The Hellenic Ministry of National Defense et al v. Eagle Van Lines, Inc.
Filing
40
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 2/6/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
THE HELLENIC MINISTRY OF NATIONAL
DEFENSE, et al.
:
v.
:
Civil Action No. DKC 13-0828
:
EAGLE VAN LINES, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this contract
case are cross motions for partial summary judgment filed by
Plaintiffs
and/or
Counterdefendants
the
Hellenic
Ministry
of
National Defense, the Hellenic Armed Forces, and the Hellenic
Air
Force
Procurement
Service
(collectively,
“HAF”
or
“Plaintiffs”) (ECF No. 30) and Defendant and/or Counterplaintiff
Eagle Van Lines, Inc. (“EVL” or “Defendant”) (ECF Nos. 35 & 36).
The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, Plaintiffs’ motion will be granted in part.
Defendant’s motion will be denied.
I.
Background
A.
Factual Background
Unless otherwise noted, the following facts are undisputed.
Plaintiffs are units of the Greek government.
The Hellenic
Ministry of National Defense is a government cabinet department
responsible
for
managing
the
armed
forces
for
the
Hellenic
Republic.
The Hellenic Armed Forces are the combined military
forces of Greece.
Hellenic Air Force Procurement Service is a
government agency that engages vendors to transport and store
military goods for the Hellenic Ministry of National Defense.
(ECF No. 3 ¶¶ 1-3).
EVL is a freight forwarding company based
in Maryland.
(ECF No. 3 ¶ 4).1
entered
a
into
series
of
Beginning in 2005, Plaintiffs
contracts
with
EVL
to
transport
military goods and equipment from Greece to the United States,
within the United States, and from the United States to Greece.
(ECF No. 30-4 ¶ 4).
Regardless of the channels used by the
Hellenic Armed Forces to purchase particular goods, the goods
were shipped to EVL, which would receive them on Plaintiffs’
behalf and ship them to the appropriate branch of the Armed
Forces in Greece.
(Id.).
acquired
United
from
the
The military goods included items
States
via
foreign
military
sales
(“FMS”) or items purchased from vendors in the United States
through direct commercial sales (“DCS”).
George
Georgakopoulos
is
the
(ECF No. 35-2 ¶ 5).
President
of
EVL.
He
explained:
It was Eagle Van Lines’ responsibility, at
times,
to
receive
goods
shipped
from
overseas
and
transport
them
to
its
1
EVL’s
a moving and
the business
goods
for
countries.”
President, George Georgakopoulos states that EVL is
storage company. “Among other services[,] it is in
of transporting and storing commercial and military
domestic
and
international,
including
foreign
(ECF No. 35-2 ¶ 4).
2
warehouses, receive goods shipped by vendors
and store the goods in its warehouses,
receive goods from the United States under
the foreign sales and receive the items in
its warehouses.
Eagle Van Lines would pay
for the delivery if a third party shipped
the items to the warehouse or provide the
transportation[,] incurring the costs if it
picked up the goods from an international
shipment or from a vendor.
(Id. ¶ 7).
forwarder
for
“Throughout the time that EVL acted as freight
the
Armed
Forces,
EVL
would
be
paid
for
its
services with respect to a given item only after that item had
been received by the contractually determined Unit of each Armed
Forces’ Branch in Greece, in accordance with the payment terms
of the contracts and Hellenic Legislation.”
(ECF No. 30-4 ¶ 5).
In early 2009, Plaintiffs and EVL entered into Contract No.
100/09,
which
covered
EVL’s
provision
of
freight-forwarding
services from March 1, 2009 through November 30, 2009.2
6; ECF No. 30-6, at 36).
(Id. ¶
Article 3.1 of Contract 100/09 states:
The subject of this Contract is the transfer
– forwarding (FREIGHT FORWARDER) of air
transported materials of the HAF from Greece
to the U.S.A. overseas (OVERSEAS), within
the U.S.A. (DOMESTIC) and vice versa by the
CONTRACTOR.
(ECF No. 30-6, at 6).
Under Article 4.5.1.4 of Contract 100/09,
Defendant’s obligations included forwarding the materials within
2
Plaintiffs provide as exhibits to their motion the Greek
original and English translation of the applicable documents,
including Contract No. 100/09 and draft Contract No. 47/10
discussed below.
3
three
(3)
days
from
within the U.S.
their
arrival
(Id. at 9).
to
their
final
recipient
Article 8.3. of Contract No.
100/09 states:
The
Military
Attaches
will
repay
the
CONTRACTOR in U.S. dollars for the services
rendered by the contractor, within two (2)
months at the latest from the date they
received the required supporting documents,
as the case may be, which the competent
Services will receive in Greece, provided
that a relevant inspection determines that
they are appropriate.
(Id. at 19) (emphasis added).
Contract No. 100/09 was set to
expire on September 30, 2009, “but the contract provided that
EVL was obligated to continue to receive and forward materials
for two months after that expiration date, under the same terms
and conditions.”
(Id.) (emphasis added).
Thus, Contract No.
100/09 was in effect until November 30, 2009.
On August 18, 2009, EVL lost the procurement for freightforwarding
services
for
(ECF No. 30-4 ¶ 8).
the
period
after
November
30,
2009.
The new contract was awarded to EVL’s
competitor, Imperio-Argo Group.
(Id.).
George Georgakopoulos
testified during his deposition that “in 2009[,] there was a
procurement for freight forwarding services [] that permitted a
number
of
freight
Contract 05/09.”
forwarding
companies
to
(ECF No. 30-26, at 5).
make
a
bid
on
[]
EVL submitted a bid,
but the Greek government awarded the contract to Imperio-Argo.
(Id.).
EVL
objected
to
the
procurement
4
award
by
filing
an
appeal to the State Legal Council of the Hellenic Republic,
which
suspended
the
commencement
of
the
new
contract
Imperio Argo until the appeal could be resolved.
with
(ECF No. 3 ¶
13).
In
after
order
to
November
service
30,
transport
and
2009
Plaintiffs’
the
during
requirements
pendency
of
the
procurement appeal, Plaintiffs engaged in negotiations with EVL
regarding
the
terms
of
a
contract
that
would
govern
from
December 1, 2009 until the activation of a new contact with
Imperio-Argo.
negotiate
a
(ECF No. 30-4 ¶ 10).
draft
contract
–
The parties continued to
Contract
No.
47/10.
Mr.
Georgakopoulos stated that “[a] draft for negotiations only of a
working document referred to as 47/10 had been initialed by
representatives of the parties in January 2010.
There were
additional issues and discussions that remained unresolved which
discussions never resumed.”
added).
(ECF No. 35-2, at 6) (emphases
The parties disagree whether they were governed by the
terms of Contract No. 47/10 after Contract No. 100/09 terminated
on November 30, 2009.
George Georgakopoulos gave the following
testimony during his deposition:
Q: When did [] any contract between Eagle
Van Lines and any branch of the Hellenic
government end? Was it November 30, 2009?
A:
The last one, yes.
5
Q: And there
contract?
A:
has
been
since
then
no
Absolutely no contract.
(ECF No. 30-26, at 7).
Mr. Georgakopoulos also testified:
Q: Now looking at 47/10, at any point in
January of 2010[,] did Eagle Van Lines agree
to the terms of this contract?
A: Agreed?
agreed.
It was negotiated.
(ECF No. 30-26, at 5).3
It was never
Konstantinos Katirtzidis, Captain in the
Hellenic Air Force General Staff, declared that “[a]lthough the
draft contract [Contract No. 47/10] that had been signed by EVL
[]
was
still
subject
to
final
approval
by
the
Minister
of
National Defense, both [Hellenic Air Force] (on behalf of the
Armed Forces) and EVL proceeded on [the] basis that it was in
effect.
EVL continued to provide freight-forwarding services,
and [Hellenic Air Force] continued to accept the benefit of
those
services,
with
compensated for them.”
the
knowledge
that
EVL
expected
to
be
(ECF No. 30-4 ¶ 13).
3
In his declaration, Mr. Georgakopoulos stated: “[n]o one
on behalf of Eagle Van Lines ever signed or executed a final
document purporting to be Contract 47/10 and for the first time
during the course of discovery in this case did Eagle Van Lines
ever see a document titled as 47/10 which purports to [bear] the
signature of an individual whose stamp indicates is a[n] officer
in
the
Financial
Control
–
Audit
Division,
Symeon
Grammatopoulos.
It b[ears] the signature date of May 4, 2010.
It is unilaterally signed with no other signatures appearing
anything for ‘The Director’ or for ‘The Contractor.’” (ECF No.
35-2 ¶ 16).
6
Plaintiffs assert that on January 25, 2010, they learned
that “EVL had included a counterfeit document (a ‘Letter of
Guarantee’ that had supposedly been issued by Eagle Bank) in its
unsuccessful application during the procurement for the contract
that
had
been
awarded
to
[Imperio
Argo].”
(Id.
¶
14).
Plaintiffs maintain that as a result of that discovery, they
terminated EVL’s services as freight forwarder.
(Id. ¶ 15).
Specifically, Plaintiffs provide as an exhibit to their motion a
decision
from
Evangelos
Venizelos,
the
Minister
of
National
Defense, dated February 12, 2010, which states:
We approve the discontinuation, effective
upon receipt of the present resolution, of
the air transportation of materials of the
Armed Forces (A.F.) from Greece to the
U.S.A., within the U.S.A. and vice-versa by
the company “EAGLE VAN LINES” due to their
attempt
to
defraud
the
public
sector,
according to the rationale of the present
resolution.
