Source Associates, Inc. et al v. Mitsui Chemicals America, Inc. et al
Memorandum Opinion: The motions for summary judgment of defendants MCA, Bushman, and Breon are granted. All of plaintiffs' remaining claims are hereby dismissed. This case is closed. (Related Doc. Nos. 92 , 94 ). Judge Sara Lioi on 6/16/2017. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
SOURCE ASSOCIATES, INC., et al.,
MITSUI CHEMICALS AMERICA, et
CASE NO. 5:15-cv-215
JUDGE SARA LIOI
This matter is before the Court on two motions for summary judgment.1 The first
is the motion of defendants Mitsui Chemicals America, Inc. (“MCA”) and Gregory
Bushman (in his capacity as an employee of MCA) (“Bushman”) (collectively, the
“MCA defendants”) for judgment on the claims asserted against them by plaintiffs
Source Associates, Inc. (“Source”) and Conrad A. Mamajek, Inc. (“CAM”) (collectively
“plaintiffs” or “Source/CAM”) (Doc. No. 92 [“MCA SJ Mot.”]). Plaintiffs opposed the
motion (Doc. No. 99 [“Opp’n MCA SJ Mot.”]), and the MCA defendants filed a reply
(Doc. No. 103 [“MCA SJ Reply”]). The second is the amended motion of defendants
Bushman (in his individual capacity) and Lewis Breon (“Breon”) (collectively the
“Bushman/Breon defendants”) (Doc. No. 94 [“B&B SJ Mot.”]). Plaintiffs opposed the
Also before the Court are the objections of MCA to certain exhibits submitted by plaintiffs in support of
their opposition to MCA’s summary judgment motion. (Doc. No. 104), which the Bushman/Breon
defendants joined (Doc. No. 105). Plaintiffs filed a single opposition. (Doc. No. 107.) In ruling on the
defendants’ summary judgment motions, the Court did not rely upon the exhibits to which defendants
object. Accordingly, defendants’ objections are overruled as moot.
motion (Doc. No. 100 [“Opp’n B&B SJ Mot.”]), in response to which the
Bushman/Breon defendants filed an amended reply. (Doc. No. 106 [“B&B SJ Reply”]).
For the reasons that follow, defendants’ motions for summary judgment are
After this case was removed from the Summit County Court of Common Pleas on
the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiffs were granted
leave to file an amended complaint. The first amended complaint (Doc. No. 23 [“FAC”]),
brought against defendants MCA, Bushman,2 Breon, and NXT Phase, LLC (“NXT”),3
sets forth six claims for relief: against MCA for breach of contract (claim one) and for
breach of the covenant of good faith and fair dealing (claim two); against Bushman,
Breon and NXT for tortious interference with the contractual and business relationship
between MCA and Source/CAM (claim three); against all defendants for tortious
interference with contractual and business relationships between Source/CAM and nonparties Complex Chemicals Co., Inc. (“Complex”) and John Brindle Oil and Chem LTD
(“Brindle”) (claim four); and against all defendants for unjust enrichment (claim five) and
civil conspiracy (claim six).
Plaintiffs claim that “Bushman, both as an employee of Mitsui and individually, engaged in a course of
conduct . . . causing harm to Source and CAM.” (FAC ¶ 4.)
NXT was later dismissed from this action for failure to prosecute. (Doc. No. 49.)
The undisputed facts generally underlying all six claims can be briefly
summarized as follows.4 In the spring of 1999, Source and CAM entered into a joint
venture for the purpose of selling off-spec viscosity modifier polymer (“VME”) produced
by Mitsui Chemicals, Inc. (“MCI”) and Mitsui Elastomers Singapore Pte Ltd (“MELS”).
The off-spec VME produced by MCI and MELS was sold to plaintiffs through MCA.
Plaintiffs had two customers for this product—Brindle and Complex.
From 1999 through December 2013, Source purchased off-spec VME from MCA
at prices CAM negotiated with MCA for re-sale to Brindle and Complex. MCA dropshipped the product to Brindle and Complex. Net profits of the joint venture were divided
equally between Source and CAM.
Bushman was an employee of MCA until his retirement on December 31, 2013.
He held the position of Director of Business Development, and the sale of prime and offspec VME was his responsibility. Bushman discussed his retirement plans with his
supervisor in the first half of 2013, and recommended that in 2014, MCA utilize his
company, NXT, to sell off-spec VME. MCA terminated off-spec VME sales to plaintiffs,
effective December 31, 2013, and directed the sale of off-spec VME to NXT, instead.5
These events triggered this lawsuit.
Additional facts are discussed later in this opinion as necessary to the Court’s analysis of defendants’
Plaintiffs claim that Bushman utilized Source/CAM’s alleged secret and proprietary customer
information, buying history and pricing policies available to him from plaintiffs’ off-spec VME purchases
from MCA to deprive them of their off-spec VME business. Defendants dispute whether plaintiffs’
customer and pricing information is confidential and proprietary. While it appears that the defendants have
the better argument, the Court need not resolve this issue in order to rule on defendants’ summary judgment
Bushman (in his individual capacity) and Breon moved to dismiss the claims
asserted against them in the first amended complaint for failure to state a claim. The
motion was granted in part and denied in part. Source Assocs., Inc. v. Mitsui Chemicals
Am., Inc., No. 5:15-CV-215, 2016 WL 828785 (N.D. Ohio Mar. 3, 2016).
With respect to claim three, the motion was granted as to Breon but denied as to
Bushman. As to claim four brought against all defendants, the Court ruled that claim
failed to state a claim against Bushman and Breon, and claim four was dismissed as to
those defendants. Id. Bushman and Breon’s motion to dismiss claims five and six were
denied. Id. at *5-6. Finally, the Court declined to resolve the issue of whether plaintiffs’
claims are preempted by Ohio’s Uniform Trade Secret Act (“OUTSA”), leaving that
issue for summary judgment. Id. at *6-7.
MCA now moves for summary judgment on all claims asserted against the MCA
defendants: breach of contract (claim one); breach of the covenant of good faith and fair
dealing (claim two); tortious interference with contractual and business relationships
between plaintiffs and their customers, Brindle and Complex (claim four); unjust
enrichment (claim five); and civil conspiracy (claim six).
Bushman and Breon seek summary judgment on all claims that survived their
motion to dismiss. Bushman seeks summary judgment on claim three (tortious
interference with the relationship between plaintiffs and MCA), and Bushman and Breon
seek summary judgment on claims five and six.6
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate 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).7 A fact is material if its resolution affects the outcome of the lawsuit under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986). A dispute is genuine, and summary judgment is not appropriate, “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving
The moving party must provide evidence to the court that demonstrates the
absence of a genuine dispute as to any material fact. Whether a disputed fact is material is
entirely dependent upon the essential elements of each particular claim for which a party
seeks summary judgment. See In re Meridia Prod. Liab. Litig., 328 F. Supp. 2d 791, 796
As part of their motion, Bushman and Breon argue that the only evidence plaintiffs should be permitted to
advance in opposition to the motion are plaintiffs’ answers to interrogatories because those answers were
never supplemented after depositions. (B&B SJ Mot. at 2640-41 (all references to page numbers are to the
page identification numbers generated by the Court’s electronic filing system.).) Plaintiffs oppose
defendants’ argument that the evidence considered by the Court on summary judgment should be so
limited. (Opp’n B&B SJ Mot. at 3009-10.) Although the plaintiffs had a duty to supplement pursuant to
Fed. R. Civ. P. 26(e)(1), the Court will not limit the evidence as requested by defendants, because
consideration of the evidence does not change the outcome.
