UBA, LLC v. ThyssenKrupp Elevator Corporation

Filing 44

ORDER denying 27 Motion for Summary Judgment and granting in part 34 Motion to Exclude Testimony of Dr. Daniel Uba - The parties are DIRECTED to confer and file a joint notice on the docket on or before February 14, 2017, specifying three alternative dates for a telephonic conference pursuant to Federal Rule of Civil Procedure 16 to discuss the next stage(s) of this case. Signed by District Judge Louise Wood Flanagan on 2/9/2017. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-477-FL

UBA, LLC,
Plaintiff,
v.
THYSSENKRUPP ELEVATOR
CORPORATION,
Defendant.

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ORDER

This matter is before the court on plaintiff’s motion for summary judgment (DE 27) and
defendant’s motion to exclude portions of the affidavit of plaintiff’s member and manager, Dr.
Daniel Uba (“Uba”), upon which plaintiff relies. (DE 34). The motions have been fully briefed, and
in this posture, issues raised are ripe for ruling. For the following reasons, defendant’s motion to
exclude is granted in part and plaintiff’s summary judgment motion is denied.
BACKGROUND
Plaintiff initiated this action August 18, 2015, in the Superior Court of Cumberland County,
North Carolina, seeking compensatory damages, punitive damages, specific performance, costs of
court, and attorney’s fees arising from defendant’s alleged breach of contract and violation of the
North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75-1.1 et
seq. Thereafter, defendant removed the case, centered around a dispute concerning repair of an
elevator, to this court pursuant to 28 U.S.C. §§ 1332, 1441, & 1446.

Following a period of discovery, plaintiff filed the instant motion August 9, 2016,
accompanied by a statement of material facts, appendix thereto, and memorandum of law. Plaintiff
relies upon the following materials: a work order executed by plaintiff’s owner; the affidavit of
defendant’s employee Barbara Sullivan (“Sullivan”); e-mail correspondence between the parties;
deposition testimony of defendant’s employee Jeff Slatcoff, Jr. (“Slatcoff”); and the affidavit of Uba.
Defendant responded in opposition to the instant motion, and separately filed a motion to
exclude portions of Uba’s affidavit. With the exception of that affidavit, defendant relies upon the
same evidence offered by plaintiff and, in addition, a note written by an unidentified employee of
plaintiff together with the deposition of plaintiff’s employee, Carolyn Chaple (“Chaple”).
Plaintiff also filed a document styled “objection to inadmissible facts,” pursuant to Federal
Rule of Civil Procedure 56(c)(2), where plaintiff raises issues not addressed in its memorandum in
support of summary judgment. (DE 39). Defendant requested opportunity to respond, (DE 42),
which the court construed as a motion for leave to sur-reply, which motion was allowed.
STATEMENT OF FACTS
The facts in the light most favorable to defendant may be summarized as follows. Two
inoperative elevators are located on the premises of plaintiff’s business in Fayetteville, North
Carolina. In an effort to have one of the two elevators repaired, plaintiff requested a quote from
defendant to perform certain work, the scope of which the parties dispute.
After inspecting the elevator, defendant, through its representative, in conversations with two
of plaintiff’s employees, explained that, for a fee, it was willing to remove certain parts from the
elevator and transport the parts to an independent machine shop. Defendant’s representative

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explained that the machine shop would troubleshoot the malfunctioning parts and quote a price to
complete all necessary repairs.
After the foregoing conversations, defendant prepared a work order (“11/8/2012 work
order”), which constituted defendant’s offer to provide certain services in exchange for $8,428.00.
The 11/8/2012 work order provides, in relevant part:
[defendant] will provide the necessary labor and material to perform the following
scope of work on (1) elevator:
C
C
C

Remove the Generator and Exciter from the elevator machine.
Take the Generator and Exciter to be repaired.
Replace Generator and Exciter back to elevator machine.