(ECF No. 30-11, at 4) (emphasis added).
EVL contends that it
received Plaintiffs’ February 12, 2010 letter terminating its
services on February 24, 2010.
(ECF No. 35-2, ¶ 13, declaration
of George Georgakopoulos) (“On February 24, 2010, I received by
hand
delivery
National
and
Defense
by
email
from
Mr.
the
letter
Nikolasos
from
the
Klothakis
Minister
who
was
of
the
liaison officer placed in the offices of Eagle Van Lines by the
Hellenic Air Force as a direct attache authorized to approve
transportation and resolve issues that might arise under the
7
freight forwarding contracts.”)).
fraudulent letter of guarantee.
EVL also denies submitting a
(See ECF No. 35-2 ¶ 10 (“Eagle
Van Lines did not author nor submit an alleged letter of credit
purporting to be from Eagle Bank bearing a date of April 11,
2009.”)).4
There is some disagreement between the parties about the
chain of events following the termination of EVL’s services.
Plaintiffs
contend
that
they
“instructed
EVL
that
all
unclassified goods in its possession belonging to the Hellenic
Armed Forces were to be forwarded to another contractual freight
forwarder of the Ministry of Defense, Stellar Maritime.”
No. 30-4 ¶ 17).
(ECF
According to Plaintiffs, “EVL refused to comply
with that instruction unless the Armed Forces first paid on all
EVL
invoices
that
EVL
claimed
it
was
owed
charged by EVL since February 12, 2010.”
and
(Id.).
storage
fees
On February
24, 2010, George Georgakopoulos wrote the following letter to
Nikolaos Klothakis, Wing Commander for the Hellenic Air Force:
4
Mr. Georgakopoulos declared:
I have no personal knowledge of who prepared
such a document, however, I can state
affirmatively that at the same period of
time as said document is claimed to have
been submitted by Eagle Van Lines, we
already had a valid and existing letter of
credit on file with [the] Greek government
from M&T Bank.
(ECF No. 35-2 ¶ 10).
8
In response to the subject matter of your
letter, we hereby inform you that we accept
the decision of your Service, that is, for
our company to deliver all materials that
are in our warehouses to the transportation
company
you
referenced
in
your
letter
[Stellar Maritime], but only under the
following conditions:
a) Until the day of the scheduled
delivery of the materials, every amount due
by the Greek Government must have been
repaid to our company, which to date amounts
to USD 2,746,000.36
b)
A
complete
inventory
of
all
materials of the Armed Forces, in our
warehouses must be conducted immediately and
prior to every delivery of any material
c)
Official
notification
to
our
company, by the competent DSS service, for
the
suitability
and
approval
of
the
warehouse space of the company STELLAR
MARITIME LTD C/O V. ALEXANDER AND CO INC.
(ECF No. 30-31, at 2) (emphasis added).
According to Defendant,
“Eagle Van Lines began to receive solicitations from several
individuals
claiming
receipt
its
of
to
outstanding
invoices to be paid.”
contends
that
have
certain
the
ability
invoices
demanding
(ECF No. 35-2 ¶ 11).
Greek
to
officials
affect
money
Eagle’s
for
the
In other words, EVL
attempted
to
solicit
bribes as a condition to paying the outstanding invoices owed to
EVL.5
5
Mr. Georgakopoulos declares that “[t]he solicitations for
money came from Asterios Koulouktsis, commander of the supply
depot (Kefa) of Hellinic Air Force, Mr. Paliagas, commander of
the procurement agency of the Hellenic Air Force, Mr.
9
According
to
Plaintiffs,
“[a]fter
terminating
EVL’s
services as freight forwarder, [they] took steps to ensure that
goods would no longer be shipped to EVL.
Those steps included
notifying the U.S. agency that oversees the [Foreign Military
Sales] program and various commercial vendors.”
18).
EVL,
on
the
other
hand,
maintains
(ECF No. 30-4 ¶
that
“the
Greek
government did not act to alter the name of Eagle Van Lines as
its freight forwarder until such time on or after March 15,
2010.
The
shipments
to
Eagle
Van
Lines
continued
until
approximately May 10, 2010 again, without [their] solicitation
or involvement, in causing the items to be forwarded to [EVL’s]
warehouse.”
(ECF No. 35-2 ¶ 13).
Plaintiffs believe that EVL
wrongfully continued to accept goods on behalf of the Hellenic
Armed Forces and refused to turn them over to Stellar Maritime
without first receiving compensation on all unpaid invoices and
storage
fees.
“remained
on
EVL
the
holds
a
different
government[’s]
view,
Military
stating
Assistance
that
it
Programs
Address Directory (MAPAC) for some period of time up to March
15, 2010, if not later, which resulted in the shipment to Eagle
Kobothleklas, commander of forwarding division, Mr. Klothakis,
the liaison officer of the Hellenic Air Force, Mr. Yialamidis,
director in the directorate of economics and also a director of
the Hellenic Air Force support command finance directorate
during the period within Spring 2010 until the Spring 2011, Mr.
Georgopoulos, Air Attache to the Greek Embassy, Mr. Dimitrios
Kafetzopoulos, procurement division to Greek Embassy 2009 to
2012.” (ECF No. 35-2 ¶ 11).
10
Van Lines of items for the Greek government.
Many of those
items were shipped Code 4, meaning the freight charges had to be
paid on delivery.”
(ECF No. 35-3 ¶ 10).
EVL continues to store many items in its warehouse that it
received during varying time periods.
Defendant maintains that
as of May 5, 2014, “Eagle Van Lines is owed $1,697,233.90 in
total
unpaid
invoices
of
which
$1,577,430.70
is
due
under
Contract 100/09 and for the period between December 1, 2009 to
February
24,
2010,
together
charges and carrier charges.”
with
interest,
storage,
(ECF No. 35-2 ¶ 18).
freight
According
to Plaintiffs, the military goods and equipment held by EVL
include:
military
transport
airplanes;
military
helicopters;
training aircrafts for pilot officers; aircraft spare parts; and
ground support equipment.
(ECF No. 3 ¶ 32).6
6
Plaintiffs assert that EVL is holding the disputed goods
in storage facilities in Temple Hills, Maryland and Jamaica, New
York.
(ECF No. 3 ¶ 33).
In October 2013, as part of the
discovery process in this action, Konstantinos Vlassis, Colonel
in the Hellenic Air Force and the Director of the General
Staff’s Logistics Directorate, “supervised and participated in
an inspection and inventory of the goods and equipment
[allegedly] belonging to [the Hellenic Armed Forces] and to the
Hellenic Army and Hellenic Navy that is being held by [EVL] in
its storage facility in Temple Hills, Maryland.” (ECF No. 30-12
¶ 3). Both parties attach various spreadsheets to their motions
reflecting the materials allegedly held by EVL.
As will be
discussed below, there appears to be inconsistency in the
parties’ records as to the total number of items held by EVL and
the dates of receipt. (See, e.g., ECF No. 37-4, at 5-35). EVL
apparently has no record of receiving at least some of the goods
Plaintiffs accuse it of holding.
11
B.
Procedural Background
Plaintiffs filed a complaint on March 18, 2013.
1).
(ECF No.
They filed an amended complaint on June 14, 2013, asserting
the following causes of action: (1) conversion (count I); and
(2) breach of contract (count II).
Plaintiffs seek declaratory
judgment and injunctive relief, which they designate as counts
III and IV of the amended complaint.
(ECF No. 3).
Defendant
answered the complaint (ECF No. 7), and counterclaimed against
Plaintiffs
requests
a
for
breach
declaratory
of
contract
judgment
and
(ECF
No.
punitive
relief it includes as separate causes of action.
5-6).
8).
Defendant
damages,
which
(ECF No. 8, at
Plaintiffs answered the counterclaim on August 9, 2013.
(ECF No. 12).
Plaintiffs moved for partial summary judgment on April 15,
2014.
(ECF No. 30).
Defendant opposed the motion and also
cross-moved for partial summary judgment.
(ECF Nos. 35 & 36).
Plaintiffs filed a reply in further support of their motion for
partial
summary
opposed
Defendant’s
Both parties request partial summary judgment.
Rule 56(a)
cross-motion.
II.
judgment
in
which
they
(ECF No. 37).
Standard of Review
of the Federal Rules of Civil Procedure, permits a party to move
for summary judgment or partial summary judgment by identifying
“each claim or defense — or the part of each claim or defense —
12
on
which
summary
judgment
is
sought.”
(emphasis
added).
“[P]artial summary judgment is merely a pretrial adjudication
that certain issues shall be deemed established for the trial of
the
case.
This
adjudication
. . .
serves
the
purpose
of
speeding up litigation by” narrowing the issues for trial to
those over which there is a genuine dispute of material fact.
Rotorex Co. v. Kingsbury Corp., 42 F.Supp.2d 563, 571 (D.Md.
1999) (internal quotation marks omitted) (noting that “numerous
courts have entertained and decided motions for partial summary
judgment addressing particular issues”).
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party
is
entitled
to
judgment
as
a
matter
of
law.
See
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);
Anderson
(1986).
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
250
Once a properly supported motion for summary judgment
is filed, the nonmoving party is required to make a sufficient
showing on an essential element of that party’s claim as to
which that party would have the burden of proof to avoid summary
judgment.
Celotex, 477 U.S. at 322–23.
Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material
fact,
and
the
moving
party
is
plainly
judgment in its favor as a matter of law.
13
In
entitled
to
Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249 (1986), the Supreme Court
explained that, in considering a motion for summary judgment,
the “judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”
A dispute about a material fact
is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id. at 248.