Because this matter is before the court pursuant to diversity jurisdiction, the Court applies federal
procedural law with respect to defendants’ motion for summary judgment, and state substantive law to
plaintiffs’ six state law claims. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188
(N.D. Ohio 2004) (“In seeking summary judgment, the moving party bears the initial
burden of showing an absence of a genuine issue of material fact as to an essential
element of the nonmoving party’s case.”) (citing Waters v. City of Morristown, 242 F.3d
353, 358 (6th Cir. 2001)). Once the moving party meets this initial burden, the opposing
party must come forward with specific evidence showing that there is a genuine issue for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986); Anderson, 477 U.S. at 250. The nonmoving party may oppose a summary
judgment motion “by any of the kinds of evidentiary material listed in Rule 56(c), except
the mere pleadings themselves[.]” Celotex, 477 U.S. at 324. The Court must view all
facts and evidence, and inferences that may be reasonably drawn therefrom, in favor of
the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8
L. Ed. 2d 176 (1962).
General averments or conclusory allegations of an affidavit do not create specific
fact disputes for summary judgment purposes. See Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 888-89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). “‘The mere existence of a
scintilla of evidence in support of the [nonmoving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [nonmoving
party].’” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989) (quoting
Anderson, 477 U.S. at 252).
The district court’s review on summary judgment is a threshold inquiry to
determine whether there is the need for a trial due to a genuine factual dispute that must
be resolved by a finder of fact because those issues may reasonably be resolved in favor
of either party. Anderson, 477 U.S. at 250. Put another way, this Court must determine
“whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52;
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir. 2003).
Summary judgment is required:
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that
party bears the burden of proof at trial. In such a situation, there can be no
genuine issue as to any material fact, since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial. The moving party is entitled to
judgment as a matter of law because the nonmoving party has failed to
make a sufficient showing of an essential element of [his] case with
respect to which [he] has the burden of proof.
Celotex, 477 U.S. at 322-23 (internal quotation marks and citation omitted).
B. Choice of Law
Neither party has advanced any evidence or argument regarding the issue of
choice of law applicable to plaintiffs’ claims. “Absent an effective choice of law
provision, Ohio courts apply the law of the state with the most significant relationship to
the contract.” Bruster v. Uber Tech., Inc., 188 F. Supp. 3d 658, 663 (N.D. Ohio 2016)
(quoting Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618, 623 (6th Cir.
2008) (further citation omitted)). “To assist in making this determination, Section
188(2)(a) through (d) [of the Restatement of Conflicts] more specifically provides that
courts should consider the place of contracting, the place of negotiation, the place of
performance, the location of the subject matter, and the domicile, residence, nationality,
place of incorporation, and place of business of the parties.” Ohayon v. Safeco Ins. Co. of
Illinois, 747 N.E.2d 206, 209 (Ohio 2001).
Both plaintiff corporations are citizens of Ohio, and their principal places of
business are in Ohio. (FAC ¶¶ 1, 2.) The oral agreement that plaintiffs allege controls this
case was negotiated in Japan, as discussed below. MCA, which performed administrative
functions related to the alleged agreement, is incorporated in the State of Delaware, with
its principal place of business in New York. (Doc. No. 1 ¶ 8). Bushman is a citizen of
New York, and Breon now resides in California. (Id. ¶¶ 9, 10.) During all time periods
relevant to this case, however, Breon was an employee of Lubrizol, an Ohio corporation.
(See MCA SJ Mot. at 2426.)
Neither side has briefed the choice of law issue, but both sides apply Ohio law to
their analysis. Upon balancing the above factors, the Court finds that Ohio has the most
significant relationship to this dispute and, therefore, will apply Ohio law.
A. Claim one—Breach of contract against MCA
“Under Ohio law, the elements of a breach of contract claim are: (1) the existence
of a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4)
damage or loss to the plaintiff as a result of the breach.” V & M Star Steel v. Centimark
Corp., 678 F.3d 459, 465 (6th Cir. 2012) (citing, among authorities, Savedoff v. Access
Grp., Inc., 524 F.3d 754, 762 (6th Cir. 2008)).
Plaintiffs claim that there is an enforceable contract between MCA and plaintiffs,
requiring MCA to sell off-spec VME to them exclusively and until such time as plaintiffs
no longer desire to purchase that product. According to plaintiffs, the alleged contract
was formed when Mamajek traveled to Japan as a Lubrizol employee, just before he
retired in 1998, in order to meet with MCI executive, Katsuhiko Tasaka (“Tasaka”).
During that meeting, plaintiffs claim that Tasaka told Mamajek that MCI had a
warehouse full of off-spec VME that it could not sell because of MCI’s existing
agreement to sell prime VME to Lubrizol, and Tasaka sought Mamajek’s help.
According to Mamajek, he and Tasaka reached an agreement concerning the
purchase and resale of off-spec VME. (Doc. No. 68-1 (Deposition of Conrad Mamajek
[“Mamajek Dep.”]) at 950-51.) Mamajek agreed to buy MCI’s off-spec VME and sell it,
with 30-60 day payment terms, at an agreed price (subject to changes in the market).
Under their agreement, Mamajek was not obligated to buy a specific amount of off-spec
VME, or any at all. (Id. at 952-53.) According to Mamajek, his oral agreement with
Tasaka was good for a year and then it was “evergreen” and “kept rolling over every year
after that.” (Id. at 952-54.)