**NOTE: This quote and work order is the first part of troubleshooting the elevator. This
quote is to perform only labor and repairs stated above. After repairing the generator,
[defendant] will be able to troubleshoot further to see any other problems the elevator might
have. Any other labor and repairs that need to be done outside the scope of work stated
above, will be quoted separately at that time.**
(DE 29-2 at 3).1 The 11/8/2012 work order called for payment in two installments, requiring
plaintiff to pay 75% of the contract price up front and the remaining 25% after defendant’s full
performance. On December 5, 2012, plaintiff’s owner, Uba, executed that 11/8/2012 work order
and paid 75% of the contract price in accord therewith.
Pursuant to the 11/8/2012 work order, defendant removed the elevator parts and transported
them to a third-party repair facility sometime in December 2012. Based upon this delivery,
defendant sent an invoice for the final 25% fee claiming that it had discharged its duties under the
11/8/2012 work order. Defendant also sent a second work order offering, for a fee of $32,305.00,
“[r]einstallation of repaired [g]enerator. [r]einstallation of repaired [e]xciter, [and to t]ry to get

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A copy of the 11/8/2012 work order is attached at Appendix A hereto.

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elevator back to working/running service” (“12/11/2013 work order”) (DE 29-6).2 In a series of emails following, plaintiff denied that defendant discharged its duties under the 11/8/2012 work
order. Nonetheless, plaintiff issued a check to defendant for the remaining 25% fee. Plaintiff did
not enter into the 2/11/2013 work order. Consequently, defendant performed no further work on
plaintiff’s elevator or parts. This action followed.
COURT’S DISCUSSION
A.

Standard of Review
Summary judgment is appropriate where “the movant shows that 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). The party seeking summary judgment “bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
Once the moving party has met its burden, the non-moving party must then “come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (internal quotation omitted). Only disputes
between the parties over facts that might affect the outcome of the case properly preclude the entry
of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding
that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only
if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party).

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A copy of the 2/11/2103 work order is attached at Appendix B.

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“[A]t the summary judgment stage the [court’s] function is not [itself] to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id.
at 249. In determining whether there is a genuine issue for trial, “evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in [non-movant’s] favor.” Id. at 255; see
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the inferences to
be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must
be viewed in the light most favorable to the party opposing the motion.”).
Nevertheless, “permissible inferences must still be within the range of reasonable probability,
. . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary
inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace v. SherwinWilliams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter
of law is warranted where “the verdict in favor of the non-moving party would necessarily be based
on speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir.
2005). By contrast, when “the evidence as a whole is susceptible of more than one reasonable
inference, a [triable] issue is created,” and judgment as a matter of law should be denied. Id. at 48990.
B.

Analysis
1.

Defendant’s Motion to Exclude

Before turning to the merits of plaintiff’s motion, the court first addresses defendant’s motion
to exclude portions of Uba’s written testimony concerning his beliefs as to proper interpretation of
the 11/8/2012 work order.

In particular, defendant objects to testimony that defendant

unambiguously is required under the 11/8/2012 work order to repair plaintiff’s elevator.

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It is the province of the court to determine the existence of ambiguities in a contract. See
State v. Phillip Morris USA Inc., 363 N.C. 623, 631 (2009) (“Interpreting a contract requires the
court to examine the language of the contract itself for indications of the parties’ intent at the
moment of execution.”) (internal citation and quotation omitted) (emphasis added). With respect
to those portions of the affidavit reciting Uba’s conclusions from an independent reading of the
11/8/2012 work order, his testimony is not factual in nature, as required by the Federal Rules of
Civil Procedure. Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose
a motion must . . . set out facts that would be admissible in evidence . . . .”) (emphasis added).
Instead, numerous statements in Uba’s affidavit simply echo plaintiff’s favored interpretation of the
11/8/2012 work order.
For the foregoing reasons, defendant’s motion to exclude is granted in part, with respect the
last sentence of paragraph four purposefully stating “for [defendant] to remove, take away, repair,
and replaced [plaintiff’s] generator and exciter to and from [plaintiff’s] elevator machine.” The
court also strikes the entirety of paragraphs seven, 10, and 11, variously concerning what defendant
is required to do pursuant to the documentation and what the contract requires by its terms.
Uba also briefly describes the series of events preceding his decision to sign the 11/8/2012
work order, and, additionally, he states that defendant did not repair or replace plaintiff’s elevator.
Based on the extant record, the foregoing statements are relevant, grounded in Uba’s personal
knowledge, and succinctly presented. Therefore, to the extent defendant moves, pursuant to Federal
Rule of Evidence 403, to exclude statements not specifically excluded above, the motion is denied.

