U.S. Licensing Associates, Inc. v. The Rob Nelson Corporation
Filing
41
OPINION AND ORDER: For the foregoing reasons, USLA' s motion for partial summary judgment and RNC' s motion for summary judgment are both DENIED. The Clerk of the Court is instructed to close both motions and remove them from my docket. re: 20 MOTION for Summary Judgment of No Breach of Contract or, In the Alternative, No Damages By The Rob Nelson Company. filed by The Rob Nelson Company, 26 CROSS MOTION for Summary Judgment. filed by U.S. Licensing Associates, Inc.. (Signed by Judge Harold Baer on 4/26/2012) (pl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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U.S. LICENSING ASSOCIATES, INC.,
:
:
Plaintiff,
:
:
- against :
:
THE ROB NELSON COMPANY,
:
:
Defendant.
:
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Hon. Harold Baer, Jr., District Judge:
11 CV 4517 (HB)
OPINION &
ORDER
Before the Court is a motion for summary judgment brought by defendant The Rob Nelson
Company (“RNC”) and a cross-motion for partial summary judgment brought by plaintiff U.S.
Licensing Associates, Inc. (“USLA”). For the reasons set forth below, both motions are DENIED.
I. BACKGROUND1
An additional description of the facts of this case is provided in this Court’s recent decision
granting in part and denying in part RNC’s motion to dismiss the amended complaint, familiarity
with which is assumed. USLA v. RNC, 11 Civ. 4517, 2011 WL 5910216 (S.D.N.Y. Nov. 28, 2011).
That opinion dismissed Plaintiff’s second and third causes of action, leaving a single cause of action
for breach of contract.
Pursuant to a license agreement (“1992 License Agreement”), RNC’s predecessor in
interest, the Jim Bouton Corporation (“JBC”) licensed the use of trademarks for a shredded gum
called Big League Chew to the predecessor in interest of non-party Wrigley WM Jr. Co.
(“Wrigley”), Amurol Products Company (“Amurol”) in exchange for a 5-year agreement, which
was subsequently renewed, under which Amurol would pay JBC 6.5 percent of the net sales of Big
League Chew, with a Guaranteed Minimum Royalty of $500,000.00 each year. RNC 56.1 ¶ 1;
ULSA 56.1 ¶ 2, 1992 License Agreement ¶¶ 5, 6. The Guaranteed Minimum Royalty was increased
to $530,000.00 in 2009. Feureisen Decl. ¶ 26. USLA acted as an agent for JBC and facilitated the
original license agreement between JBC and Amurol. Alati Decl. ¶¶ 3-4. As compensation for its
facilitation of this agreement, USLA also entered into a contract (“1992 Contract”) with JBC,
through which USLA was promised 1.5 percent of the sales of Big League Chew, Seymour Decl.
1
This section is provided for background purposes only and facts are disputed where noted. Additional facts are
provided where they are relevant throughout the opinion.
1
Ex. B, 1992 Contract ¶ 2b, or if the sales were below the Guaranteed Minimum Royalty, USLA
would be entitled to 23 percent of the difference between the Guaranteed Minimum Royalty and the
actual royalties earned. Id. at ¶ 4b. JBC later assigned all its rights, obligations and liabilities under
the 1992 Agreement and 1992 Contract to RNC and Amurol assigned its rights, obligations, and
liabilities under the 1992 License Agreement to Wrigley. RNC 56.1 ¶¶ 5, 6.
The second term of the 1992 License Agreement ended on December 31, 2001 and was
renewed on January 1, 2002. Id. at ¶ 7. Approximately two years before the 1992 License
Agreement was set to expire, Wrigley notified RNC that it wanted to terminate the agreement early
in exchange for payment of the 2011 Guaranteed Minimum Royalty. RNC 56.1 ¶¶ 11-12; USLA
56.1 ¶¶ 12-13. Instead, RNC waived its right to the 2011 Guaranteed Minimum Royalty, and
Wrigley agreed to sell the equipment it had used to manufacture Big League Chew Products
pursuant to the Termination Agreement to RNC. RNC 56.1 ¶¶ 15-16; USLA 56.1 ¶¶ 18-21. The
parties dispute whether or not this equipment was sold to RNC at a vastly reduced price. RNC 56.1
¶¶25-27, 32; USLA Response to RNC 56.1 ¶¶ 16, 25. Wrigley also agreed not to sell a competing
product, USLA 56.1 ¶ 21, and helped RNC with transitional matters including transferring
trademarks, websites, formulas, inventory and customer lists. Feureisen Decl. ¶ 15. The parties also
dispute whether this assistance and the non-compete had any value. USLA Opp. 17-24; RNC MSJ
12-16.