Thus,
“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”
Id. at 252.
In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”
Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting
United
States
v.
Diebold,
Inc.,
369
U.S.
654,
655
(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence
in
support
The mere existence of a “scintilla” of
of
the
non-moving
party's
case
is
sufficient to preclude an order granting summary judgment.
not
See
Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
Shin v.
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
14
Indeed,
this
court
has
an
affirmative
obligation
to
prevent
factually unsupported claims and defenses from going to trial.
See
Drewitt
v.
Pratt,
999
F.2d
774,
778–79
(4th
Cir.
1993)
(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
III. Analysis
A.
Plaintiffs’ Motion for Partial Summary Judgment
1.
Plaintiffs’ Claims
Plaintiffs
argue
that
they
are
“entitled
to
summary
judgment on [their] claim to recover the goods held by EVL and
to
summary
damages.”
amended
judgment
as
to
liability
on
[their]
(ECF No. 30-1, at 15) (emphases added).
complaint
essentially
contains
claims
claims
for
Plaintiffs’
for
breach
of
contract and conversion; Plaintiffs also request injunctive and
declaratory relief as separate counts in the amended complaint.
(ECF
No.
3,
at
6-8).
Plaintiffs
seek
the
return
of
their
property that they allege was converted, but do not clearly
reference
the
legal
mechanism
for
obtaining
such
Plaintiffs’ motion states:
A defendant who has tortuously detained
personal property belonging to the plaintiff
may be ordered to return the property. Such
a remedy is commonly granted by way of a
writ of replevin.
Although the complaint
here seeks to recover the goods from EVL by
a different route – a request for injunctive
relief, in conjunction with a claim for
conversion – the difference is one of
terminology, not of substance.
Regardless
15
relief.
of how the claim is labeled, the fact is
that the Court can and should direct EVL to
return the goods to [Plaintiffs].
(ECF No. 30-1, at 25) (emphasis added).
Plaintiffs have not
supplied any authority for the proposition that the court can
direct the return of property irrespective of whether they have
instituted a replevin action.
Indeed, in Wallander v. Barnes,
341 Md. 553, 561 (1996) – a case cited by Plaintiffs – the court
commented that “[t]he issue of the proper measure of damages
necessarily involves classifying the cause of action, at least
as to whether it is replevin, and, if so, the extent to which
damages
are
awardable
in
replevin.”7
(emphasis
added).
Plaintiffs are the “master[s] of [their] complaint,” and must
properly plead causes of action which would entitle them to the
Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir.
relief sought.
1996); EDI Predcast, LLC v. Carnahan, 982 F.Supp.2d 616, 632
(D.Md.
2013)
(“But
it
is
not
clear
that
Plaintiff
ever
has
thought seriously about the nature of its claims, the necessary
elements and proofs, or even the simple question of what forms
of
damages
it
consideration
expects
is
to
required
collect
by
and
how,
Fed.R.Civ.P.
even
though
11(b).
such
Neither
party’s summary judgment briefing provided a detailed (or, in
7
Both parties cite to Maryland law throughout their
memoranda, conceding that Maryland law applies notwithstanding
Article 25.1 of Contract No. 100/09, which states that “[a]ny
claim or dispute concerning the interpretation, performance or
validity of this Contract will be governed by [] Greek laws.”
16
many cases, even a sufficient) discussion of the elements and
proofs required to make out a claim.”) (emphasis added).
Judge
Blake
explained
in
Sprint
Nextel
Corp.
v.
Simple
Cell, Inc., Civ. No. CCB-13-617, 2013 WL 3776933, at *8 (D.Md.
July 17, 2013):
In
Maryland,
the
common
law
tort
of
conversion contains two elements.
First,
the plaintiff must prove the defendant
exerted “any distinct ownership or dominion
. . . over the personal property of another
in denial of his right or inconsistent with
it.”
Darcars Motors of Silver Spring, Inc.
v.
Borzym,
379
Md.
249,
260
(2004)
(quotation omitted). “This act of ownership
for conversion can occur either by initially
acquiring the property or by retaining it
longer than the rightful possessor permits.”
Id.
Second, the defendant must have “an
intent to exercise dominion or control over
the goods which is in fact inconsistent with
the plaintiff’s rights.”
Id. at 836.
Similarly, an action for replevin permits a
plaintiff to recover “personal property that
is wrongfully detained by the defendants.”
Ganter v. Kapiloff, 516 A.2d 611, 612
(Md.App.
1986);
see
also
McClung-Logan
Equipment Co. v. Thomas, 172 A.2d 494, 498
(Md. 1961) (“[I]n order to maintain an
action of replevin the plaintiff must prove
his right to immediate possession at the
time the writ issues.”).
Importantly,
“[t]he
measure
of
damages
in
an
action
for
conversion of personal property [generally] is the fair market
value of the property at the time of conversion, with legal
interest thereon to the date of the verdict.”
Transpacific Tire
& Wheel, Inc. v. Orteck Intern., Inc., Civ. Action No. DKC 2006-
17
0187, 2010 WL 1375292, at *12 (D.Md. Mar. 30, 2010) (quoting
Keys v. Chrysler Credit Corp., 303 Md. 397, 415 (1985)).
“When
[] the value of the property detained is the same upon its
return,
[]
damages
property.”
An
action
obtain
measured
by
the
loss
of
use
of
the
Postelle v. McWhite, 115 Md.App. 721, 728 (1997).
for
replevin,
possession
detained
are
by
the
of
on
the
personal
defendant.”
other
hand,
property
“is
that
Ganter,
69
designed
is
Md.App.
to
wrongfully
at
100;8
Wallander, 341 Md. at 561 (“Replevin ‘may be said to be the
appropriate remedy in all cases where the object of the suit is
to recover possession of specific goods and chattels, to the
possession of which the plaintiff claims to be entitled at the
time of instituting the suit.’”) (quoting 2 J. Poe, Pleading and
Practice § 425, at 417 (1925 Tiffany Ed.)).
Assuming
Plaintiffs
could
obtain
the
requested
relief
(e.g., release of goods held by EVL) via a conversion claim,
they must show that Defendant’s detention of the property is
wrongful.
“[T]he gist of a conversion is not the acquisition of
the property by the wrongdoer, but the wrongful deprivation of a
person of property to the possession of which he is entitled.”
8
Interestingly, Ganter is a case cited by Plaintiffs for
the proposition that a defendant who tortuously detains personal
property may be ordered to return it. Ganter was an action for
replevin, however, not conversion.
18
Baltimore & O.R. Co. v. Equitable Bank, N.A., 77 Md.App. 320,
325 (1988).
Plaintiffs argue:
In considering the parties’ contractual
rights and duties, it is necessary to
consider three separate periods of time,
because the source and extent of those
rights and duties differed during each
period:
1. the period through the expiration
Contract 100/09 on November 30, 2009,
of
2. the period from December 1, 2009 through
February 12, 2010[9] – i.e., between the
expiration
of
Contract
100/09
and
the
termination of EVL’s services, and
3. the period after the termination of EVL’s
services.
(ECF No. 30-1, at 15) (emphasis added).
a.
March
100/09)
It
is
1,
2009
undisputed
–
November
that
30,
Contract
2009
No.
(Contract
100/09
No.
covered
Defendant’s provision of freight-forwarding services from March
1, 2009 through November 30, 2009.
(ECF No. 30-4 ¶ 6).
The
contract expired on September 30, 2009, but obligated EVL to
continue to receive and forward materials for two months after
the expiration date under the same terms and condition, thus
9
Although the letter from the Minister of Defense
terminating EVL’s services is dated February 12, 2010, it states
that the discontinuation of EVL’s services is “effective upon
receipt of the present resolution.”
(ECF No. 30-11, at 4).
Defendant contends that Mr. Georgakopoulos received the February
12, 2010 letter on February 24, 2010. (See ECF No. 35-2 ¶ 13).
Accordingly, the termination became effective on February 24,
2010.
19
Contract No. 100/09 terminated on November 30, 2009.
Plaintiffs
are
correct
condition
Defendant’s
that
Contract
delivery
of
No.
goods
100/09
on
(Id.).
did
not
Plaintiffs’
satisfaction of their payment obligations under the contract.
Article
4.5.1.4
of
Contract
No.
100/09
states
that
EVL’s
obligations include “forwarding of the materials in the U.S.A.
within three days from their arrival to their final recipient
within the U.S. [] by air or by road depending on the orders of
the Hellenic Armed Forces.”
added).
(ECF No. 30-6, at 9) (emphasis
Similarly, Article 16.1 of Contract No. 100/09 states:
The
maximum
time
from
the
date
the
contractor [EVL] will receive the materials
in the U.S.A. until the date of shipment
bound for Greece [] of the Armed Forces or
the Air Force will be three (3) business
days
from
the
date
of
their
customs
clearance. . . .
Similarly, for materials
destined to various parts of the U.S.A. and
materials originating in Greece, the maximum
time will be three (3) working days from
their arrival and their customs clearance at
U.S. airports.
(Id. at 25) (emphasis added).
100/09,
within
on
two
the
(2)
other
hand,
months
supporting documentation.
from
The payment terms in Contract No.
require
Plaintiffs
receiving
an
to
invoice
repay
EVL
and
all
Specifically, Article 8.3 states:
The
Military
Attaches
will
repay
the
CONTRACTOR [EVL] in U.S. dollars for the
services rendered by the contractor, within
two (2) months at the latest from the date
they
received
the
required
supporting
documents, as the case may be, which the
20
competent Services will receive in Greece,
provided
that
a
relevant
inspection
determines that they are appropriate.