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2.

Plaintiff’s Motion for Summary Judgment
a.

Breach of contract claim

Plaintiff claims entitlement to summary judgment for its breach of contract claim based upon
defendant’s failure to fully restore its elevator to working order. Under North Carolina law, the
“elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the
terms of that contract.” Crosby v. City of Gastonia, 635 F.3d 634, 645 (4th Cir. 2011) (quotations
omitted). To constitute a valid contract, “the parties must assent to the same thing in the same sense,
and their minds must meet as to all the terms.” Boyce v. McMahan, 285 N.C. 730, 734 (1974); see
Horton v. Humble Oil & Refining Co., 255 N.C. 675, 679 (1961) (“[I]t is necessary that the minds
of the parties meet upon a definite proposition. There is no contract unless the parties thereto assent,
and they must assent to the same thing, in the same sense.”).
“Interpreting a contract requires the court to examine the language of the contract itself for
indications of the parties’ intent at the moment of execution.” State v. Phillip Morris USA Inc., 363
N.C. 623, 631 (2009) (internal citation and quotation omitted). “It is the general law of contracts that
the purport of a written instrument is to be gathered from its four corners, and the four corners are
to be ascertained from the language used in the instrument.” Carolina Power & Light Co. v.
Bowman, 229 N.C. 682, 693–94 (1949).
“Where the terms of the contract are not ambiguous, the express language of the contract
controls in determining its meaning and not what either party thought the agreement to be.”
Crockett v. First Fed. Sav. & Loan Ass’n, 289 N.C. 620, 631 (1976). If language in a contractual
provision in dispute is ambiguous, by contrast, “parol or extrinsic evidence may be introduced to
show what was in the minds of the parties at the time of making the contract or executing the

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instrument, and to determine the object for or on which it was designed to operate.” Root v. Allstate
Ins. Co., 272 N.C. 580, 587 (1968). However, “[n]o ambiguity . . . exists unless, in the opinion of
the court, the language of the [contract] is fairly and reasonably susceptible to either of the
constructions for which the parties contend.” Penn. Nat’l Mut. Ins. Co. v. Strickland, 178 N.C. App.
547, 550 (2006); accord Wachovia Bank Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354
(1970).
In this case, the 11/8/2012 work order requires defendant to “[r]emove the [g]enerator and
[e]xciter from the elevator machine[; t]ake the [g]enerator and [e]xciter to be repaired, [and r]eplace
[the g]enerator and [e]xciter back to [the] elevator machine.” (DE 29-2). The parties do not dispute
that defendant discharged its duty to remove the generator and exciter. However, where the it
requires that defendant “take the [g]enerator and [e]xciter to be repaired[,]” the 11/8/2012 work
order is ambiguous. (Id.). Specifically, by its use of the passive voice phrase, “to be repaired[,]”
the 11/8/2012 work order fails to specify who the parties intended to perform any contemplated
repairs. (Id.)
The remaining language in the 11/8/2012 work order does not resolve this ambiguity. For
example, the 11/8/2012 work order contains the sentence, “[t]his quote is to perform only labor and
repairs stated above[].” (Id.). The foregoing arguably contemplates the possibility that, to complete
the 11/8/2012 work order, defendant must perform repairs. Alternatively, the sentence does not rule
out the possibility that a third party should perform the repairs, or that the number of repairs thereby
described is, in fact, zero.
Similarly, the statement “[a]fter performing the repairs, [defendant] will be able to
troubleshoot further . . . [,]” arguably implies that defendant agreed to perform repairs. (Id.)