Mamajek testified that, under the alleged agreement, MCI was free to stop selling
off-spec VME to Mamajek and Mamajek was free to stop buying the product and, if
either took that action, they could not be sued by the other party. (Id. at 954-55.) That
said, Mamajek testified that his alleged agreement with MCI was exclusive and, although
he was not actually required to purchase any off-spec VME from MCI, MCI could not
sell off-spec VME to anyone but Mamajek as long as he lived or wanted to buy the
product. (Id. at 956-59.) Source did not have an agreement with MCI regarding off-spec
VME, but had an agreement with Mamajek to re-sell the product. (Id. at 1036-38.) Source
contends, however, that MCI’s agreement survives Mamajek and applies to Source
“[f]orever.” (Doc. No. 64-1 (Deposition of Chester Danforth [“Danforth Dep.”]) at 638
Plaintiffs contend that Mamajek’s alleged exclusive agreement with MCI to buy
and sell off-spec VME extends to, and obligates, all of MCI’s affiliated companies,
including MCA.9 (Opp’n MCA SJ Mot. at 2690.) Plaintiffs argue that MCA has the same
obligations as MCI under the alleged contract with Mamajek because: (1) MCA is a
wholly-owned subsidiary controlled by MCI (including its performance of the alleged
contract between MCI and Mamajek); (2) MCA is a third-party beneficiary to the MCI
agreement; and (3) MCA is in privity with MCI. Plaintiffs further argue that MCA is
estopped from denying that it owed plaintiffs any obligations under the alleged contract
because MCA cannot accept the benefits of the alleged contract, but deny its burdens. (Id.
at 2709-2712.) Finally, plaintiffs contend that MCA’s alleged obligations extend to
Source by virtue of the joint venture between Mamajek and Danforth, and because
Source is a third-party beneficiary of Mamajek’s agreement with MCI. (Id. at 2710-11.)
MCA argues that it is entitled to summary judgment on plaintiffs’ claim for
breach of contract because: (1) plaintiffs cannot show the existence of a contract and,
even if they can, the contract is with MCI (who is not a party to this case), and not MCA;
(2) any agreement is too indefinite to be enforceable; and (3) any agreement is
unenforceable under the statute of frauds. (See MCA SJ Mot. at 2434.)
Some depositions were filed in a format where four deposition transcript pages appear on a single page. In
such cases, the first page number reference is to the page identification number generated by the Court’s
electronic filing system. The parenthetical page numbers refer to the deposition transcript page number.
MCA is a wholly owned subsidiary of MCI. MCA and MCI, among other Mitsui entities, are part of the
Mitsui Chemicals Group. (Doc. No. 63-1 (Deposition of Laurent Vernier [“Vernier Dep.”]) at 469 (39-40);
Fujimoto Dec. ¶¶ 4, 5.)
All of plaintiffs’ arguments regarding MCA’s contractual obligations to plaintiffs
hinge on the enforceability of the Mamajek’s agreement with Tasaka. In the absence of
an enforceable agreement between Mamajek and MCI, there is no enforceable agreement
against MCA. For the reasons that follow, the Court finds that Mamajek’s alleged oral
agreement with MCI is not enforceable under Ohio’s statute of frauds.
1. Agreement with MCI unenforceable under Ohio’s statute of frauds
MCA argues that plaintiffs’ alleged oral contract with MCI is unenforceable
under Ohio Rev. Code § 1302.04(A) because the agreement is for more than $500 in
sales of off-spec VME.10 That section provides:
(A) Except as otherwise provided in this section a contract for the sale of
goods for the price of five hundred dollars or more is not enforceable
by way of action or defense unless there is some writing sufficient to
indicate that a contract for sale has been made between the parties
and signed by the party against whom enforcement is sought or by his
authorized agent or broker. A writing is not insufficient because it
omits or incorrectly states a term agreed upon but the contract is not
enforceable under this division beyond the quantity of goods shown
in such writing.
“The purpose of the statute of frauds is to prevent unfounded oral contract
claims[.]” Copeland Corp. v. Choice Fabricators Inc., 345 F. App’x 74, 77 (6th Cir.
2009) (citation omitted). “While the writing need only ‘afford a basis for believing that
the offered oral evidence rests on a real transaction,’ it must satisfy ‘three definite and
invariable requirements’: (1) it must ‘evidence a contract for the sale of goods,’ meaning
it must indicate a contract has been made although the contract itself may be oral; (2) it
must include ‘authentication which identifies the party to be charged’ and (3) ‘it must
specify a quantity.’” Copeland Corp., 345 F. App’x at 76 (citing U.C.C. § 2-201 cmt. 1;
Ohio’s uniform commercial code § 1302.04(A) is identical to Uniform Commercial Code § 2-201(1).
see also Columbus Trade Exch., Inc. v. AMCA Int’l Corp., 763 F. Supp. 946, 950 (S.D.
Ohio 1991)). The writing must indicate a completed transaction for goods, not a future
transaction. Puritan Sys., Inc. v. M. G. Indus., Inc., No. 18093, 1997 WL 775681, at *3
(Ohio Ct. App. Oct. 29, 1997) (citation omitted).
Plaintiffs do not dispute that § 1302.04 applies to the alleged agreement. There is
no dispute that the agreement is oral—there are no faxes, emails, or other written
communications with MCI, Tasaka, or his assistant, that state the terms of Mamajek’s
alleged agreement regarding off-spec VME. (Mamajek Dep. at 1106-1107; see also Doc.
No. 92-3 at 2462 (Answer to Request for Admission No. 1).) Thus, the alleged agreement
between Mamajek and MCI is not enforceable under § 1302.04(A).
2. Merchant exception—§ 1302.04(B)
Even though an oral agreement for more than $500.00 may not be enforceable
under § 1302.04(A), an agreement may still be enforceable if it satisfies the requirements
of the merchant exception under § 1303.04(B).11
MCA posits that Source, Mamajek, MCA, and MCI are “merchants” within the
meaning of the statute. (See MCA SJ Mot. at 2437 n.11.) A “‘[m]erchant’ means a person
who deals in goods of the kind or otherwise by the person's occupation holds the person
out as having knowledge or skill peculiar to the practices or goods involved in the
transaction or to whom such knowledge or skill may be attributed by the person’s
employment of an agent or broker or other intermediary who by the agent’s, broker’s, or
other intermediary’s occupation holds the person out as having such knowledge or skill.”
Ohio Revised Code § 1302.04(B) is identical to UCC § 2-201(2).
Ohio Rev. Code § 1302.01(A)(5). In opposing MCA’s motion, plaintiffs do not dispute
that Source, Mamajek, MCI, and MCA are “merchants” under the statute.
Section 1302.04(B) provides:
Between merchants if within a reasonable time a writing in confirmation
of the contract and sufficient against the sender is received and the party
receiving it has reason to know its contents, it satisfies the requirements of
division (A) of this section against such party unless written notice of
objection to its contents is given within ten days after it is received.
In order “[f]or a writing to be ‘sufficient against the sender,’ it must meet the
requirements set forth in R.C. 1302.04(A).” Aubin Indus., Inc. v. Smith, No. C-1-04-681,
2007 WL 2626433, at *10 (S.D. Ohio Sept. 6, 2007).
First, the writing must be signed by the party to be charged. Puritan
Systems, Inc. v. M.G. Industries, Inc., 1997 WL 775681, *2-4 (Ohio App.
9 Dist., 1997). Second, the writing must indicate that there has been a
completed transaction for goods, not a future transaction. Id. Third, the
writing must state the quantity of goods involved. In the case of a
requirements contract, a writing indicating that a buyer would get its
supply of a product from the seller and giving a definite time frame to the
agreement may be sufficient to fulfill the quantity term requirement.
Whether a confirmatory writing is sufficient against the sender is a question of
law. Puritan Sys., 1997 WL 775681, at *3 (citation omitted); see also Carcorp, Inc. v.