(ECF No. 30-6, at 19) (emphasis added).
Mr. Georgakopoulos,
EVL’s President, also testified that Contract No. 100/09 did not
permit any fees for storage and did not allow EVL to “withhold
goods and not forward them on.”
Defendant
appears
to
(ECF No. 30-26, at 5, 9).
argue
that
its
retention
of
goods
received during the period when the parties were governed by
Contract No. 100/09 is justified by way of two statutory liens:
a warehouseman’s lien and carrier’s lien.
the
right
to
exercise
both
a
It states, “EVL has
[w]arehouse[man’s]
lien
and
a
[c]arrier’s lien for its pre-payment of transportation and other
associated
charges
in
fulfillment
of
its
duties
parties[’] contract and post contract actions.”
at 12) (emphasis added).
under
the
(ECF No. 35-1,
Defendant contends that “a statutory
warehouseman’s lien can be created on goods covered by a bill of
lading, which were shipped to EVL.”
also
asserts
that
as
a
freight
(Id. at 13).
forwarder,
EVL
Defendant
“had
to
be
involved in the storage of goods. . . . There can be no question
that EVL[’s] duties include holding and safekeeping the goods
and its work in this capacity includes storing.”
(ECF No. 35-1,
at 13-14).
Thus, Defendant seems to take the position that
because
performed
it
certain
storing
functions
under
the
contract, it could withhold goods in storage (that it received
21
during the time period when Contract No. 100/09 governed the
parties’
relationship)
until
Plaintiffs
paid
outstanding
invoices.
Plaintiffs disagree that any lien applied during the period
when the parties’ dealings were governed by Contract No. 100/09.
As Plaintiffs contend, “[g]iven how quickly EVL was supposed to
forward
goods
after
receiving
them,
its
intended
role
as
a
forwarder was by its nature inconsistent with any suggestion
that it has been retained to provide storage services.”
No. 30-1, at 24).
(ECF
Indeed, EVL’s President testified during his
deposition that there was “no storage involved” under the terms
of Contract No. 100/09.
Even if EVL performed storage functions
in its capacity as freight forwarder generally, under the terms
of Contract No. 100/09, it was obligated to forward goods it
received within three (3) business days; nothing in the contract
suggests that it could condition the release of goods it was
required to forward within three (3) business days on payment of
outstanding invoices by Plaintiffs.
Indeed, Article 4.5.1.1 of
Contract No. 100/09 states that EVL’s obligations included:
Receives
the
cargo
from
the
customs
clearance area of the A/P “El. Venizelos”
and provides for their transportation by air
to the distribution center in the U.S.A., in
appropriate
storage
areas
approved
for
storage of classified materials by the
appropriate
U.S.
Services,
ensures
the
provision of the necessary means for loading
and
unloading
and
the
appropriate
22
transportation means to easily receive,
safely retain and transport the materials
they received for further forwarding up to
their final recipient within the U.S.A.
(ECF
No.
30-6,
at
8)
(emphasis
added).
Similarly,
Article
4.5.2.3 of Contract No. 100/09 states that EVL:
Pays the airfare for the transportation of
the materials from the U.S.A. to Greece and
other expenses (such as expenses to keep –
store the materials at the exporting A/P,
storage expenses of the A/L, etc.
(Id. at 9) (emphasis added).
Any storage functions performed by
EVL were built into the express terms of the contract, but did
not entitle EVL to withhold goods received during the contract
period until Plaintiffs paid outstanding invoices.
The idea
that EVL could assert any lien on the goods it received during
the effective period of Contract No. 100/09 is inconsistent with
its obligations to forward such goods within three (3) business
days under the terms of its express contract with Plaintiffs.
See, e.g., Clark Bros & Co. v. Pou, 20 F.2d 74, 76 (4th Cir.
1927)
(“A
lien
cannot
arise,
where,
from
the
nature
of
the
contract between the parties, it would be inconsistent with the
expressed terms or the clear intent of the contract” (quoting
Randel v. Brown, 43 U.S. 406 (1844)).
Insofar
as
Defendant
holds
goods
in
storage
that
were
received during the effective period of Contract No. 100/09 –
from March 1, 2009 until November 30, 2009 – Plaintiffs are
23
entitled
to
the
release
of
such
goods.
A
dispute
remains,
however, regarding what goods were received during this time
period and when they were received, which precludes the court
from ordering any property released at this stage.10
b.
December 1, 2009 – February 24, 2010
The
next
governed
issue
after
the
is
how
the
termination
parties’
of
relationship
Contract
No.
was
100/09.
Konstantinos Katirtzidis,11 a Captain in the Hellenic Air Force
General Staff assigned to the Economics Directorate, declared
that in the middle of December 2009, after Contract No. 100/09
had
expired,
“[Plaintiffs]
and
EVL
engaged
in
negotiations
regarding the terms of a contract [Contract No. 47/10] that
would
govern
the
period
from
December
1,
2009,
activation of the new contract with [Imperio-Argo.]”
until
the
(ECF No.
10
The spreadsheets which are part of the record provided by
the parties differ over the date EVL received certain goods,
which impacts the parties’ obligations. An updated spreadsheet
provided by Plaintiffs reflecting the universe of goods
purportedly
held
by
EVL
(ECF
No.
37-4)
reflects
some
discrepancies between the dates Plaintiffs attest an item was
received as compared to the date provided by EVL. Moreover, for
some of the items, the column “Date Received According to EVL
Records” shows EVL not having received certain items at all.
Furthermore, for about a dozen items, the date received by EVL
according to Plaintiffs’ records goes back to 2004 and predates
Contract No. 100/09. (See ECF No. 37-4, at 5). At this stage,
such inconsistencies in the parties’ records preclude ordering
any goods released.
11
Captain Katirtzidis asserts that he “was involved in all
aspects of the discussions, negotiations, and meetings in late
2009 and afterwards regarding [Plaintiffs’] dealings with
[EVL].” (ECF No. 30-4 ¶ 3).
24
30-4 ¶ 10) (emphasis added).
Capital Katirtzidis further states
in his affidavit:
In
early
January
2010,
HAF
and
EVL
tentatively agreed on the terms of a new
contract.
HAF sent EVL a draft contract
containing those terms, and EVL returned a
signed copy to HAF within the context of the
negotiations
procedure,
for
final
consideration and approval by the Minister
of Defense.
(Id. ¶ 11) (emphasis added).
EVL contends, however, that it
initialed a draft of Contract No. 47/10 only for purposes of
submitting
it
to
Plaintiffs
for
further
negotiation.
Georgakopoulos of EVL stated:
A. No. . . . [B]y initialing something, a
document, it means that you have to submit
this paperwork.
It’s pretty much as a []
verification,
a
verification
that
you
submitted that document.
[] [A] lot of
other
countries
use
exactly
the
same
process.
But [] it’s not a contract until
it’s really signed.
Q: But if you had found any of the terms
objectionable, you would not have initialed
the contract, correct?
A: Not necessarily, because usually those
contracts would get negotiated before even
they get signed.
Q: So your answer that the draft was
negotiated and signed by Eagle Van Lines and
George Georgakopoulos is not accurate?
A: The draft was negotiated and actually not
signed.
It should say, you know, we place
our initials on it. That’s it.
25
Mr.
Q: And why did you place your initials on
it? What does that mean?
A: This is a part of the process.
[]
Anything you submit, you have to put your
initials on it.
Q: So you submitted it?
A: Submit, yeah.
Submit only.
(ECF No. 30-26, at 7) (emphases added).
portions
of
Mr.
Georgakopoulos’s
Plaintiffs reference
testimony
stating
that
the
terms of Contract No. 47/10 were offered by EVL to HAF for
acceptance, and that such terms were accepted because HAF took
the benefit of the offer.
(ECF No. 30-1, at 18).
In his
deposition testimony, however, Mr. Georgakopoulos stated that
the terms offered would have been renegotiated and would not
have comprised the final, binding contract:
Q: Under Article 5 in 47/10, Declaring the
Contractor in Default, Eagle Van Lines is in
default
if
it
does
not
fulfill
its
contractual obligations, it says, which
includes in particular continuous failure to
timely transport the materials within the
specified time limits of the present terms.
[Article 5.1] . . . [I]f this contract had
been in effect, isn’t it true that [] the
fact that Eagle Van Lines withheld goods
received during the time of this contract
would have put it in default under Article
5?
A: No
Q: And why is that?
A: Hypothetically, if this contract was
going to be signed, it definitely would have
26
been renegotiated.
Therefore, none of this
would have been in here, I promise you that,
because by then when they invite us back to
go and sign the contract in April we already
had the experience.
So we wouldn’t sign
something [that] wouldn’t have any storage
fees included.
(ECF No. 30-26, at 8-9) (emphases added).
The parties dispute whether Contract No. 47/10 was finally
executed by both sides, but this disagreement does not create a
genuine dispute of material fact with respect to whether EVL’s
detention
of
wrongful.
goods
received
during
this
time
period
was
Even if Contract No. 47/10 was not in effect, the
parties continued to operate under the same terms as Contract
No. 100/09 with respect to shipment of goods and payment for
freight-forwarding
Georgakopoulos
services
testified
by
during
Plaintiffs.
his
Indeed,
deposition
that
Mr.
from
December 1, 2009 until February 24, 2010, EVL continued to ship
goods “with no issues until the [termination] decision [from]
Mr. Venizelos [the Minister of National Defense] came up.”
No. 30-26, at 12).