The 1992 Contract, 1992 License Agreement and the Termination Agreement explicitly
state that the agreements should be construed under the laws of the state of New York. Seymour
Decl. Ex. B, 1992 Contract ¶ 7; Seymour Decl. Ex. A, 1992 License Agreement ¶ 31; Seymour
Decl. Ex. D, Termination Agreement ¶ 10(c).
II. LEGAL STANDARD
Summary judgment shall be granted in favor of a movant where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A court must resolve all ambiguities and draw all inferences against the moving party.
LaSalle Bank Nat’l Ass’n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). The
movant bears the burden of establishing the absence of any genuine issue of material fact. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A material fact “might affect the outcome of the
suit under the governing law,” and an issue of fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Holtz v. Rockefeller & Co., 258
F.3d 62, 69 (2d Cir. 2001) (internal citation omitted). “The party against whom summary judgment
2
is sought . . . ‘must do more than simply show that there is some metaphysical doubt as to the
material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there
is a genuine issue for trial.’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
New York rules govern choice-of-law questions in diversity actions. Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 498 (1941). Under New York law, “a contractual choice-of-law
provision is generally binding on a party claiming rights under a contract.” CIH Int’l. Holdings,
LLC v. BT United States, LLC, No. 10 Civ. 7790, 2011 WL 4483983, at *4 (S.D.N.Y. Sept. 28,
2011) (citing Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549,
556 (2d Cir. 2000) (relying on New York Contract law to resolve issues raised in the case).
III. DISCUSSION
A. There is a Genuine Issue of Material Fact Regarding Whether RNC Breached the 1992
Contract with USLA
In the sole remaining Count, USLA alleges that RNC breached the 1992 Contract with
USLA by “waiving the 2011 Minimum Guaranteed Royalty,” Compl. ¶ 37, and “by failing to pay
plaintiff USLA the greater of 23% of the 2011 Minimum Guaranteed Royalty or 23% of the
valuable consideration that Wrigley gave RNC for defendant RNC’s promise to waive the 2011
Minimum Guaranteed Royalty.” Id. at ¶ 38. The parties cross move for summary judgment on the
issue of whether RNC breached the 1992 Contract.2
Paragraph 11 of the 1992 Contract reads:
11. Notwithstanding anything contained herein to the contrary, in the
event of any amendment, modification, extension, renewal and/or an
agreement between JBC and LICENSEE and/or their respective
successors and assigns, entered into in substitution of the License
Agreement between JBC and LICENSEE, and regardless of the prior
termination or expiration of the term of said License Agreement,
USLA shall nonetheless continue to be entitled to receive a
percentage of advances, royalties and Guaranteed Minimum Royalties
or other consideration received by JBC and/or its successors and
assigns from LICENSEE and/or its successors and assigns with
respect to each such amendment, modification, renewal and/or
substitution of said License Agreement as follows:
2
RNC is correct that to the extent USLA argues that the early termination of the License Agreement itself constituted a
breach of the 1992 Contract, that argument fails as a matter of law. RNC MSJ 6. Nothing in the 1992 Contract prohibits
early termination of the License Agreement; to the contrary, the 1992 Contract expressly contemplates early termination
of the 1992 License Agreement. Seymour Decl. Ex. B, 1992 Contract ¶ 11 (indicating that USLA will receive
consideration for agreements “entered into in substitution of the License Agreement” regardless of “the prior
termination or expiration of the term of said License Agreement”).