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However, the foregoing sentence follows another sentence stating that the 11/8/2012 work order
embraces “only labor and repairs stated above.” (Id.) (emphasis added). Because the former
sentence is not “above” the latter in its text, the 11/8/2012 work order arguably directs the reader
to ignore the former sentence in determining the scope of defendant’s duties under the 11/8/2012
work order.
Finally, the 11/8/2012 work order requires defendant to “[r]eplace the [g]enerator and
[e]xciter back to [the] elevator machine[.]” (Id.) However, in light of provisions contemplating a
multi-phased repair process, the foregoing language does not unambiguously exclude the possibility
that the 11/8/2012 work order commits defendant to remove and replace the elevator while leaving
a third-party to repair the generator and exciter under a separately negotiated contract.
Therefore, because ambiguity exists within the four corners of the 11/8/2012 work order, the
court may consider parol evidence “to show what was in the minds of the parties at the time of
making the contract . . .” Root, 272 N.C. at 587 (1968). Defendant offers two items of parol
evidence to support its reading of the 11/8/2012 work order. First, a handwritten note penned by
an unidentified employee of plaintiff states:
[e]levator - [f]irst repair generator (remove + transport + labor) $3000 – $4000 . . .
Jeff [phone]
(DE 32-4). The parties agree that this note constitutes a contemporaneous record of a conversation
with Slatcoff, defendant’s customer liaison. However, the note does not clarify any provision of the
11/8/2012 work order. Specifically, the note’s reference to “labor” could refer, as plaintiff suggests,
to defendant’s obligation to repair the elevator, or, as defendant suggests, to an obligation derivative
of defendant’s obligation to “remove” and “transport” parts of plaintiff’s elevator to a third-party
repair shop.
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Finally, Slatcoff testified in his deposition that he explained the requirements of the
11/8/2012 work order to plaintiff’s employees before plaintiff signed it. Specifically, Slatcoff stated
that, in the only conversations he had with anyone associated with plaintiff, he explained to Sullivan
and Chaple, plaintiff’s employees, that:
we were going to need to get a signed . . . check [from plaintiff] authorizing
[defendant] to provide labor to take the damaged generator out of there and get it to
a machine shop that [defendant] used to get a quote for repairing it.
(DE 32-6 at 18) (emphasis added). Nowhere in the record does plaintiff deny that this conversation
took place or that plaintiff’s understanding of the 11/8/2012 work order differed from Slatcoff’s
explanation at the time of signing. Therefore, viewed in the light most favorable to defendant, parol
evidence, in the form of Slatcoff’s explanation of the 11/8/2012 work order’s intended meaning, may
tend to support a finding that defendant was not required to repair plaintiff’s elevator.
In support of a contrary argument, plaintiff observes that, under North Carolina law, “[o]ne
of the most fundamental principles of contract interpretation is that ambiguities are to be construed
against the party who prepared the writing.” Chavis v. Southern Life Ins. Co., 318 N.C. 259, 262
(1986). To apply this rule, North Carolina courts consider “the language of the contract, the
apparent purpose of the contract and the situation of the parties at the time of its execution . . .”
Adder v. Holman & Moody, Inc., 288 N.C. 484, 493 (1975) (holding that where a customer
possessed pending negligence claims against the builder of a drag racing car, a subsequently
executed contract in which the customer waived defenses to indebtedness based on poor
workmanship did not constitute a waiver of the pending negligence claims because the builder
drafted the waiver and knew about the pending negligence action at the time of drafting).