(ECF
Mr. Georgakopoulos further testified that
EVL continued billing under the terms of Contract No. 100/09.
(Id.).
Regardless
governed
by
Contract
of
whether
No.
100/09
the
or
parties’
47/10
dealings
during
this
were
time
period, neither contract allowed EVL to condition the release of
goods received from December 1, 2009 until February 24, 2010 on
payment of all outstanding invoices by Plaintiffs.
27
Much like in
Contract No. 100/09, the terms of Contract No. 47/10 required
EVL to forward the goods within three (3) business days, and
Plaintiffs had to pay within two (2) months from receiving all
supporting documentation.
Contract No. 47/10).
(See Articles 3.3 and 9.5.a(4) of
Thus, the same reasons discussed above for
why Defendant cannot assert a statutory lien during the parties’
contractual period also apply for the period from December 1,
2009 through February 24, 2010.
Based on the foregoing, Plaintiffs have a right to the
release of goods received from December 1, 2009 to February 24,
2010.
received
Insofar
prior
as
to
the
parties
February
24,
agree
2010,
on
the
those
goods
goods
that
should
EVL
be
released, but the court will not order any goods released until
the exact items held by EVL that were received during this time
period can be ascertained.
A telephone conference will be held
with the parties to determine whether they can agree on the
exact goods to be released.
c.
Post-Termination Period (Post-February 24, 2010)
Plaintiffs argue that for the time period following the
termination of Defendant’s services, EVL was not authorized to
accept shipment of goods and had no right to condition release
of the goods on payment of outstanding invoices by Plaintiffs.
(ECF No. 30-1, at 19).
28
Captain
Katirtzidis
declared
that
“[a]fter
terminating
EVL’s services as freight forwarder, [Plaintiffs] took steps to
ensure that goods would no longer be shipped to EVL.
Those
steps included notifying the U.S. agency that oversees the FMS
program
and
various
commercial
vendors.
But
steps, some goods continue to be shipped to EVL.”
¶ 18) (emphasis added).
despite
those
(ECF No. 30-4
Captain Katirtzidis also states that
after February 12, 2010, “EVL no longer had any authority to
accept
goods
on
behalf
of
the
Hellenic
Armed
Forces,”
but
nevertheless continued to receive the goods and refused to turn
them
over
to
Plaintiffs
outstanding invoices.
different story.
unless
it
first
was
(ECF No. 30-4 ¶ 19).
paid
on
all
Defendant tells a
Mr. Georgakopoulos, EVL’s President, states
that on February 24, 2010, by hand delivery and by email, he
received
the
letter
relationship.
termination,
from
Plaintiffs
(ECF No. 35-2 ¶ 13).
EVL
still
continued
terminating
their
He states that after the
“to
receive
shipments
of
military goods, freight collect, meaning we paid on the delivery
on
behalf
of
the
Hellenic
Armed
Forces.”
(Id.).
Georgakopoulos further avers:
At no time did Eagle Van Lines prepare or
cause to be prepared any of the bills of
lading
forwarding
those
items
to
our
warehouse.
To the best of my knowledge,
information and belief the Greek government
did not act to alter the name of Eagle Van
Lines as its freight forwarder until such
29
Mr.
time on or after March 15, 2010.
The
shipments to Eagle Van Lines continued until
approximately May 10, 2010 again, without
our solicitation or involvement, in causing
the items to be forwarded to our warehouse.
The freight collect charges were paid, the
items were stored, Hellenic Armed Forces was
notified.
Eagle Van Lines has paid out in
freight collect charges $19,064.40 for goods
shipped to us after February 24, 2010.
(Id.)
(emphasis
added).
Stephanie
Bo,
an
international
coordinator for Eagle Van Lines, also declares:
Eagle
Van
Lines
remained
on
the
government[’s] Military Assistance Programs
Address Directory (MAPAC) for some period of
time up to March 15, 2010, if not later,
which resulted in the shipment to Eagle Van
Lines of items for the Greek government.
Many of those items were shipped Code 4,
meaning the freight charges had to be paid
on delivery.
Under Title 49[,] our ability
to serve our customer base, not necessarily
simply
the
Greek
government,
would
be
jeopardized and could be suspended if we
rejected and did not pay a freight collect
delivery.
(ECF No. 35-3 ¶ 10).
Thus, there is a genuine dispute regarding
whether EVL could have or should have rejected the goods it
received after February 24, 2010 and whether EVL’s continued
acceptance
of
the
goods
after
the
termination
of
its
relationship with Plaintiffs is attributable to Plaintiffs’ own
failure to ensure that the goods would be forwarded elsewhere.
Plaintiffs contend that “even if one assumes that EVL had a
valid
excuse
for
continuing
to
accept
delivery
of
goods
addressed to [Plaintiffs] after its services were terminated,
30
and even if it has a claim against [Plaintiffs] for freightcollect payments with respect to those deliveries, it would not
follow that EVL was entitled to retain the goods in the face of
[Plaintiffs’]
Maritime.”
instructions
that
they
(ECF No. 30-1, at 20).
be
forwarded
to
Stellar
Plaintiffs cite T.R. Ltd. v.
Lee, 55 Md.App. 629 (1983), in support of their argument that
even if HAF was indebted to EVL for unpaid invoices, Defendant
had to release the goods once Plaintiffs demanded that they be
forwarded to Stellar Maritime.
In Lee, a stolen tractor-trailer
ran off a ramp connecting two interstate highways.
A Maryland
State
as
police
officer
directed
T.R.
Ltd.,
trading
Raley’s
Emergency Road Services, to unload, right, tow and store the
vehicle.
Agent of the owner and lessor of the tractor-trailer
made a demand for its return, but Raley’s refused such demand
until all assessed towing and storage charges were paid.
The
Court of Special Appeals of Maryland held that “[i]n the absence
of some common law or statutory lien authorizing it to retain
possession of the property until its charges were paid, [the
towing company] was obliged to restore the property to its owner
when demand was made for its return on November 25, 1980, and
there was no right to charge for storage of the property beyond
that date.”12
Id. at 634.
12
The court noted in Lee, 55 Md.App. at 634, that a common
law possessory lien has been “defined as the right in one man to
31
Plaintiffs argue that EVL could not retain possession of
the goods absent a valid lien.
EVL counters that it had a
warehouseman’s and carrier’s lien, which entitled it to hold the
goods until Plaintiffs satisfied their unpaid invoices.
No. 35-1, at 13-24).
(ECF
Plaintiffs dispute the applicability of
both types of liens.
i. Warehouseman’s Lien
In Maryland, a warehouseman’s statutory lien is conferred
by Md. Code Ann., Com. Law § 7-209.
Section 7-209(a) states, in
relevant part:
A warehouse has a lien against the bailor on
the goods covered by a warehouse receipt or
storage agreement or on the proceeds thereof
in its possession for charges for storage or
transportation,
including
demurrage
and
terminal charges, insurance, labor, or other
charges, present or future, in relation to
the goods, and for expenses necessary for
preservation of the goods or reasonably
incurred in their sale pursuant to law.
(emphasis added).
Plaintiffs assert that the goods at issue are
not covered by either a warehouseman’s receipt or a storage
retain that which is in his possession belonging to another till
certain demands of him the person in possession are satisfied.”
(citing Brown, The Law of Personal Property, § 107 (2d ed. 1955)
(internal quotations omitted). “The basis of such a [common law
possessory] lien is an agreement, express or implied, between
the parties.” Id. Here, EVL does not contend that a common law
possessory lien entitled it to retain the goods after Plaintiffs
terminated its services.
32
agreement,
“and
therefore
the
warehouseman’s lien is missing.”
essential
predicate
of
a
(ECF No. 30-1, at 21).13
It is undisputed that after February 24, 2010 – when EVL
received Plaintiffs’ February 12, 2010 letter terminating its
services – the parties’ relationship was not governed by any
contract or agreement.
Thus, EVL’s contention that it could
retain the goods received after February 24, 2010 pursuant to a
warehouseman’s lien turns on whether the goods are covered by a
“warehouse receipt.”14
The version of Md. Code Ann., Com. Law §
1-201 that was in effect until May 31, 2012 defined a warehouse
receipt as “a document of title issued by a person engaged in
the business of storing goods for hire.”
See id. § 1-201(45).
The version of Section 1-201 that became effective on June 1,
2012 defines a “warehouse receipt” as “a receipt issued by a
person engaged in the business of storing goods for hire.”
Code Ann., Com. Law § 1-201(42).
Md.
Section 7-202 states that “[a]
13
Plaintiffs also state that “EVL has no lien with respect
to the goods it received after its services were terminated[]
because it had no authority to accept the goods in the first
place.” (ECF No. 30-1, at 21). As explained above, there is a
genuine
dispute
of
material
fact
regarding
whether
EVL
wrongfully
accepted
the
goods
after
its
services
were
terminated.
14
In its opposition to Plaintiffs’ motion for partial
summary judgment, Defendant states that “the question is not
whether there is a ‘warehouse receipt [] but rather whether EVL
had the right to assert a lien under [Section] 7-209.” (ECF No.
35-1, at 14). Under Section 7-209, however, “[a] warehouse has
a lien against the bailor on the goods covered by a warehouse
receipt or storage agreement.” Md.Com.Law Code Ann. § 7-209(a).
33
warehouse receipt need not be in any particular form.”15
Code Ann., Com. Law § 7-202(a) (emphasis added).
Md.
Section 7-
202(b) states that “[u]nless a warehouse receipt embodies within
its written or printed terms each of the following [items], the
warehouseman is liable for damages caused by the omission to a
person injured thereby.”