3
a. From January 1, 1992 to June 30, 1993 – 27%
b. From July 1, 1993 to expiration or termination of the
License Agreement as may be amended, modified, renewed
and/or substituted therefor – 23%
Seymour Decl. Ex. B, 1992 Contract ¶ 11.
Under New York law, whether a written contract is ambiguous calls for a legal
determination. Diesel Props S.R.L. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 51 (2d Cir. 2011).
“Ambiguous language is that which suggests ‘more than one meaning when viewed objectively by a
reasonably intelligent person who has examined the context of the entire integrated agreement and
who is cognizant of the customs, practices, usages and terminology as generally understood in the
particular trade or business.’ ” E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 174 (2d
Cir. 2001) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir.1997)). “[T]he
meaning of an ambiguous contract is a question of fact for a factfinder.” Scholastic, Inc. v. Harris,
259 F.3d 73, 82 (2d Cir. 2001) (citing Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 66 (2d
Cir.2000)).
The two readings urged by the parties are plausible. In my earlier opinion, I explained that it
was a plausible reading of the contract that the Termination Agreement fell into the category of an
agreement entered into “in substitution of” the License Agreement. USLA v. RNC, 2011 WL
5910216, at *3-*4. Both parties offer persuasive arguments in support of finding that the
Termination Agreement does or does not fall into the category of agreements for which USLA was
entitled to receive consideration. RNC argues that paragraph 11b, indicating that USLA was to
receive consideration “to . . . termination of the License Agreement” means that USLA would only
receive consideration until termination, but not for termination. RNC MSJ 7. USLA, on the other
hand, points to evidence suggesting that the consideration received for the Termination Agreement
falls within Paragraph 11. For example, that paragraph indicates that USLA will receive
consideration for agreements “in substitution” of the License Agreement “regardless of the prior
termination or expiration of the term of said License Agreement.” Seymour Decl. Ex. B, 1992
Contract ¶ 11. The conflicting language of Paragraph 11 renders the contract ambiguous, and the
4
issue of whether RNC has breached its obligations by failing to provide USLA with consideration
allegedly received cannot be resolved on summary judgment.3
RNC also argues that the words surrounding “substitution” suggest that the Termination
Agreement does not count as an agreement entered into “in substitution of” the License Agreement
because the other types of contracts in Paragraph 11—amendments, modifications, and renewals—
all require a continuing duty to perform. RNC MSJ 8. Under the doctrine of ejusdem generis, “the
meaning of a word in a series of words is determined ‘by the company it keeps.’ ” 242-44 E. 77th
St., LLC v. Greater N.Y. Mut. Ins. Co., 815 N.Y.S.2d 507, 507 (App. Div. 2006) (internal citation
omitted). This suggests that a termination agreement “would not belong within this list of
agreement types.” RNC MSJ 8. USLA responds that the Termination Agreement required an
ongoing duty to perform as well. USLA MSJ & Opp. 14 (explaining that the Termination
Agreement included ongoing duties, among others, including absolving Wrigley from the obligation
to sell Big League Chew, requiring Wrigley to sell the equipment and assist in the transition to a
new manufacturer, and prohibiting Wrigley from competing with Big League Chew).4
“When the language of a contract is ambiguous and there is relevant extrinsic evidence
regarding the actual intent of the parties, an issue of fact is presented for a jury to resolve, thereby
precluding summary judgment.” Harris, 259 F.3d at 83. It is a rare case where the extrinsic
evidence is so one-sided that a court should resolve the ambiguity as a matter of law. Id. Both sides
offer evidence of the intent of the parties in drafting the 1992 Contract. Compare Alati Decl. ¶ 10
(“It was always intended that pursuant to paragraph 11 of the 1992 Contract, USLA is entitled to its
share of any consideration which the Licensor receives from the Licensee pursuant to the License
Agreement or any other agreement which is made in substitution of the license agreement,
regardless of any prior termination of the License Agreement.”); RNC Reply 6 (arguing that the
course of dealings under the contract suggests that Paragraph 11 did not include termination
3
Even if, as RNC argues, USLA was only entitled to compensation “to . . . termination,” USLA is correct that
“a genuine issue of material fact would exist as to whether the License Agreement was terminated before or
after the valuable consideration was received by RNC.” USLA MSJ & Opp. 13-14.