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Based on the text, purpose, and situation of the parties surrounding the11/8/2012 work order,
plaintiff has not established that the words “to be repaired” must be construed to mean “to be
repaired by defendant.” Specifically, the 11/8/2012 work order’s critical text, “to be repaired[,]” is
open ended and leaves open the possibility that any number of individuals might complete the
contemplated repairs. Second, where the 11/8/2012 work order’s evident purpose is to initialize
some manner of multi-phased transaction, plaintiff’s preferred construction mandating that
defendant restore plaintiff’s elevator to working order is inconsistent with a reading of the 11/8/2012
work order that contemplates multiple phases of repair and troubleshooting.

Accordingly,

construing ambiguities in plaintiff’s favor does not establish that the 11/8/2012 work order obligates
defendant to restore plaintiff’s elevator to working order.
For the foregoing reasons, a triable issue of fact exists regarding interpretation of the
11/8/2012 work order. Therefore, plaintiff’s motion for summary judgment regarding its breach of
contract claim must be denied.
b.

Specific performance

Because plaintiff’s claimed entitlement to specific performance is predicated upon
defendant’s underlying alleged breach of contract, plaintiff’s motion for summary judgment
regarding specific performance must be denied. Additionally, specific performance is not an
available remedy in this matter even if plaintiff successfully demonstrates at trial that its reading of
the 11/8/2012 work order is correct.
Under North Carolina law, specific performance is available as a remedy for breach of
contract only if the aggrieved party does not have an adequate remedy at law. Bell v. Smith
Concrete Prods., Inc., 263 N.C. 389, 390 (1965). To determine whether a remedy at law is adequate,

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North Carolina courts consider the difficulty for the court in determining a proper damages award,
difficulty for a plaintiff in collecting damages, and whether the party seeking specific performance
could use monetary damages to purchase an adequate substitute for the promised performance.
Whalehead Properties v. Coastland Corp., 299 N.C. 270, 283 (1980).
A survey of cases decided in the Supreme Court of North Carolina reveals that North
Carolina courts typically deem a damages award inadequate only in contracts to convey real
property, Crawford v. Allen, 189 N.C. 434, 526 (1925), transactions involving objects that are
unique or difficult to value, Paddock v. Davenport, 107 N.C. 710, 710 (1890), and disputes
involving divorce and child custody, Cavenaugh v. Cavenaugh, 317 N.C. 652, 658 (1986). Plaintiff
has cited no decision in which a North Carolina court granted specific performance as a remedy for
breach of a contract for services, and the court is aware of none. Additionally, while the North
Carolina Supreme Court has not addressed the question in any case of which the court is aware, the
North Carolina Court of Appeals has noted the existence of a “policy against specific enforcement
of personal services contracts,” Williams v. Habul, 219 N.C. App. 281, 291 (2012).
Moreover, the North Carolina Supreme Court has turned to the Restatement (second) of
Contracts for guidance in determining the content of North Carolina contract law. See e.g., Bledsole
v. Johnson, 357 N.C. 133, 138 (2003); Raritan River Steel Co. v. Cherry, Bekaert & Holland, 329
N.C. 646, 651 (1991). Where it advises that “[a] promise to render personal service will not be
specifically enforced,” Restatement (second) of Contracts § 367(1), the Restatement is in accord
with North Carolina public policy as described by the court of appeals. See Williams, 219 N.C.
App. at 291. The official comment accompanying § 367 notes that the basis for denying specific
performance in services contracts includes “the undesirability of compelling the continuance of