Chesrown Oldsmobile--GMC Truck, Inc., 823 N.E.2d 34, 39 (Ohio Ct. App. 2004) (“The
issue whether appellant’s breach of contract claim is barred by R.C. 1301.12 [(statute of
frauds for personal property)] . . . was properly before the trial court for determination as
a matter of law.”).
Plaintiffs contend that both MCI and MCA confirmed the oral agreement between
Mamajek and Tasaka by an email on July 25, 2012 from Bushman (an MCA employee)
to Mamajek, which states:
Tokyo has confirmed that you are the only outlet for off spec VME. They
are very concerned about potential confusion in market and are committed
to the current route (i.e. you).
(Opp’n MCA SJ Mot. at 2694-95; Danforth Dep. at 638 (214-16); Doc. No. 92-11
(defense exhibit 8).)
MCA argues that this email does not satisfy the confirmatory writing requirement
of the merchant exception because Bushman’s email does not constitute a signed writing
and says nothing about the terms of the agreement. In addition, the email was sent more
than a decade after the alleged formation of the oral contract, and does not specify a
quantity term, which is an essential requirement of Ohio Rev. Code § 1302.04(A). (MCA
SJ Mot. at 2436-37.)
Bushman’s email to Mamajek is not sufficient against MCI
An email can constitute a writing under § 1302.04(A). See Copeland Corp., 345
F. App’x at 77. Bushman’s email, however, makes no mention at all of any agreement, or
of any terms. Even if it did, the email is not from Tasaka or MCI.
There is no dispute that Mamajek made his alleged agreement with Tasaka and
MCI, not with MCA. Indeed, it is plaintiffs’ position that “MCI, not MCA, had the
responsibility for the VME products and was the appropriate entity to make an agreement
for this business.” (Opp’n MCA SJ Mot. at 2694 (citing Mamajek Dep. at 152-153).)
MCA itself does not produce off-spec VME—that product was produced in Japan or
Singapore. (Vernier Dep. at 473 (54-55).) As plaintiffs describe it, MCI brought “MCA
into the agreement to perform various obligations under it[,]” specifically, to perform a
number of administrative functions for which it received a 3.5% commission. (Opp’n
MCA SJ Mot. at 2709-10 (citing (Mamajek Dep. at 231).) Although MCA performed
administrative functions with respect to Mamajek’s alleged agreement with MCI, even
Mamajek agrees that MCA itself had no contractual obligation to him. (Mamajek Dep. at
It is undisputed that Bushman was an employee of MCA, not MCI, at the time he
sent the July 25, 2012 email to Mamajek. Bushman’s email purports to relay information
from “Tokyo,” but contains no indicia that the email is from MCI or Tasaka. See Puritan
Sys., 1997 WL 775681, at *3 (a written confirmation “sufficient against the sender,” may
be satisfied, for example, by a purchase order containing the logo and address of the party
against whom the contract is to be enforced). Moreover, plaintiffs have advanced no
evidence that when Bushman sent this email to Mamajek, he was acting as MCI’s
authorized agent or broker. Indeed, plaintiffs have advanced evidence to the contrary.
(Opp’n MCA SJ Mot. at 2697 (Bushman was informed that if Tasaka was still in charge
of off-spec VME sales Bushman would “be killed” for attempting to set the price
independent of MCI. (citations omitted)).) Thus, Bushman’s email is not sufficient to
constitute a writing against MCI under the merchant exception to the statute of frauds,
and the alleged oral agreement is unenforceable against MCI. Additionally, even if there
were a viable theory that would allow plaintiffs to enforce the alleged oral agreement
with MCI against MCA, any such oral agreement would be unenforceable against MCA
for the same reason.
Q. What obligations did Mitsui America have to you under the buy-sell agreement [with Tasaka]?
A. He was just support in the United States.
Q. You said “he.” What obligations did Mitsui America, the company, have to you?
A. Probably none.
Bushman’s email to Mamajek lacks the required quantity term
Even if Bushman’s email to Mamajek could be construed as a sufficient writing
against MCI or MCA, it would still fail to satisfy the requirements for a confirmatory
writing because it contains no quantity term. While the required writing need not contain
all material terms of the parties agreement, “[t]he only term which must appear is the
quantity term which need not be accurately stated but recovery is limited to the amount
stated.” Ohio Rev. Code § 1302.04 cmt. 1. “Typically . . . if a contract lacks a quantity
term, it is runs afoul of the Statute of Frauds and is not enforceable.” Orchard Grp., Inc.
v. Konica Med. Corp., 135 F.3d 421, 428 (6th Cir. 1998); H & C Ag Servs., LLC v. Ohio
Fresh Eggs, LLC, 41 N.E.3d 915, 923 (Ohio Ct. App. 2015) (same) (quoting Orchard
Group, 135 F.3d at 428)).
Bushman’s email to Mamajek contains no reference to quantity of any sort.
Plaintiffs argue that Bushman’s email (“Tokyo has confirmed that you are the only outlet
for off spec VME”) confirms a quantity of the output of all off-spec VME produced by
the Mitsui Group, and is sufficient to satisfy the quantity requirement of § 1302.04(A).
(Opp’n MCA SJ Mot. at 2714-15 (citing UCC 2-306 Official Comment 2).) It is true that,
rather than specifying a quantity, the UCC allows parties to a contract to measure the
quantity of goods by the good-faith output of the seller or the good-faith requirements of
the buyer. H & C Ag Servs., 41 N.E.3d at 923–24 (citation omitted). The email’s
reference to Mamajek as the “only outlet” for off-spec VME, however, cannot reasonably
be construed or interpreted as statement by MCI or MCA that Mamajek will purchase all
of the off-spec VME produced in good faith by the Mitsui Group. Moreover, Mamajek
concedes that his alleged agreement with Tasaka did not require him to purchase all, or
any, off-spec VME. (Mamajek Dep. at 952-54.)
The decision in H & C Ag Servs. is instructive. In that case, the contract language
provided for the purchase of “all available tonnage per year of manure” produced by the
seller. This language was insufficient, however, to constitute an output contract under the
statute of frauds for the sale of goods because the writing also provided that the specific
quantity was to be determined by mutual agreement of the parties. H & C Ag Servs., 41
N.E.3d at 924 (“The quantity term of an output or a requirements contract is not
measured by a specific quantity mutually agreeable to the parties.”) Similarly here, even
if Bushman’s email could be construed as output language, it would be insufficient under
the statute of fraud’s quantity requirement because the undisputed evidence on summary
judgment is that amount of off-spec VME to be purchased by Mamajek was entirely
discretionary. Thus, Bushman’s email is not sufficient under the merchant exception to
the statute of frauds because it fails to include a quantity term, and Mamajek’s agreement
with MCI is not enforceable.