4
RNC asserts that the doctrine of contra proferentem ought to apply to this contract, which according to RNC, was
drafted by USLA. First, although the doctrine of contra proferentem may, as RNC argues, apply beyond the adhesion
contract context, “the touchstone for applying contra proferentem is the [non-drafter’s] lack of sophistication.” U.S.
Fire Ins. Co. v. Gen. Reinsurance Corp., 949 F.2d 569, 573 (2d Cir. 1991). Neither party here lacked sophistication.
There is also a genuine issue of material fact regarding whether the contract was drafted by USLA. Compare Bouton
Decl. (“USLA drafted the 1992 Contract between USLA and JBC, and to my best recollection, it was signed by me
without any changes.”), with Franklin Decl. (“During the negotiations and drafting of the 1992 Contract, multiple drafts
were reviewed and edited by both Steven Pokotilow, Esq., on behalf of JBC, and by me, on behalf of USLA.”).
5
agreements). Because there is a genuine issue of material fact regarding whether RNC breached the
1992 Contract by failing to pay USLA a portion of the valuable consideration it received in
exchange for the Termination Agreement, RNC’s motion for summary judgment and USLA’s
cross-motion for summary judgment are both denied.5
B. Damages
1. USLA Was Given an Opportunity to Cure its Damages Defect
In its Supplemental Disclosures, USLA offered four possible pathways in order to provide a
calculation of damages, three of which are barred. Seymour Decl. Ex. K, Supp. Disclosures. The
first two categories of damages sought compensation for RNC’s waiver of the Guaranteed
Minimum Royalty for 2011. Id. at ¶¶ (C)1, (C)2. As explained above, to the extent that USLA
argues that terminating the 1992 License Agreement and waiving the Guaranteed Minimum Royalty
was itself a breach of the 1992 Contract, that argument fails. See supra n.2. The fourth damages
claim,6 which sought the “amounts that U.S. Licensing Associates, Inc. was underpaid pursuant to
the royalty agreement with The Rob Nelson Company,” is also barred. Id. at ¶ (C)4. I dismissed the
royalty claim in deciding RNC’s motion to dismiss, and although I provided leave to replead, USLA
never took advantage of that opportunity. See USLA, 2011 WL 5910216, at *4-*5.
The only viable damages theory raised by USLA is as follows:7
[T]hirty-five percent of the value of any and all consideration
received in connection with The Rob Nelson Company’s waiver of
the 2011 Guaranteed Minimum Royalty and the early Termination of
the Big League Chew License Agreement, including but not limited to
the value of the equipment transferred to the Rob Nelson Company
from WM. Wrigley Jr. Company and the value of the non-compete
clause between The Rob Nelson Company and WM. Wrigley Jr.
Company.
Seymour Decl. Ex. K, Supp. Disclosures ¶ (C)3. In its Supplemental Initial Disclosures, USLA
indicated that it did not have “sufficient information or documents” to calculate damages on this
theory.
5
RNC argues that the Alati Declaration cannot be used to create a genuine issue of material fact. See RNC Reply 4
(citing Fisher v. AW Miller Technical Sales, Inc., 762 N.Y.S.2d 205, 205 (App. Div. 2003) (“Moreover, even assuming,
arguendo, that the term ‘accepted’ as used in the contract is ambiguous, we conclude that plaintiff’s subjective
understanding is not competent parol evidence to explain its meaning.”)). However, Plaintiff does not create a genuine
issue of material fact with the Alati Declaration. Rather, I conclude that the contract is ambiguous on its face, and that
the Alati Declaration is one piece of extrinsic evidence that might be used by a jury to determine its meaning.
6
This is misnumbered as number 3.
7
This is misnumbered as number 2. As explained below, the correct percent that USLA is entitled to is 23 percent.
6
In its memorandum and reply, RNC argued that I ought to preclude damages testimony on
the third theory because Rule 26(a)(1)(A)(iii) requires a “computation of each category of damages”
along with supporting “documents or other evidentiary material” “on which each computation is
based.” RNC MSJ 9-15. USLA responded that it should not be precluded from proving damages
“merely because there is an issue of amount.” USLA MSJ & Opp. 22-23 (quoting Boyce v.
