff filed a complaint in this court on the basis of diversity jurisdiction, and subsequently filed an amended complaint on January 29, 2009, alleging claims of breach of contract, fraudulent transfer, and unjust enrichment.2 (Paper 30).
Plaintiff filed a motion for summary judgment on November 22, 2008. (Paper 15). II. Standard of Review It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
As will be discussed, Plaintiff contends that all payments should have been made in euros, not dollars. Transcontinental insists that the parties agreed that payment would be made in dollars only. The amendments do not affect the Transcontinental made in the original complaint. 2
2
1
claims
against
317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). In other words, if there clearly exists factual issues
"that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See Scott v. Harris, 127 S.Ct. 1769, 1774 A party who bears the burden of
(2007); Emmett, 532 F.3d at 297.
proof on a particular claim must factually support each element of his or her claim. Celotex Corp., 477 U.S. at 323. "[A] complete
failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Id. Thus, on those issues on
which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. 256; Celotex Corp., 477 U.S. at 324. See Anderson, 477 U.S. at
"A mere scintilla of proof, Peters v. must be
however, will not suffice to prevent summary judgment." Jenney, 327 F.3d 307, 314 (4th Cir. 2003). There
"sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249-50.
"If the evidence is merely colorable, or is not significantly 3
probative, summary judgment may be granted." omitted). III. Analysis
Id.
(citations
Plaintiff argues that it is entitled to summary judgment because there is no genuine Plaintiff issue of material fact that
Transcontinental
owes
386,536.11.
Transcontinental
counters that Plaintiff's motion for summary judgment should be denied for two reasons: (1) Plaintiff has not laid a sufficient foundation for the authenticity of the records it submitted in support of its motion; and (2) there are several genuine issues of material fact that preclude granting summary judgment to Plaintiff. A. Authentication
Plaintiff has submitted an affidavit from Maurizio Bassi, the president of Bassi & Belotti, as well as several invoices detailing Transcontinental's purchases from Plaintiff between 2005 and 2007. (Paper 15, Exs. A, B1 - B22). are self-authenticating Plaintiff asserts that the invoices Fed.R.Evid. 902(8) and 902(9).3
under
These rules provide: (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. Transcontinental incorrectly asserts that Plaintiff has attempted to authenticate the invoices under Fed.R.Evid. 803(6), the business records exception to the hearsay rule. As explained in Plaintiff's motion, Plaintiff seeks to authenticate these documents under Fed.R.Evid. 902(8) and 902(9). (Paper 15, at 2). 4
3
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. Plaintiff's records are not admissible under either rule. Invoices are not self-authenticating under Fed.R.Evid. 902(9). United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004), cert. denied, 543 U.S. 943 (2004). An invoice is an "itemized list of
goods or services furnished by a seller to a buyer, usu[ally] specifying the price and terms of sale." Black's Law Dictionary
833 (7th ed. 1999). "It is not commercial paper, nor is it a document `relating thereto to the extent provided by general commercial law.'" unlikely that the Pang, 362 F.3d at 1192. invoices are Moreover, it is under
self-authenticating
Fed.R.Evid. 902(8).
Although Mr. Bassi's affidavit was signed in
the presence of a notary, there is no certificate of acknowledgment accompanying the invoices. Plaintiff's invoices are nevertheless admissible under
Fed.R.Evid. 901(a).
Rule 901(a) provides that "[t]he requirement
of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(b) presents a non-exhaustive list of several The
illustrations of evidence sufficient to authenticate records.
first illustration under Fed.R.Evid. 901(b)(1) is "[t]estimony of [a] witness with knowledge . . . that a matter is what it is 5
claimed to be."
This showing is satisfied by "sufficient proof
that the evidence is what it purports to be and has not been altered in any material respect," and is not intended to serve as an "iron-clad" rule. United States v. Ricco, 52 F.3d 58, 61-62 (4th Cir. 1995). "The burden to authenticate under Rule 901 is not high -- only a prima facie showing is required." United States v.