Md. Code Ann., Com. Law § 7-202(b).
The items include, inter alia, a description of the goods or of
the
packages
containing
them,
the
date
of
the
issue
of
the
receipt, and the location of the warehouse where the goods are
stored.
Failure to include all of the terms only subjects the
warehouseman to potential liability for damages caused by the
omission of such terms to a person injured thereby; Section 7202(2) does not prescribe the information that must be included
in a warehouse receipt in order for a document to qualify as
such.
See, e.g., Md. Code Ann., Com. Law § 7-202 cmt. 1 (“The
only consequence of a warehouse receipt not containing any term
15
Plaintiffs cite Hawkland U.C.C. § 7-202:1, which states
that “for a warehouse receipt to qualify as a document of title,
however, the receipt must meet the criteria of a document of
title.”
Plaintiffs then cite Hawkland U.C.C. § 7-101:2, which
states that “the goods covered by a document of title must be
sufficiently identified or described. . . .
Records which do
not identify the goods, such as baggage check receipts and
clothing check tokens, do not qualify as documents of title.”
Plaintiffs argue that the documents that EVL identifies as
warehouse receipts do not qualify as such because none of them
include a description of the goods that are covered by the
receipt.
(ECF No. 30-1, at 23).
The applicable language from
the Maryland statute controls, however, and any interpretation
of U.C.C. provisions governing a warehouseman’s lien – such as
Hawkland U.C.C. - is not binding authority on this court.
34
listed in subsection (b) is that a person injured by a term’s
omission has a right as against the warehouse for harm caused by
the omission.”).
It is far from certain whether the document reproduced in
Defendant’s opposition brief purporting to be a warehouseman’s
receipt actually qualifies as such.
(See ECF No. 35-1, at 15).
The
not
readily
not
appear
date
of
such
reproduction,
and
receipt
it
is
does
apparent
to
from
provide
identification of the goods to which it pertains.
the
any
Moreover,
Plaintiffs provide documents which their attorney declares Mr.
Georgakopoulos identified “as being a representative sample of
EVL’s warehouse receipt.”
(ECF No. 30-19 ¶ 6 & ECF No. 30-24).
According to Plaintiffs, Exhibits D5 and E616 to their motion for
partial
summary
judgment
represent
documents
which
Defendant
contends qualify as warehouse receipts; the purported receipts,
however, for the most part, are dated September 2008, which
predates Contract No. 100/09.
referenced
anything
on
the
Defendant has not specifically
record
that
represent
warehouse
receipts issued after February 24, 2010 for the goods received
following the termination of the parties’ dealings, and it is
EVL’s responsibility to do so.
See, e.g., Johnson v. United
States, 861 F.Supp.2d 629, 634-35 (D.Md. 2012) (noting that it
16
Exhibit E6 is not available on CM/ECF as it exists in
hard copy only, which Plaintiffs have supplied.
35
is the obligation of the parties, not the Court, to locate and
cite to the appropriate portions of the record that support the
parties’ arguments on summary judgment).
Defendant asserts, however, that “attached to each receipt
[] are [r]equisition and [i]nvoice/[s]hipping [d]ocuments,” and
“the OMB form which supplies specific details and codes for the
FMS.”
(ECF No. 35-1, at 15-16).
Defendant does not supply
legible copies of these documents, however, but contends that
“such
documentation
warehouse receipt.”
is
more
than
(Id. at 16).
adequate
to
constitute
a
Plaintiffs dispute that the
requisition and invoice/shipping documents or the OMB form were
issued
by
EVL
or
that
such
documents
qualify
as
warehouse
receipts.
The only evidence on the record which suggests – albeit
obliquely - that EVL issued warehouse receipts is deposition
testimony from Mr. Georgakopoulos:
Q: Did Eagle Van Lines provide the Hellenic
government, including the armed forces, a
warehouse receipt, for the goods at any
time?
A: Warehouse receipt, yes.
Q: Yes.
receipt?
And in what form was the warehouse
A: It was handwritten.
. . .
A: Usually the warehouse receipt [also] was
attached to the item. . . . Usually[,] a
36
copy of the warehouse receipt was attached
to the box, to every item that was shipped.
. . .
Q: What information did this
receipt [] contain? What’s on it?
warehouse
A: Usually – not always tracking number,
usually from which tracking company came
from, the number of pieces, the date that
the item came in.
It doesn’t always
necessarily have a tracking number because
tracking number is too long. Now of course
we have made a lot of modifications, it has
all this information and everything’s bar
coded and our customer always ha[s] access
to it through our system.
. . .
Q: And to your understanding, was there a
warehouse[] receipt for each item you have
in the warehouse?
A: The majority of the time, yes.
Q: Were those receipts provided to the
Hellenic government, those same receipts?
A: Attached to the documents?
Q: Yes.
A: I think so.
Q: When would they have been given to the
Hellenic government?
A: They were sending them with invoices.
(ECF No. 30-26, at 12-13) (emphases added).
Plaintiffs dispute
that EVL ever sent warehouse receipts to them for the goods it
is holding, however, including goods received after February 24,
37
2010.
Plaintiffs supply a declaration from Andreas Nikomanis,
Captain in the Hellenic Armed Forces, stating that “EVL has
never submitted to HAF any documents purporting to be warehouse
receipts or bills of lading with respect to the goods belonging
to HAF that are in EVL’s possession.”
Captain
Nikomanis
further
avers
that
(ECF No. 37-3 ¶ 4).
“[w]ith
respect
to
the
goods belonging to HAF that are in EVL’s possession, EVL has
never submitted to HAF any documents of the type reproduced on
pages 15, 16,[17] and 23 of EVL’s [opposition] memorandum.”
¶ 5).
(Id.
Although Defendant ultimately will need to come forward
with much more proof to show that a warehouseman’s lien attached
to the goods in storage that EVL received after February 24,
2010, drawing all inferences in favor of EVL, there is a genuine
dispute
of
material
fact
regarding
whether
such
goods
are
covered by a warehouse receipt.
Plaintiffs argue in their reply memorandum that “[a]ssuming
EVL has a lien, as to any given item the lien extends only to
charges associated with that item; it does not also secure the
payment of charges associated with different items.”
37, at 13).
(ECF No.
Md. Code Ann., Com. Law § 7-209(a) states, in
relevant part:
17
The documents reproduced on pages 15 and 16 are those
referenced above that Defendant asserts support that it issued
warehouse receipts.
38
If the person on whose account the goods are
held is liable for similar charges or
expenses in relation to other goods whenever
deposited and it is stated in the warehouse
receipt or storage agreement that a lien is
claimed for charges and expenses in relation
to other goods, the warehouse also has a
lien against the goods covered by the
warehouse receipt or storage agreement or on
the proceeds thereof in its possession for
those charges and expenses, whether or not
the other goods have been delivered by the
warehouse.
(emphases
added).
distinction
between
The
a
comments
specific
to
and
the
statute
general
explain
the
under
the
lien
statute:
[A] specific lien attaches automatically
without express notation on the receipt or
storage agreement with regard to goods
stored under the receipt or the storage
agreement.
That lien is limited to the
usual charges arising out of a storage
transaction.
. . .
[B]y notation on the receipt or storage
agreement, the lien can be made a general
lien extending to like charges in relation
to other goods.
Id. cmt. 1 (emphases added).
Plaintiffs believe that EVL must
be asserting a general lien “since it is withholding goods to
secure the payment of charges associated with goods that it had
previously delivered to HAF.”
(ECF No. 37, at 13).
A specific lien entitles the warehouseman to fees relating
specifically
to
goods
remaining
39
in
the
warehouse
for
which
warehouse receipts had been issued.
A general lien attaches to
any
possession,
goods
in
the
warehouseman’s
regardless
of
whether the charges asserted relate to those goods, but whether
a general lien exists depends on the language in the warehouse
receipt.
See,
e.g.,
In
re
Julien
Co.,
141
B.R.
359,
368
(Bkrtcy.W.D.Tenn. 1992) (“Clearly, the terms of UCC § 7-209(1),
when
ascribed
warehousemen
their
may
in
ordinary
fact
natural
assert
a
meanings,
lien
on
dictate
goods
in
that
their
possession for like charges or expenses in relation to other
goods received from the same depositor if a warehouse receipt
was issued and if [] it is stated in the receipt that a lien is
claimed for charges and expenses in relation to other goods
whether or not the other goods have been delivered elsewhere.”
(internal quotation marks omitted)).
The
parties’
memoranda
leave
much
to
be
desired
with
respect to the impact of a specific or general lien and whether
EVL can condition release of goods received after February 24,
2010
on
Plaintiffs’
satisfaction
of
invoices
issued
in
connection with pre-February 24, 2010 goods on which there was
no lien.
At this juncture, it cannot be said as a matter of law
that Defendant does not have a warehouseman’s lien on goods
received after February 24, 2010.
40
ii. Carrier’s Lien
Defendant
also
asserts
that
a
carrier’s
lien,
Md.
Code
Ann., Com. Law § 7-307, entitles it to retain the goods it
received after February 24, 2010.
their
reply,
Plaintiffs
(ECF No. 35-1, at 22).
preliminarily
argue
that
EVL
In
only
proposed its carrier’s lien theory for the first time at the
summary judgment stage and that this theory should be rejected.
There is no indication that EVL discovered for the first time at
the summary judgment stage that a basis existed to assert a
carrier’s lien defense, but, nevertheless, Plaintiffs have had
an opportunity to respond to the merits of this theory in their
reply.