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personal association after disputes have arisen and confidence and loyalty are gone[.]” Restatement
(second) of Contracts § 367 cmt. (a). Additionally, specific performance is undesirable to the extent
it imposes upon the court an ongoing duty to supervise performance by an unwilling party. Id. §
366.
In this case, even if plaintiff succeeds on its breach of contract claim, the record discloses
no basis to conclude that an award of damages would fail to compensate plaintiff’s loss. In
particular, where plaintiff urges that a damages award is inadequate because damages would not
reunite plaintiff with its elevator parts, plaintiff misconstrues the relevant sense in which a remedy
at law must be inadequate to justify the remedy of specific performance. In contrast to actions
involving land, unique property, or child custody, in which cases the subject of litigation is clearly
incommensurable with monetary compensation, plaintiff’s alleged injuries are necessarily economic
in nature. See Griffin v. Wheeler-Leonard & Co., Inc., 290 N.C. 185, 200–201 (1976) (where a
construction company allegedly breached an implied warranty through substandard workmanship,
plaintiff was entitled to damages either for the difference in value between the actual property and
the value of the property as warranted or for the cost to bring the property into compliance with the
implied warranty). Such injuries are adequately redressable by a damages award sufficient to
compensate plaintiff’s frustrated reasonable expectations under the 11/8/2012 work order. See
Fulcher v. Nelson, 273 N.C. 221, 226 (1968) (stating that an aggrieved party’s expectation interest
constitutes the measure of damages for breach of contract).

Therefore, plaintiff’s claimed

entitlement to specific performance fails as a matter of law since plaintiff cannot demonstrate that
a remedy at law is inadequate. See Bell, 263 N.C. at 390.

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Furthermore, North Carolina’s policy against granting specific performance in personal
services contracts constitutes an additional and independent basis to grant summary judgment for
defendant on the issue of specific performance. See Williams, 219 N.C. App. at 291. Specifically,
as described in the Restatement, granting specific performance in this case would effect the
undesirable consequence of “compelling the continuance of personal association after disputes have
arisen and confidence and loyalty are gone[.]” See Restatement (second) of Contracts § 367 cmt. a.
Additionally, granting specific performance would impose upon the court an ongoing and
unnecessary duty to monitor defendant’s compliance with the court‘s order. As set forth above, each
of these consequences is inconsistent with North Carolina public policy; therefore, an order granting
specific performance is unwarranted here. See Id.; Williams, 219 N.C. App. at 291.
For the foregoing reasons, plaintiff’s motion for summary as to specific performance is
denied.
c.

UDPTA

Finally, plaintiff moves for summary judgment regarding its claims under the UDPTA.
Because plaintiff has not set forth facts to support a UDPTA violation, plaintiff’s motion must be
denied.
North Carolina law provides a private right of action, treble damages, and attorney’s fees to
any person injured by a violation of the North Carolina Unfair and Deceptive Trade Practices Act
(“UDPTA”). N.C. Gen Stat. 75-1.1. et seq. To succeed under the UDTPA, a plaintiff must show:
“(1) the defendant committed an unfair or deceptive act or practice, (2) the action in question was
in or affecting commerce, and (3) the act proximately caused actual to the plaintiff.” Bumpers v.
Community Bank of Northern Virginia, 367 N.C. 81, 88 (2013).

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North Carolina law does not permit a plaintiff “to multiply the damages for an ordinary
breach of an agreement by re-characterizing the breach as a violation of the UDPTA.” PCS
Phosphate Co., Inc., v. Norfolk Southern Corp., 559 F.3d 212, 224 (4th Cir. 2009); see Broussard
v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 347 (4th Cir. 1998) (citing Branch Banking
& Trust Co. v. Thompson, 109 N.C. App. 53, 62 (1992)). Accordingly, “a mere breach of contract,
even if intentional” cannot serve as the basis for a UDPTA claim unless a plaintiff can show
“substantial aggravating circumstances attending the breach.” PCS Phosphate Co., Inc., 559 F.3d
at 224. The Fourth Circuit has opined that to demonstrate the required aggravating circumstances,
a plaintiff must show “deception either in the formation of the contract or in the circumstances of
its breach.” Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530, 535 (4th Cir. 1989).
The evidence of record discloses that plaintiff cannot recover under the UDPTA since the
alleged conduct at issue constitutes, at most, a mere breach of contract. Specifically, the evidence
demonstrates that even if defendant’s conduct ultimately constitutes non-performance of the
11/8/2012 work order, such conduct was not deceptive. That is, there is no indication that defendant
deceived plaintiff when it submitted the 11/8/2012 work order for plaintiff’s consideration, and
plaintiff does not dispute that defendant at least partially performed the requirements of the
11/8/2012 order when it removed parts from plaintiff’s elevator. Further, where plaintiff attempts
to re-characterize defendant’s conduct as holding plaintiff’s elevator parts for “ransom,” plaintiff
overstates its case. In particular, defendant’s offer to return the malfunctioning elevator parts (see
DE 32-5) negates plaintiff’s theory that defendant attempted to hold plaintiff’s elevator parts for
“ransom.” Additionally, although defendant remains unwilling to repair and reinstall the parts, this
unwillingness is grounded, not in an attempt to extort plaintiff, but in defendant’s belief that the