Bushman’s email to Mamajek was not sent in a reasonable time
Finally, MCA argues that Bushman’s email to Mamajek in July 2012—sent
approximately 13 years after Mamajek’s alleged oral agreement with Tasaka—cannot
satisfy the merchant exception because it was not received by Mamajek within a
reasonable period of time. (MCA SJ Mot. at 2437.) Plaintiffs have provided the Court
with no legal authority that a written confirmation, sent 13 years after the alleged oral
agreement was made, constitutes a reasonable time under the merchant exception. Indeed,
plaintiffs do not address the issue of timeliness in their opposition to MCA’s motion.
The Court finds as a matter of law that a writing sent 13 years after the alleged
oral agreement between Tasaka and Mamajek was not sent within a reasonable period of
time as required by § 1302.04(B). See Aubin Indus., Inc. v. Smith, No. C-1-04-681, 2007
WL 2626433, at *10 (S.D. Ohio Sept. 6, 2007) (writing sent 2 years after the parties
entered into the alleged agreement was not sent within a reasonable time), aff’d, 321 F.
App’x 422 (6th Cir. 2008). Thus, this requirement of the merchant exception is also not
satisfied, and the alleged oral agreement between Mamajek and Tasaka is not
Bushman’s interoffice message to Nakagawa, Mizuno, and Okabe
In support of their argument that Bushman’s email to Mamajek satisfies the statue
of frauds, plaintiffs advance an undated interoffice message on MCA letterhead from
Bushman to Nakagawa, Mizuno, and Okabe. (Opp’n MCA SJ Mot. at 2715 (citing Doc.
No. 99-15).) Bushman’s message deals with a product unrelated to off-spec VME—
“Hiwax.” The only reference to off-spec VME in the message is as follows: “Source
Associates is selling our off spec VME. They are doing a good job of moving this
material in a way that does not interfere with our primary VME business with Lubrizol.”
Bushman’s undated message fails to satisfy the writing requirement of Ohio’s
statute of frauds for the sale of goods for the same reasons that Bushman’s email to
Mamajek fails. Moreover, the undated message does nothing to create a genuine dispute
of material fact as to the issue of whether Bushman’s email to Mamajek satisfies the
merchant exception to Ohio’s statute of frauds.
3. Partial performance—§ 1302.04(C)
Plaintiffs also argue that Mamajek’s oral agreement is enforceable under the
statute of frauds partial performance exception found in § 1302.04(C)(3). Under that
A contract which does not satisfy the requirements of division (A) of this
section but which is valid in other respects is enforceable:
(3) with respect to goods for which payment has been made and
accepted or which have been received and accepted in
accordance with section 1302.64 of the Revised Code.
The partial performance exception, however, is not applicable to plaintiffs’ claim
that MCA is contractually required to exclusively and perpetually sell off-spec VME to
plaintiffs. “‘Partial performance’ as a substitute for the required memorandum can
validate the contract only for the goods which have been accepted or for which payment
has been made and accepted.” Ohio Rev. Code 1302.04 cmt. 2 (emphasis added); E.C.
Styberg Eng’g Co. v. Eaton Corp., 492 F.3d 912, 919 n.4 (7th Cir. 2007) (partial
performance exception to the statute of frauds limits recovery to the scope of the contract
performed) (applying Ohio law and citing Ohio Rev. Code § 1302.04 cmt. 2 and Royal
Doors, Inc. v. Hamilton–Parker Co., No. 92AP–938, 1993 WL 141233, at *5–6 (Ohio Ct.
App. April 29, 1993)); see also Orteck Int’l Inc. v. Transpacific Tire Wheel, Inc., 704 F.
Supp. 2d 499, 514 (D. Md. 2010), aff’d sub nom. Orteck Int’l v. TransPacific Tire &
Wheel, Inc., 457 F. App’x 256 (4th Cir. 2011) (“[W]hile the ‘part performance exception’
may be used to prove a contract existed for goods for which payment was made, it does
not apply prospectively to ensure that goods will be delivered in the future or to establish
an exclusive right to buy those goods.”).
For all of the foregoing reasons, the Court finds that there is no genuine dispute of
material fact that Mamajek’s alleged oral agreement with MCI fails to satisfy the
requirements of Ohio’s statute of frauds, or the merchant and partial performance
exceptions, and is unenforceable as a matter of law against MCI or MCA. Even if
plaintiffs attempt to claim a separate oral agreement with MCA for the sale of off-spec
VME, and that Bushman’s email to Mamajek in July 2012 should be construed as a
confirmatory writing with respect to MCA, any such agreement would also fail to satisfy
all of the other requirements of Ohio’s statute of frauds, as well as the merchant and
partial performance exceptions, for the reasons previously discussed.
B. Claim two—Breach of covenant of good faith and fair dealing against MCA
In their second claim for relief, plaintiffs allege that MCA breached its implied
covenant of good faith and fair dealing under Mamajek’s oral contract with Tasaka
regarding the sale of off-spec VME. “Ohio does not recognize a standalone claim for
breach of the implied duty of good faith and fair dealing absent a valid breach of contract
claim.” Eclipse Res.-Ohio, LLC v. Madzia, No. 2:15-CV-177, 2016 WL 814958, at *15
(S.D. Ohio Mar. 2, 2016) (citing Wendy’s Int’l, Inc. v. Saverin, 337 F. App’x 471, 476
(6th Cir. 2009)). A duty of good faith “does not create an independent basis for a cause of
action.” Wendy’s, 337 F. App’x at 476-77 (citing Thomasville Furniture Indus., Inc. v.
JGR Inc., 3 F. App’x 467, 472 (6th Cir. 2001) (quoting Bolling v. Clevepak Corp., 484
N.E.2d 1367, 1376 (Ohio Ct. App. 1984))); see also Ogle v. BAC Home Loans Servicing
LP, 924 F. Supp. 2d 902, 915 (S.D. Ohio 2013) (citing Interstate Gas Supply, Inc. v.
Calex Corp., No. 04AP–980, 2006 WL 328679, at *20 (Ohio Ct. App. Feb. 14, 2006)
(“an allegation of a breach of the implied covenant of good faith cannot stand alone as a
separate cause of action from a breach of contract claim”)).
The Court has determined that MCA is entitled to summary judgment on
plaintiffs’ claim for breach of contract. In the absence of a valid breach of contract claim,
MCA is also entitled to summary judgment on plaintiffs’ second claim for relief.
Interstate Gas Supply, 2006 WL 328679, at *21 (“[I]nasmuch as we have already
determined that IGS did not breach its contract with Calex and Wooster, we find that
summary judgment was properly granted in favor of IGS on Calex and Wooster’s claim
of breach of good faith and fair dealing.”).
Plaintiffs alternatively argue that their second claim for relief is based upon the
duty of MCA to act honestly and in good faith to its customers, imposed by the Mitsui’s
governance documents, which exists separate and apart from any agreement regarding
off-spec VME. (Opp’n MCA SJ Mot. at 2693 (citing Doc. No. 99-9 at 2895 and 2902),
2713, 2176.) Plaintiffs advance the testimony of Vernier regarding the governance
document that plaintiffs argue imposes this duty on MCA. (Vernier Dep. at 478-79 (7779).) But there is no evidence that this document was in effect during the relevant time
periods. Even if it were, plaintiff has failed to cite any authority under Ohio law that a
claim for breach of the duty of good faith and fair dealing, in the absence of a contract,
can arise from the terms of a corporate governance document.