Md. Code Ann., Com. Law § 7-307 covers carrier’s lien:
(a) A carrier has a lien on the goods
covered by a bill of lading or on the
proceeds thereof in its possession for
charges after the date of the carrier’s
receipt
of
the
goods
for
storage
or
transportation,
including
demurrage
and
terminal charges, and for expenses necessary
for preservation of the goods incident to
their transportation or reasonably incurred
in their sale pursuant to law.
. . .
(c) A carrier loses its lien on any goods
that
it
voluntarily
delivers
or
unjustifiably refuses to deliver.
(emphasis
added).
A
“bill
of
lading”
means
“a
document
evidencing the receipt of goods for shipment issued by a person
41
engaged in the business of transporting or forwarding goods.”
Md.Com.Law Code Ann. § 1-201(b)(6).
The comments to Section 7-
307 explain:
1. The section is intended to give carriers
a specific statutory lien for charges and
expenses similar to that given to warehouses
by the first sentence of Section 7-209(a)
and extends that lien to the proceeds of the
goods as long as the carrier has possession
of the proceeds.
But because carriers do
not commonly claim a lien for charges in
relation to other goods or lend money on the
security of goods in their hands, provisions
for a general lien or a security interest
similar to those in Section 7-209(a) and (b)
are omitted.
3. The carrier’s specific lien under this
section is a possessory lien. . . .
The
carrier’s lien arises when the carrier has
issued a bill of lading.
Md.Com.Law Code Ann. § 7-307, cmts. 1, 3 (emphases added).
Darby v. Baltimore & O.R. Co., 259 Md. 493, 498 (1970),
explained:
As we see it, [] two conditions must be met
if the carrier is to claim a [carrier’s]
lien under the U.C.C.
First, the lien
attaches only to ‘goods covered by a bill of
lading,’ § 7-307(1).
Second, the lien may
be lost on goods voluntarily delivered by
the carrier, § 7-307(3).
‘The validity of
the carrier’s specific lien is dependent on
continuous possession.
If the carrier
voluntarily gives up possession of the
goods, the lien is lost.’
Defendant argues that “[i]n this case[,] there were goods that
EVL
paid
for
transportation
and
42
in
some
cases
provided
the
transportation, pursuant to a bill of [lading].”
at 22).
it
In its opposition, Defendant reproduces a copy of what
purports
specific
(ECF No. 35-1,
to
be
evidence
carrier’s lien.
a
bill
that
of
lading,
establishes
(Id. at 23).
but
EVL’s
does
not
entitlement
produce
to
a
In cases where EVL paid for
transportation costs of another carrier, “it was the carrier
that issued the bill of lading and provided the transportation
that had a lien, and that carrier gave up the lien when it
delivered the goods.”
(ECF No. 37, at 12).
As for situations
where EVL “provided the transportation,” again, EVL does not
offer any specific information as to what goods it transported,
when, and whether it issued a bill of lading for such goods.
A
carrier’s lien is specific, thus EVL needed to have issued a
bill of lading for all the goods received after February 24,
2010.
Defendant has supplied no evidence that any bills of
lading were issued with respect to the items EVL is holding.
See, e.g., Lee, 55 Md.App. at 636 (“It appears, however, that
the tractor-trailer was not covered by a bill of lading, as is
required to establish a carrier’s lien.
Bills submitted to the
owner for towing and storage costs to date, cannot, we think, be
considered bills of lading; there is no evidence that the bills
dated at least six weeks after the vehicle was towed purported
to be an acknowledgement of receipt of the vehicle, a contract
43
of carriage, or a document of title.”).
Accordingly, Defendant
has not established a carrier’s lien.
d.
Damages
Finally, Plaintiffs contend that “EVL is also liable for
damages due to its wrongful detention of the property.”
No. 30-1, at 25).
(ECF
Plaintiffs state that they do not “seek in
this motion to have [their] damages quantified, but merely ask[]
for a finding that EVL is liable for damages in an amount to be
proved at trial.”
(Id. at 26).
As discussed above, however,
there are genuine disputes of material fact regarding whether
Defendant’s retention of goods received after February 24, 2010
is wrongful.
Moreover, insofar as Plaintiffs seek a ruling on
Defendant’s liability for damages, their motion is overly broad.
Plaintiffs do not specify on what cause of action EVL is liable
for damages.
explaining
They also do not spend any time in their papers
how
they
have
proven
Defendant’s
liability
for
damages on any particular cause of action.
2.
Defendant’s Counterclaims
With regard to EVL’s counterclaims, Plaintiffs contend that
the court should enter partial summary judgment in their favor
on:
(1)
EVL’s
claim
for
storage
fees;
(2)
EVL’s
claim
with
respect to those invoices received by HAF before January 23,
2010; and (3) on EVL’s claim for punitive damages.
1, at 26).
44
(ECF No. 30-
Both parties’ memoranda regarding EVL’s counterclaims are
problematic.
Again, the parties’ arguments are framed in terms
of the requested relief and not the causes of action pursuant to
which the respective relief is sought.
For instance, Plaintiffs
assert that they “have shown that EVL had no right to retain the
goods
and
any
cost
that
it
has
incurred
constitute a self-inflicted wound.”
(Id.).
in
storing
them
For the reasons
discussed above, there is a genuine dispute of material fact
regarding
whether
EVL’s
retention
after February 24, 2010.
of
the
goods
was
wrongful
Accordingly, Plaintiffs’ contention
that Defendant is not entitled to storage fees as a matter of
law is unavailing.
a.
Statute of Limitations
Plaintiffs
assert
that
“[w]ith
regard
to
most
of
its
invoices, EVL’s claim is barred by the statute of limitations.”
(ECF No. 30-1, at 26) (emphasis added).
Plaintiffs contend that
EVL filed counterclaims on July 16, 2013, and the statute of
limitations was tolled for 115 days by agreement of the parties.
(See
ECF
Nos.
30-20,
30-21,
30-22).
Plaintiffs
take
the
position that “EVL’s counterclaim is time-barred to the extent
it accrued more than three years and 115 days before the filing
of the counterclaim on July 16, 2013 – i.e., insofar as it
accrued before March 23, 2010.”
(Id.) (emphasis added).
45
The statute of limitations is an affirmative defense that
ordinarily must be pleaded and proven by the party asserting it.
See Newell v. Richards, 323 Md. 717, 725 (1991) (“As a general
rule, the party raising a statute of limitations defense has the
burden of proving that the cause of action accrued prior to the
statutory time limit for filing the suit.”).
The burden is on
Plaintiffs to show that the statute of limitations has run.
See, e.g., Clifton D. Mayhew, Inc. v. Blake Const. Co., Inc.,
482 F.2d 1260, 1262 (4th Cir. 1973) (“[T]he burden is upon the
party pleading the statute of limitations as a defense to show
by a preponderance of the evidence that the cause of action
arose
more
than
the
statutory
period
before
the
statute
of
action
was
instituted.”).
Presumably,
Plaintiffs
lodge
the
limitations
argument with respect to the breach of contract counterclaim.
In support of their breach of contract counterclaim, EVL asserts
that “[u]nder the terms of Contract No. 100/09[, Plaintiffs] had
a duty to pay the outstanding fees due to EVL on a monthly basis
but, in fact, often failed to make its payments in a timely
manner under the contract and currently has obligation due to
EVL in the amount of $2.18 million and without justification is
refusing to make payment of the invoices.”
Plaintiffs
believe
that
the
statute
(ECF No. 8 ¶ 23).
of
limitations
bars
EVL’s claims with respect to any invoices that were received by
46
the
appropriate
branch
of
the
Hellenic
Armed
Forces
before
January 22, 2010, which would have made payment due within sixty
days – March 23, 2010.
be
measured
analogizing
as
to
to
the
Plaintiffs argue that timeliness should
each
rule
invoice
that
that
when
a
Defendant
debt
is
sues
payable
on,
in
installments, the statute of limitations runs separately on each
installment that is not paid when it comes due.
Plaintiffs
believe that any payments made by them during the limitations
period pertaining to a specific invoice did not toll the running
of the statute as to other unpaid invoices.
“A civil action at law shall be filed within three years
from the date it accrues unless another provision of the Code
provides a different period of time within which an action shall
be commenced.”
Md. Code Ann., Cts. & Jud. Proc. § 5-101.
In
contract cases, the statute of limitations generally “begins to
run from the date of the breach, for it is then that the cause
of action accrues and becomes enforc[ea]ble.”
Mayor and Council
of Federalsburg v. Allied Contractors, Inc., 275 Md. 151, 157
(1975).
Plaintiffs cite Avery v. Weitz, 44 Md.App. 152, 154-155
(1979),
for
the
proposition
that
with
a
contract
requiring
payment in installments, the statute of limitations begins to
run on each payment when that particular installment is due.
Avery involved a promissory note requiring monthly payments in
installments.
47
Plaintiffs
incorrectly
argue
that
the
situation
akin to a note payable in installments.
installments
involves
an
overall
here
is
A note payable in
contract
requiring
fixed
incremental payments to fulfill a total obligation due under the
note.
Here,
however,
there
was
no
overall
contract
that
required Plaintiffs to pay a fixed sum to fulfill an overall
obligation
due
under
the
contract.
Instead,
the
amount
Plaintiffs had to pay on each invoice depended on the items
received.
Plaintiffs contend that “[e]ach invoice represented a
separate demand for payment that was independent of the other
invoices, and any time an invoice was not paid by the time
payment came due, a claim accrued for that amount.”
30-1, at 27).
(ECF No.
Defendant maintains, however, that Plaintiffs
were chronically late in paying the invoices, and did not abide
by the payment obligations set forth in Contract No. 100/09.