Soundview Tech. Grp., Inc., 464 F.3d 376-391-92 (2d Cir. 2006) (explaining that a breaching party
“should not be permitted entirely to escape liability because the amount of damages which he has
caused is uncertain”)).8 The rationale that “ ‘the burden of uncertainty [] is upon the wrongdoer’. . .
has no application here where there has not yet been a determination regarding liability.” Design
Strategy, Inc. v. Davis, 367 F. Supp. 2d 630, 635-36 (S.D.N.Y. 2005), aff’d 469 F.3d 284 (2d Cir.
2006) (quoting Schonfeld v. Hilliard, 218 F.3d 164, 174-75 (2d Cir. 2000)). USLA does not assert
that RNC improperly withheld any necessary information in the course of discovery, and “[a] party
is not excused from making its disclosures because it has not fully investigated the case.” Fed. R.
Civ. Proc. 26(e). That there is a disputed amount of damages, or that damages are generally a
question of fact for the jury, is not the issue. Rather, USLA had never identified even in ball park
figures what amount of damages it intended to seek, or on what evidence that amount would be
based.
Turning to what, if any, sanction to impose under Rule 37 (c)(1), courts consider: (1) the
party’s explanation for the failure to comply; (2) the importance of the precluded evidence; (3) the
prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony;
and (4) the possibility of a continuance. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
While a party may defend non-disclosure on the basis that it was substantially justified or harmless,
Fed. R. Civ. Proc. 37(c)(1), USLA has no such explanation for its failure to comply with Rule 26.
Furthermore, prejudice to RNC from receiving damages calculations just a few weeks before trial
and well after discovery has closed is high. On the other hand, the importance of the precluded
evidence to USLA is not only high, it is essential. A district court has wide discretion to impose
8
USLA relies on Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP, 03 Civ. 5560, 2006 WL 1520227
(S.D.N.Y. June 1, 2006), for the proposition that “an exact computation need not be disclosed where it will be
contingent on expert evidence at trial.” USLA Reply 10. That case is quite clearly distinguishable. The Court in
Financial Services did not hold that the plaintiff did not have to provide damage calculations, but concluded simply
that, where the damage calculations would be based on expert evidence, the calculations could be part of Rule 26 expert
disclosures rather than initial disclosures. Id. at *1 (“Where, as here, the plaintiff’s damages are not the product of a
simple mathematical calculation and require expert testimony, the damages calculations need not be produced with the
plaintiff’s Rule 26(a)(1) disclosures and may be produced as part of the party’s Rule 26(a)(2) disclosures.”).
7
sanctions, including severe sanctions, under Rule 37, and its ruling will be reversed only if it
constitutes an abuse of discretion. See Patterson, 440 F.3d at 117.
After a careful consideration of the Patterson factors, id., prohibiting USLA from any
testimony on the issue of damages would be unfair and unnecessary. It is within my discretion to
fashion another appropriate remedy in lieu of sanctions, and I offered USLA a final opportunity to
provide RNC with its damages computations and the basis for those damages that it intends to
present to a jury in a letter dated March 22, 2012. I gave USLA one week to provide this
information and stated that the calculations could not be based on any evidence not produced during
discovery unless USLA could demonstrate that the failure to produce the information earlier was
substantially justified or harmless. March 22, 2012 Letter; see Serin v. N. Leasing Sys., Inc., No. 06
Civ. 1625, 2010 WL 6501664, at *1 (S.D.N.Y. Oct. 26, 2010) (ordering the plaintiffs to comply
with Rule 26(a)(1)(A)(iii) and to make full disclosures of damages within 3 days where the
plaintiffs had timely provided expert evidence and other documents on which the damage
calculation would be based, but failed to provide the final calculation). USLA has since provided
such calculations and RNC has not objected to them. Based on USLA’s representations at oral
argument on April 2, 2012 and in their reply to my March 22 letter, that there would be additional
support for this theory of damages in tax documents that would be filed by RNC on June 15, 2012, I
have also adjourned the trial, previously scheduled for May 14, 2012 to the August trailing trial
calendar. This will also alleviate any prejudice to RNC.