MCA is entitled to judgment on plaintiffs’ second claim for relief as a matter of
C. Claim three—Tortious interference by Bushman with MCA
In their third claim for relief, plaintiffs allege that Bushman tortiously interfered
with their contractual and business relationship with MCA.
1. Bushman entitled to summary judgment on tortious interference with
In Ohio, to establish a claim of tortious interference with a contract, a plaintiff
must show: “(1) the existence of a contract, (2) the wrongdoer’s knowledge of the
contract, (3) the wrongdoer’s intentional procurement of the contract’s breach, (4) the
lack of justification, and (5) resulting damages.” Fred Siegel Co., L.P.A. v. Arter &
Hadden, 707 N.E.2d 853, 858 (Ohio 1999) (citing Kenty v. Transamerica Premium Ins.
Co., 650 N.E.2d 863 (Ohio 1995)).
The Court has concluded that there is no enforceable contract between plaintiffs
and MCA. Thus, plaintiffs cannot prove an essential element of their claim, and Bushman
is entitled to summary judgment on plaintiffs’ claim against Bushman for tortious
interference with a contract with MCA. Celotex, 477 U.S. at 322-23.
2. Bushman entitled to summary judgment on tortious interference with
With respect to plaintiffs’ claim for tortious interference with their business
relationship with MCA,13
[u]nder Ohio law, the tort of business interference occurs when one who,
“without a privilege to do so, induces or otherwise purposely causes a
third party not to enter into, or continue, a business relationship with
another, or perform a contract with another, is liable to the other for the
harm caused thereby.” Juhasz v. Quik Shops, Inc., 55 Ohio App. 2d 51, 57,
379 N.E.2d 235, 238 (Ct. App. 9th Dist. 1977) (emphasis added). In order
for a person to interfere, the person must not be party to the [business
relationship]. Scanlon v. Gordon F. Stofer & Bros., Co., Nos. \ 1989 WL
69400 at *4 (Ohio Ct. App. 8th Dist. 1989);
AAA Installers v. Sears Holdings Corp., 764 F. Supp. 2d 931, 942 (S.D. Ohio 2011);
Wauseon Plaza Ltd. P’ship v. Wauseon Hardware Co., 807 N.E.2d 953, 962 (Ohio Ct.
App. 2004) (same) (citing A & B–Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. &
Constr. Trades Council, 651 N.E.2d 1283 (Ohio 1995)).
As the Court has previously noted, “[a]lthough Bushman’s actions (i.e., his
‘interference’) might have been privileged by virtue of his position with Mitsui, if he
instead acted outside the scope of his duties and in furtherance of his own interests, he
may be personally liable for tortious interference.” Source Assocs., 2016 WL 828785, at
*4 (citing Scanlon v. Gordon F. Stofer & Bros., Co., Nos. 55467/55472, 1989 WL 69400,
at * 10 (Ohio Ct. App. June 22, 1989) (“a corporate … employee of a contracting party,
while acting within the scope of his position or employment, is immune from suit for a
claim of tortious interference with a contract”) (emphasis added) (citations omitted)); see
also Geisy v. Kforce, Inc., No. 2:05–cv–366, 2005 WL 2806304, at *2 (S.D. Ohio Oct.
For the purpose of this analysis, the Court will assume a business relationship between plaintiffs and
26, 2005) (only “strangers to the business relationship,” not the employees of a party to
the relationship acting within their scope of employment, may be held liable for tortious
An act is within the scope of employment when the employee is engaged in an
activity that is logically related to the business of the employer. See The William Powell
Co. v. Nat’l Indem. Co., 141 F. Supp. 3d 773, 785 (S.D. Ohio 2015) (citing Theobald v.
University of Cincinnati, 857 N.E.2d 573, 577 (Ohio 2006)). Only where the employee’s
act has no relation to the employer’s business is an employee acting outside the scope of
his employment. See William Powell, 141 F. Supp. 3d at 785 (citations omitted).
In order to act outside the scope of employment, an employee’s acts must be
taken solely for his own benefit. Miller v. Wikel Mfg. Co., 545 N.E.2d 76, 80 (Ohio
1989); Gator Dev. Corp. v. VHH, Ltd., No. C-080193, 2009 WL 1027584, at *7 (Ohio
Ct. App. Apr. 17, 2009) (quoting Miller); West v. Visteon Corp., 367 F. Supp. 2d 1160,
1164 (N.D. Ohio 2005). Conduct initiated, at least in part, to further or promote the
employer’s business is within the scope of employment. Martin v. Cent. Ohio Transit
Auth., 590 N.E.2d 411, 417 (Ohio Ct. App. 1990).
Bushman argues that he is entitled to summary judgment because his alleged acts
of interference all took place while he was an employee of MCA and were privileged by
virtue of his employment. Plaintiffs claim that Bushman did not act as an employee of
MCA, but independently, and is therefore liable for tortiously interfering with plaintiffs’
business relationship with MCA.
There is no dispute that Bushman was the Director of Business Development at
MCA for approximately 24 years and during all relevant times at issue here, and that his
responsibilities included MCA’s off-spec VME business. Naoya Sakamoto (“Sakamoto”)
was Bushman’s direct supervisor. (Doc. No. 69-1 (Deposition of Gregory Bushman
[“Bushman Dep.”]) at 1219.) Shortly before June 13, 2013, Bushman met with Sakamoto
and told his supervisor that he was going to retire at the end of 2013, and recommended
to Sakamoto that Bushman become MCA’s outlet for off-spec VME in 2014 through his
On June 13, 2013, Bushman sent an email to Mamajek and Danforth informing
them that he was retiring at the end of the year and that his retirement would impact their
off-spec VME business: “the current business route through Source Associates and
Conrad A. Mamajek, Inc. will not be continued. Mitsui has decided that the last deliveries
will be made in December of this year.” (Mamajek Dep at 1050-51; Doc. No. 100-19.)
There is no dispute that when Bushman sent this email, he did not have authority from
MCA to terminate plaintiffs as a customer. Indeed, Bushman’s email had no effect on the
off-spec VME business relationship between MCA and plaintiffs because, at that time,
“MCA management had not yet considered or decided whether to switch the off-spec
VME business from Source to NXT.” (Bushman Dep. at 1323; Fujimoto Dec. ¶ 19.)