Vidacak, 553 F.3d 344, 349 (4th Cir. 2009); see also United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir. 1985)("Once that prima facie showing has been made, the evidence should be admitted, although it remains for the trier of fact to appraise whether the proffered evidence is in fact what it purports to be."). Mr. Bassi states in his affidavit that he is the president of Bassi & Bellotti and the custodian of these records. Ex. A, Bassi Aff. ¶ 2). (Paper 15,
Bassi further states that he has personal
knowledge about the records, that the records were created pursuant to a course of business dealings between Plaintiff and
Transcontinental for goods sold, and that he affirms under penalty of perjury that they are true and correct. (Id. ¶¶ 3,4). Mr.
Bassi has made a prima facie showing that he has knowledge of the documents in question and that the documents are what Plaintiff claims, thus satisfying Fed.R.Evid. 901(a). Transcontinental insists that Plaintiff's records should not be admissible because they do not encompass the entire time period of the parties' dealings, do not reflect credits for payments that Transcontinental made, and reflect currency conversion rates that 6
were not agreed upon between the parties.
Transcontinental also
argues that Rule 901 requires factual specificity about how the electronically stored information was created, acquired, maintained and preserved. However, Rule 901(a) requires only a prima facie
showing to the court, "not a full argument on admissibility." Vidacak, 553 F.3d at 349. The district court's role is merely to
serve as a "gatekeeper" in determining whether the proponent has offered a satisfactory foundation from which the Id. jury could
reasonably find that the evidence is authentic.
As Mr. Bassi
has made a prima facie showing, he has laid a sufficient foundation for these records under Fed.R.Evid. 901(a). B. Genuine Issues of Material Fact in Dispute
Transcontinental also argues that there are several issues of material fact in dispute that preclude granting summary judgment in favor of Plaintiff. Passarelli, the president of Transcontinental, states in his affidavit that Transcontinental purchased granite from Plaintiff on open account terms for approximately eight years, for which Transcontinental paid Plaintiff approximately $8,000,000. (Paper 17, Ex. 1, Passarelli Aff. ¶ 4). Passarelli states that
Plaintiff's claim for 386,536.11 amounts to only five percent of the aggregate dollar value of the transactions between the parties over their eight year relationship. Passarelli insists that the
disagreement among the parties over this relatively small amount stems from: (1) a failure to credit Transcontinental's account for
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payments and set-offs; (2) currency conversion differences; and (3) accounting errors. 1. Failure to Credit Transcontinental for Payments and SetOffs First, Passarelli takes issue with several of the invoices Plaintiff has attached to its motion for summary judgment.
Passarelli insists that Transcontinental paid Plaintiff in full for the amounts listed on Plaintiff's Exhibits B2, B7, B21, and B22, which collectively amounts to $90,639.76, or 65,473.70. 15, Exs. B2, B7, B21, B22). (Paper
Passarelli further states that in
2007, Plaintiff delivered a variety of granite to Transcontinental that did not conform to Transcontinental's purchase order.
Specifically, Transcontinental requested a variety of granite known as Marylyn Blue, but Plaintiff delivered a variety of granite known as Amadeus, which Transcontinental timely rejected. points out that Plaintiff improperly billed Passarelli
Transcontinental
$12,037.38 for the Maryln Blue granite, as seen in Plaintiff's Exhibit B11. In (Paper 15, Ex. B11). Passarelli maintains that on five separate
addition,
instances in 2007, Plaintiff shipped goods to Transcontinental by using wood packing material that failed to meet the requisite standards. As a result of Plaintiff's actions, United States
Customs refused to allow the containers of granite to enter the country and returned them to Italy. United States Customs also
detained three other containers of granite that Plaintiff had 8
shipped
to
Transcontinental. delay in the
Passarelli of
states goods
that
the
significant
delivery
these
crippled
Transcontinental's ability to fill customer orders and caused irreparable damage, including a loss of customer goodwill.