2. USLA is Only Entitled to 23 Percent of Consideration Received by RNC
USLA’s assertion that it is entitled to “35 percent of the value of any and all consideration
received” is incorrect. This assertion is based on Paragraph 17 of the 1992 Contract, which reads as
follows:
In the event that the License Agreement is amended, modified,
renewed and/or substituted therefor as provided in ¶ 11 hereof and the
provisions of such License Agreement are so amended, modified
renewed and/or substituted so that the royalty due from LICENSEE to
JBC, or from and to their respective successors and assigns, is less
than six and a half (6.5%) percent of LICENSEE’s net sales, then and
in such event, USLA shall be entitled to thirty five (35%) percent of
any royalties and other consideration of every nature and kind paid by
LICENSEE, its successors and assigns, to JBC, its successors and
assigns, pursuant to such new agreement between JBC and
LICENSEE.
8
A plain reading of Paragraph 17 makes it clear that the language provides 35 percent of “any
royalties and other consideration” is applicable to the situation where RNC and Wrigley entered
into a new license agreement pursuant to which RNC was only to collect 6.5 percent of Wrigley’s
net sales. Paragraph 17 does not apply to the Termination Agreement at issue here. Although RNC
does not directly address this discrepancy, in its memorandum in support of summary judgment it
characterizes USLA’s third theory of damages as a “fail[ure] to provide USLA with 23% of the
consideration it was provided by Wrigley to enter into the Termination Agreement.” If the jury
concludes that the Termination Agreement is one for which USLA ought to receive any
consideration under Paragraph 11 of the 1992 Contract, the most USLA can receive is 23 percent of
that consideration.
3. There is a Genuine Issue of Material Fact Regarding the Amount of Potential
Damages Sustained by USLA
Viewing the facts in a light most favorable to USLA, there is a genuine issue of material fact
regarding whether USLA sustained damages. USLA argues that RNC received consideration for
the Termination Agreement that it has not shared with USLA, in violation of Paragraph 11 of the
1992 Contract. USLA 56.1 ¶ 24. Among other disputed items, USLA suggests that the BLC
equipment, purchased for $169,999.98, was worth far more than the purchase price. See Feureisen
Decl. Ex. E, Email from Rob Nelson to Melanie Domer 10/29/2009 (“The value of the equipment is
approximately $350K.”); Feureisen Decl. Ex. K, Email from Rob Nelson to Bob Anderson
7/12/2010 (suggesting valuation of the equipment at $375,000.00 to obtain better financing);
Feureisen Decl. Ex. U, AmerEquip International Appraisal (valuing equipment at $666,666.00).
USLA also asserts that the non-compete has a value of $530,000 because the Termination
Agreement stated that the royalty was adequate consideration for the non-compete. 3/29/2012
USLA Letter to Court. In addition, USLA indicates that the sizzle reel, market material provided to
RNC by Wrigley cost $7,500.00. Id. As noted above, USLA predicts that RNC’s June tax filings
will likely provide additional support for this theory of damages. For each of these items, USLA
asserts that it is entitled to 35 percent of the consideration received by RNC, but as noted above
USLA is entitled to at most 23 percent. In contrast, RNC asserts that the equipment was sold at
market price. Seymour Decl. Ex. I, Mantulewicz Dep. 26:17-27:8 (explaining that Wrigley’s
valuation of the equipment “was close to the purchase price”); Seymour Decl. Ex. J, Copy of
9
Invoice Submitted to Customs (estimating value at $178,804.66).9 There is a genuine issue of
material fact regarding the amount of damages.
IV. CONCLUSION
For the foregoing reasons, USLA' s motion for partial summary judgment and RNC' s motion
for summary judgment are both DENIED. The Clerk ofthe Court is instructed to close both
motions and remove them from my docket.
SOO~ERED
ApritMQ.,2012
New York, New York
U.S.D.J.
• RNC has not had a chance to respond to some ofthese damage calculations because USLA only provided them in its
lerrer to the Court on March 29. 2012.
10
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