In September 2013, Bushman made a presentation to his superiors regarding the
direction of MCA’s off-spec VME business after his retirement and the reasons for his
recommendation that the off-spec VME business be directed to NXT. (Bushman Dep. at
1222-23 (51-52).) The presentation was attended by Bushman’s supervisor, Sakamoto,
and by Mr. Kaide, Mr. Hayashida, and Ms. Ward. (Doc. No. 66-1 (Deposition of Koji
[“Fujimoto Dep.”]) at 744 (24).) When Bushman made his presentation, he was an MCA
employee and was responsible for its VME business, as he had been for more than two
There is no dispute that Bushman told MCA that Mamajek desired to discontinue
the off-spec VME business, and that there were health issues and strained relationships
with respect to Mamajek and Danforth.14 (Bushman Dep. at 1223-24 (52-53), 1251-53
(80-83), 1333 (162)); Fujimoto Dep. at 744 (23-25) and 754 (63); Vernier Dep. at 481
(87-88).) MCA recognized that Bushman had a conflict of interest with respect to the offspec VME business because of his ownership interest in NXT, and that he must be
excluded from MCA’s decision regarding the direction of that business following
Bushman’s retirement. (Fujimoto Dep. at 748 (39-40).)
When MCA made its decision to direct the off-spec VME business to NXT
beginning in 2014, Sakamoto, not Bushman, informed plaintiffs by letter dated October
28, 2013. (Doc. No. 93-1.) Plaintiffs have advanced no evidence to rebut MCA’s
evidence that its decision to direct off-spec VME sales to NXT was made independent of
Bushman and in MCA’s own economic interest, or offered any evidence that Bushman
coerced or intimidated MCA with respect to its decision. (Fujimoto Dep. at 754-55 (6566).)
“Whether an employee was acting within the scope of his employment is a
question of law, not fact, made in accordance with the law of the state where the conduct
The parties dispute whether plaintiffs desired to discontinue their business, but do not appear to dispute
that plaintiffs had health issues at the time Bushman made his presentation. Mamajek was not involved in
the off-spec business for the first six months of 2013 due to health issues. (Mamajek Dep. 905-06 (19-20);
Danforth Dep. at 626 (167).) Danforth had issues with his eyesight in the last half of 2013 and into 2014,
and had two surgeries within a month on his left eye. (Danforth Dep. at 633 (196-97), 638-39 (217-18).)
That said, whether plaintiffs did or did not desire to discontinue their business is not relevant to the issue of
whether Bushman was acting in the scope of his employment with respect to his recommendation to
Sakamoto and others that MCA direct its off-spec VME business to NXT.
occurred.” RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th Cir.
1996). The parties apply Ohio law to their arguments on summary judgment.15
Based on the undisputed record, the Court finds as a matter of law that Bushman
did not act outside the scope of his employment with respect to his actions and
recommendation to MCA concerning the direction of its off-spec VME business
following his retirement. MCA was in the business of selling off-spec VME. At all
relevant times, Bushman was employed by MCA and responsible for its off-spec VME
business. His actions and recommendation regarding the direction of MCA’s off-spec
VME business fell within his area of responsibility and were logically related to MCA’s
business interests. William Powell, 141 F. Supp. 3d at 785.
The fact that Bushman himself would benefit if MCA chose to follow his
recommendation is insufficient to move his actions outside the scope of his employment.
Hastings v. J.E. Scott Corp., No. 2003 CA 32, 2004 WL 759658, at *4 (Ohio Ct. App.
Apr. 9, 2004) (“[A]lthough Ronald Scott’s actions may have benefitted him individually,
those actions were also taken for the benefit of the corporation.”) (citing Miller, 545
N.E.2d 76 (Ohio 1989)). Bushman’s motives regarding his recommendation to MCA also
do not remove his actions from the scope of his employment as director of MCA’s VME
business. See Bishop v. Children’s Ctr. for Developmental Enrichment, No. 2:08-CV766, 2011 WL 3443518, at *14 (S.D. Ohio Aug. 8, 2011) (defendant CEO’s personal
animosity against plaintiff does not take expulsion of plaintiff’s child outside of the scope
The facts are not clear as to Bushman’s location when he engaged in the alleged conduct at issue here.
Even if the Court applied New York law, however, the outcome of the Court’s analysis would be the same.
See Zeranti v. United States, 167 F. Supp. 3d 465, 469 (W.D.N.Y. 2016) (an employees’ conduct falls
outside the scope of his employment if done “solely for personal motives unrelated to the furtherance of the
employe[r]’s business.”) (citation omitted).
of her job duties). “Where . . . the act complained of is within the scope of a defendant’s
duties, a cause of action in tort or monetary damages does not lie. Nor can liability be
predicated simply upon the characterization of such conduct as malicious.” See Anderson
v. Minter, 291 N.E.2d 457, 461 (1972) (citations omitted); RMI Titanium, 78 F.3d at 1143
(an employee does not act outside the scope of his employment simply because his act is
intentional or malicious) (citing Henson v. NASA, 14 F.3d 1143, 1147 (6th Cir. 1994)).
Here, it cannot be said that Bushman’s actions had no relation to MCA’s off-spec VME
business, or that his actions did not, at least in part, further MCA’s business interests.
William Powell, 141 F. Supp. 3d at 785; Martin, 590 N.E.2d at 417; cf. Groob v.
KeyBank, 843 N.E.2d 1170, 1177–78 (Ohio 2006) (KeyBank not liable for tortious act of
employee acting outside the scope of her employment where employee took loan
information of bank customer who was denied a loan to purchase a business, and used
that information to purchase the business for herself).
The Court concludes as a matter of law that Bushman was acting within the scope
of his employment with respect to his actions related MCA’s off-spec VME business.
Thus, Bushman cannot be individually liable for these actions. In addition, there can be
no claim for tortious interference against Bushman for actions taken in the scope of his
employment because, acting as MCA’s employee, MCA cannot interfere with its own
business relationship with plaintiffs. See AAA Installers, 764 F. Supp. 2d at 942 (“Sears
and AAA are parties to the contract. It would not be possible for Sears to wrongly
interfere with its own contract with AAA.”); see also Lundeen v. Smith-Hoke, No. 15AP36, 2015 WL 8196506, at *9 (Ohio Ct. App. Dec. 8, 2015) (citing Geisy, 2005 WL
2806304, at *2 (it is only “strangers to the business relationship,” not the employees of a
party to the relationship acting within their scope of employment, that may be held liable
for tortious interference)).
Accordingly, Bushman is entitled to summary judgment on plaintiffs’ claim that
he is liable for tortious interference of plaintiffs’ business relationship with MCA.
D. Claim four—Tortious interference by MCA with Brindle and Complex
In their fourth claim for relief, plaintiffs allege that MCA tortiously interfered
with their contractual and business relationships with Brindle and Complex.
1. MCA entitled to summary judgment on tortious interference with contract
The Court previously dismissed claim four as to Bushman and Breon, finding that
plaintiffs failed to allege any factual support for their assertion in the first amended
complaint that plaintiffs’ had a contractual arrangement with Brindle and Complex.
Source Assocs., 2016 WL 828785, at *4. On summary judgment, MCA offers the
deposition of Mamajek, who testified that he did not have a contract with Complex or
Brindle to purchase off-spec VME in any amount, and that each sale was individual.