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11/8/2012 work order does not require such action, which, as set forth above, is a plausible reading
of the 11/8/2012 work order.
For the foregoing reasons, plaintiff’s motion for summary judgment as to its UDPTA claim
is denied.
C.

Plaintiff’s Rule 56(c)(2) Objection

In presenting the issues for summary judgment, “[a] party may object that the material cited
to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
Fed. R. Civ. P. 56(c)(2). “In assessing a summary judgment motion, a court is entitled to consider
only the evidence that would be admissible at trial.” Kennedy v. Joy Techs., Inc., 269 Fed.Appx.
302, 308 (4th Cir. 2008) (citing Maryland Highways Contractors Ass’n, Inc. v. State of Maryland,
933 F.2d 1246, 1251 (4th Cir. 1991)). Irrelevant evidence is inadmissible at trial. Fed. R. Evid. 402.
Because defendant has established the existence of a genuine dispute of material fact on
grounds unrelated to the existence of a prior contract between the parties, the court need not resolve
at this juncture issues raised by plaintiff pertinent to defendant’s references in defense of motion to
a prior agreement between the parties in which plaintiff agreed to pay defendant to fully modernize
one of plaintiff’s elevators in exchange for $125,000.00. While denying that objection now as
MOOT, plaintiff is of course free to raise the objection later, in the trial context.
CONCLUSION
Based on the foregoing, defendant’s motion to exclude (DE 34) is GRANTED IN PART as
set forth herein. Plaintiff’s motion for summary judgment (DE 27) is DENIED. Plaintiff’s objection
is DENIED as MOOT. The parties are DIRECTED to confer and file a joint notice on the docket
on or before February 14, 2017, specifying three alternative dates for a telephonic conference

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pursuant to Federal Rule of Civil Procedure 16 to discuss the next stage(s) of this case. Particularly,
the court is interested in the status of any settlement negotiations, where mediation previously was
ordered yet nothing appears on the docket evidencing conduct of same. In the event it is reported
that mediation previously was undertaken, the court will solicit the parties’ views as to whether
further efforts may aid resolution of this case short of trial. Given the court’s pronouncements upon
whether plaintiff may prevail upon claim for specific performance and for relief under the UDPTA,
the court will hear further from the parties on issues remaining for trial, with deference also to Rule
1 of the Federal Rules of Civil Procedure.
SO ORDERED, this the 9th day of February, 2017.

________________________
LOUISE W. FLANAGAN
United States District Judge

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APPENDIX A

Case 5:15-cv-00477-FL Document 29-2 Filed 08/09/16 Page 2 of 4

Case 5:15-cv-00477-FL Document 29-2 Filed 08/09/16 Page 3 of 4

Case 5:15-cv-00477-FL Document 29-2 Filed 08/09/16 Page 4 of 4

APPENDIX B

Case 5:15-cv-00477-FL Document 29-6 Filed 08/09/16 Page 2 of 4

Case 5:15-cv-00477-FL Document 29-6 Filed 08/09/16 Page 3 of 4

Case 5:15-cv-00477-FL Document 29-6 Filed 08/09/16 Page 4 of 4