Mr. Georgakopoulos stated in his affidavit that “[f]rom prior to
Contract 100/09 and continuing through May of 2010[,] Eagle Van
Lines would often have to wait for unexplained long delays in
the processing of its invoices and on several occasions included
[]
actual
travel
to
Greece
in
an
effort
to
processed and paid that had been long overdue.”
9).
have
invoices
(ECF No. 35-2 ¶
Ngai Siu, the accounting manager for Eagle Van Lines, also
testified during her deposition that the Greek government would
pay only parts of invoices in some cases.
48
(See ECF No. 35-13,
at 9).
Hellenic
Moreover, the declaration from Captain Nikomanis in the
Air
outstanding
Force
invoices
indicates
for
a
that
time
Plaintiffs
period
long
termination of their dealings on February 24, 2010.
fulfilled
after
the
He states:
“[d]espite EVL’s refusal to turn over to HAF the goods belonging
to HAF that were in its possession, HAF continued for several
months to make payments to EVL on its outstanding invoices.”
(ECF No. 30-17 ¶ 5).
His affidavit suggests that Plaintiffs
continued to make payments until September 2010, for invoices
that became due much earlier.
(Id. ¶ 6).
Thus, the obligation to pay within two (2) months may have
been
altered
by
the
parties’
course
of
conduct,
making
it
unclear when the obligation to pay by Plaintiffs became due (and
consequently, when any cause of action for breach of contract
accrued on each invoice).
Although applying Virginia law to the
issue of the statute of limitations on a contract claim, the
analysis in Clifton D. Mayhew, Inc. v. Blake Const. Co., Inc.,
482 F.2d 1260, 1262-63 (4th Cir. 1973), is helpful:
In Virginia, [much like in Maryland], the
statute of limitations on a contract begins
to run from the time payment is due.
Of
necessity, the due date depends upon the
terms, either expressed or implied, of the
contract in issue. . . .
The course of
dealings between the parties may show their
intent.
49
(emphasis added); see also Government of United Kingdom of Great
Britain
and
F.Supp.2d
Northern
521,
524
Ireland
(D.Md.
v.
1998)
Northstar
(“A
Services,
general
Inc.,
principle
1
of
contract law allows for the parties’ course of dealing to ‘give
meaning
to’
the
terms
of
a
(Second) of Contracts § 223).
contract.”)
(quoting
Restatement
Here, each invoice constituted a
separate bill for payment, but it is unclear when each bill
became due considering the parties’ course of dealings.
Thus,
Plaintiffs have not established that any of Defendant’s claims
for payment of invoices are time barred.18
18
Defendant cites several dates in its opposition brief,
but does not offer any explanation as to the import of these
dates on the statute of limitations analysis. (See ECF No. 351, at 27-28).
Defendant further argues that “limitation was tolled by
judicial exception.” (ECF No. 35-1, at 28). EVL suggests that
in some cases, the statute of limitations can be tolled by the
filing of a claim in the wrong forum. (Id. at 28-30). Although
neither party has provided the full procedural posture of this
case prior to its inception in this court, Defendant maintains
that “[t]he case in Greece was instituted in June 2010 and did
not conclude until June 2011.” (Id. at 30). Defendant cites to
an excerpt from Mr. Georgakopoulos’s deposition, in which he
states that a witness testified in the case in Greece in 2010
that the invoices were not paid by Plaintiffs.
(ECF No. 35-1,
at 29-30). Defendant does not argue, however, that EVL asserted
its counterclaims in the Greek lawsuit. Plaintiffs confirm that
EVL did not assert its own claims against Plaintiffs in the case
filed in Greece.
(ECF No. 37-7 ¶ 5).
Accordingly, the
proceeding in Greece initiated by Plaintiffs does not toll the
statute of limitations on claims asserted by EVL against
Plaintiffs in the instant matter.
The burden to prove statute of limitations, an affirmative
defense, is on Plaintiffs, however.
50
b.
Punitive Damages
In their motion for partial summary judgment, Plaintiffs
argue that Defendant’s claim for punitive damages is barred as a
matter of law.
First, Plaintiffs contend that they are immune
from liability for punitive damages under the Foreign Sovereign
Immunity Act (“FSIA”).
(ECF No. 30-1, at 28).
They cite to 28
U.S.C. § 1606, which states that “a foreign state except for an
agency
or
punitive
instrumentality
damages.”
thereof
Plaintiffs
shall
state
not
that
a
be
liable
foreign
for
state’s
armed forces constitute political subdivisions of the foreign
state,
not
agencies
Alternatively,
or
instrumentalities.
Plaintiffs
argue
that
EVL
(Id.
may
not
at
29).
recover
punitive damages for the types of counterclaims asserted, namely
breach of contract.
(Id. (“In the absence of an underlying tort
claim, EVL cannot possibly recover punitive damages.”)).
response,
EVL
argues
that
FSIA
is
inapplicable
because
In
the
statute only applies where the district court’s jurisdiction is
premised on the FSIA and not where, as here, subject matter
jurisdiction is based on diversity.
(ECF No. 35-1, at 30).
Although
rule
acknowledging
the
general
in
Maryland
that
punitive damages may not be recoverable for breach of contract
actions, Defendant maintains that it may seek punitive damages
here under the principle that such damages are available for
51
torts arising out of a contractual relationship.
(Id. at 31-
32).
Because punitive damages are not recoverable for breach of
contract claims, the court need not determine the applicability
of FSIA.
See, e.g., Wiggins v. North American Equitable Life
Assur. Co., 644 F.2d 1014, 1017 (4th Cir. 1981) (recognizing that
punitive
damages
may
contract suits).
never
be
recovered
in
pure
breach
of
“Punitive damages, while not recoverable in a
pure breach of contract action, may be recovered for a tort
committed in connection with a breach of contract. []
Where
recovery of punitive damages is based on a tort arising out of a
contractual
relationship,
actual malice.”
Inc.,
609
however,
the
plaintiff
must
prove
Nunes v. Merrill Lunch, Pierce, Fenner & Smith,
F.Supp.
1055,
1061
(D.Md.
1985).
Nowhere
in
the
counterclaims does EVL assert a tort claim in connection with a
breach
of
contract
against
Plaintiffs,
however.
acknowledges as much:
EVL[] agrees that it may be necessary to
amend its Counter Complaint and that it has
the burden of establishing [] actual malice.
. . . At this stage of the proceedings there
exist facts, which taken in the light most
favorable
to
the
Defendant
and
Counterplaintiff
that
there
was
an
intentional
interference
with
his
contractual
rights
when
he
refused
to
participate[] in the solicitations by Greek
officials to pay them money, which would
amount to bribery.
52
Defendant
(ECF No. 35-1, at 32) (emphasis added).
As an initial matter,
under the circumstances, Defendant may not amend the complaint
to add a claim for tortious interference with contract at this
stage of the proceedings, when the deadlines for amendment of
pleadings has long passed and the case is ready to proceed to
trial.
Moreover, it does not appear that a claim for tortious
interference
with
contract
can
be
made
against
Plaintiffs
considering that they are parties to Contract No. 100/09.
See,
e.g., Dunnaville v. McCormick & Co., Inc., 21 F.Supp.2d 527, 536
(D.Md. 1998) (“Maryland courts have never permitted recovery for
the tort of intentional interference with a contract when both
the defendant and the plaintiff were parties to the contract.”
(quoting Bleich v. Florence Crittenton Servs., 98 Md.App. 123
(1993));
(1994)
Macklin
(noting
relationship
“is
v.
that
Robert
Logan
tortious
committed
Assocs.,
interference
when
a
third
334
Md.
with
party’s
an
287,
297
economic
intentional
interference with another in his or her business or occupation
induces a breach of an existing contract or, absent an existing
contract, maliciously or wrongfully infringes upon an economic
relationship.”).
Accordingly,
Defendant
may
not
recover
punitive damages from Plaintiffs.
B.
Defendant’s Cross Motion for Partial Summary Judgment
Defendant also moves for partial summary judgment, although
the basis for the motion is unclear.
53
(See ECF No. 35-1, at 32-
33).
First, Defendant seemingly wants the court to rule that
Contract No. 47/10 cannot be a binding contract as a matter of
law.
Defendant states that “[w]hile the ruling on this issue is
negligible
to
the
ultimate
findings,
[]
it
nevertheless
is
important in that [Plaintiffs] claim [their] contractual terms
eliminate its exposure to the storage [charges] of EVL.”
(emphasis
added).
As
explained
above,
there
(Id.)
is
some
inconsistency on the record as to whether Contract No. 47/10
ever became a binding contract or whether the parties continued
to operate under the terms of Contract No. 100/09 from December
1, 2009 until February 24, 2010.
Second, Defendant argues that Plaintiffs are not entitled
to set off the amounts of previous alleged overpayments against
amounts that Plaintiffs owe on separate invoices.
The issue of
Plaintiffs’ liability as to breach of contract (and payment of
invoices) has not been finally resolved.
Indeed, Defendant did
not move for summary judgment on its breach of contract claim
against
juncture
setoff
Plaintiffs.
to
or
determine
reduction
Accordingly,
whether
in
it
is
Plaintiffs
damages
before
premature
are
at
entitled
determining
this
to
a
whether
Defendant is even entitled to damages and on what basis.
IV.
Conclusion
For the foregoing reasons, Plaintiffs’ motion for partial
summary judgment will be granted in part.
54
Defendant’s cross
motion for partial summary judgment will be denied.
A separate
order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
55
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