Passarelli insists that Transcontinental is entitled to a setoff for Plaintiff's breach. Passarelli also states that over the course of the parties' eight year relationship, Transcontinental informed Plaintiff about numerous discrepancies between the size of the granite slabs recorded in Plaintiff's invoices and the actual size of granite slabs that Transcontinental received, as measured upon delivery. Passarelli contends that Plaintiff has not credited
Transcontinental for these size discrepancies. Plaintiff argues that Transcontinental has
In its reply, provided no
documentation that it paid for the amounts listed in Exhibits B2, B7, B21, and B22 of Plaintiff's motion. Plaintiff does not respond to Transcontinental's other arguments. 2. Currency Conversion Differences Passarelli states that the amount that
Second,
Transcontinental allegedly owes Plaintiff is in dispute because the parties never agreed on the currency exchange rate. As a result,
Passarelli asserts that differences arose between the parties' respective accounting due to mathematical rounding, the selection of different reference sources for the applicable exchange rates, and from applying different dates 9 for the exchange rate.
Passarelli insists that these differences comprise a substantial portion of Plaintiff's present claim against Transcontinental. Plaintiff counters that had Transcontinental made timely payments in dollars when the invoices were issued, Plaintiff would have been able to convert the payment to euros immediately and would have obtained what it should have, which is the increase in the value of the euro against the dollar in the intervening time. Plaintiff maintains that Transcontinental's insistence that there was a dispute as to whether the parties agreed to pay in euros or dollars is nothing more than a red herring designed to detract from Transcontinental's failure to pay Plaintiff for the delivered goods. 3. Accounting Errors
Finally, Passarelli states that Plaintiff's invoices are inaccurate and incomplete because they cover only a portion of the period of time within which the parties transacted business. In
addition, Passarelli contends that the invoices fail to take into account the payment terms between the parties and the changes in those terms over the course of their eight year business
relationship. agreed that
According to Passarelli, the parties generally Transcontinental would make monthly payments to
Plaintiff.
At times, the parties agreed that Transcontinental
would pay Plaintiff 1/3 of all outstanding invoices each month, but at other times agreed that Transcontinental would pay 1/7 of any outstanding balance owed to Plaintiff each month. 10 Passarelli
states that most recently, the parties agreed to settle the remaining balance of the account with payments to Plaintiff of $5,000 a month. Passarelli maintains that the parties also agreed
that Plaintiff would apply Transcontinental's payments to the most recent invoice first, thereafter paying down older invoices with the remaining credit. improperly invoices. Plaintiff counters that any discussion of an alleged applied Passarelli insists that Plaintiff has payments to the wrong
Transcontinental's
settlement between the parties is inadmissible, but provides no support for its assertion. The court presumes that Plaintiff is
referring to Fed.R.Evid. 408, which provides that statements made in compromise negotiations regarding a claim "are not admissible when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount." Plaintiff also
asserts that Defendant's assertion regarding settlement fails to comply with Md. Code Ann. Com. Law § 22-201(a)(1), which provides that a contract requiring payment of $5,000 or more is not
enforceable unless it is authenticated by a record. As previously explained, summary judgment is inappropriate where there are factual issues that can be reasonably resolved in favor of either party. Anderson, 477 U.S. at 250. Here, there are
several genuine issues of material fact that foreclose granting summary judgment to Plaintiff. Namely, there are disputes over how much money Transcontinental has already paid to Plaintiff, whether 11
Transcontinental
was
incorrectly
charged
for
a
shipment
it
rejected, and whether Transcontinental is entitled to a "set-off" for faulty shipments and size discrepancies in the granite slabs that Plaintiff sent to Transcontinental. IV. Conclusion For the foregoing reasons, Plaintiff's motion for summary judgment will be denied. A separate Order will follow.
/s/ DEBORAH K. CHASANOW United States District Judge
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