(Mamajek Dep. at 965-67.) Source also had no agreement with Bridle or Complex that
required them to purchase off-spec VME from plaintiffs, or prevented them approaching
MCA directly to purchase off-spec VME. (Danforth Dep. at 598 (56-57).)
The existence of a contract is the first element of a claim for tortious interference
with contract. There is no genuine dispute of material fact that plaintiffs did not have a
contract with either Brindle or Complex to purchase off-spec VME. Thus, plaintiffs
cannot prove an essential element of their claim for tortious interference with contract,
and MCA is entitled to summary judgment. Celotex, 477 U.S. at 322-23.
2. MCA entitled to summary judgment on tortious interference with business
The elements for establishing tortious interference with a business relationship are
(1) a business relationship; (2) knowledge of the relationship by the tortfeasor; (3) an
intentional and improper act by the tortfeasor terminating a business relationship; (4) the
lack of privilege on the part of the tortfeasor; and (5) resulting damages. Hahn v. Rauch,
602 F. Supp. 2d 895, 906 (N.D. Ohio 2008) (citing Brookeside Ambulance, Inc. v. Walker
Ambulance Serv., 678 N.E.2d 248, 252 (Ohio Ct. App. 1996)).
MCA argues on summary judgment that, because the Court dismissed plaintiffs’
claims for tortious interference with business relationships with Complex and Brindle as
against Breon and Bushman, there is no basis upon which to hold MCA liable for alleged
tortious interference. (MCA SJ Mot. at 2441-42.) In addition, MCA argues that only
Source can assert this claim because CAM had no business relationship with Brindle and
Complex—it was Source that processed the orders, paid for the off-spec VME, then
resold the product to Brindle and Complex. Mamajek, not CAM, negotiated pricing with
Brindle and Complex, and Mamajek is not a plaintiff in this case.16 (MCA SJ Mot. at
2442.) Finally, MCA argues that summary judgment is appropriate because only
improper interference with a business relationship is actionable, and there is no evidence
of improper interference by MCA. (MCA SJ Mot. at 2442-43.)
With respect to MCA’s last argument, the parties agree that there can be no claim
for tortious interference with a business relationship unless the interference is improper.
Plaintiffs’ opposition does not address MCA’s first or second arguments. With respect to the second,
Mamajek was arguably acting as CAM’s agent, however, the Court will not address this issue because it is
unnecessary to resolve MCA’s motion as to this claim.
(MCA SJ Mot. at 2442-43; Opp’n MCA SJ Mot. at 2721).17 “Significant to the question
of the nature of the actor’s conduct is whether the actor engaged in coercive or
intimidating conduct.” Eastside Lincoln Mercury, Inc. v. Ford Motor Co., No. C-1-01567, 2004 WL 6033074, at *8 (S.D. Ohio July 15, 2004) (citing Sancap Abrasives Corp.
v. Swiss Indus. Abrasives Grp., 68 F. Supp. 2d 853, 861 (N.D. Ohio 1999) (citing Kand
Med. v. Freund Med. Prods., 963 F.2d 125, 128 (6th Cir. 1992))). In addition, defendant
must act intentionally and with malice. Bertek Sys., Inc. v. Lexmark Int’l, Inc., No. 1:04CV-00700, 2005 WL 3503065, at *11 (S.D. Ohio Dec. 21, 2005) (“As to [plaintiff’s]
claim of tortious interference with a business relationship, the Court need not analyze the
issue past the requirement that the defendant acted with malice. [Plaintiff] has not met its
burden in demonstrating that a genuine issue of material fact exists concerning malice.”).
MCA argues that it did not act improperly in terminating off-spec VME sales to
plaintiffs—which effectively ended plaintiffs’ business relationship with Brindle and
Complex—and directing those sales to NXT. MCA advances evidence that this action
was taken based upon information from Bushman raising concerns for the future of offspec VME sales due to Mamajek’s health and desire to retire, and strained relationships
with Danforth. (See Bushman Dep. at 1223-24 (52-53), 1251-53 (80-83), 1333 (162));
in determining whether an actor has acted improperly in intentionally interfering with a
contract or prospective contract of another, consideration should be given to the
following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the
interests of the other with which the actor’s conduct interferes, (d) the interests sought to
be advanced by the actor, (e) the social interests in protecting the freedom of action of the
actor and the contractual interests of the other, (f) the proximity or remoteness of the
actor’s conduct to the interference, and (g) the relations between the parties.
Fred Siegel Co., 707 N.E.2d at 860; see also Marlite, Inc. v. Canas, No. 5:09CV1401, 2009 WL 7272686,
at *8 (N.D. Ohio July 22, 2009) (same) (citing Dryden v. Cincinnati Bell Tel., 734 N.E.2d 409, 414 (Ohio
Ct. App. 1999) (citing RESTATEMENT OF THE LAW (SECOND), TORTS § 767)); Sancap, 68 F. Supp.
2d at 861 (same) (quoting Kand, 963 F.2d at 128).
Fujimoto Dep. at 754 (63); Vernier Dep. at 481 (87-88).) MCA understood from
Bushman that plaintiffs were going to discontinue their purchase of off-spec VME.
(Fujimoto Dep. at 744 (23-24).) According to Mamajek, the off-spec VME business was
grounded in his relationship with Tasaka and, if he retired, the off-spec VME relationship
with Source “would probably dry up.” (Mamajek Dep. at 1115.) In addition, Bushman,
who was planning to retire, raised concerns about the ability of his successor to manage
the off-spec VME relationship with plaintiffs, and recommended to MCA that the offspec VME business instead be routed through NXT. (Bushman Dep. at 1387.)
MCA recognized that Bushman had a conflict of interest regarding the direction
of the off-spec VME business after he retired, and that, in order for MCA to make an
independent decision in its own economic interest, Bushman should be excluded from
that process. (Fujumoto Dep. at 748 (39-40), 754-44 (65-66).) Ultimately, MCA decided
it was in its best economic interest to direct the off-spec VME business from plaintiffs to
NXT. (Id. at 755-56 (65-70).)
Plaintiffs do not dispute that Bushman made these representations to MCA
regarding the direction of the off-spec VME business after his retirement, or that MCA
excluded Bushman from the decision-making process because of a conflict of interest.
Plaintiffs’ dispute the underlying facts presented by Bushman to MCA and contend that
MCA should have been suspicious of the facts Bushman presented to them, and should
have permitted Source and CAM to make their own presentation. Plaintiffs, however,
have failed to rebut the evidence advanced by MCA that it trusted and relied upon
Bushman based upon his longtime employment with MCA and oversight of the off-spec
VME business, or offer any evidence that MCA intentionally failed to verify Bushman’s
statements regarding Source and CAM in order to interfere with plaintiffs’ relationship
with Brindle and Complex.18 (Fujimoto Dep. at 748 (40), 752-53 (57-56) (MCA trusted
Bushman’s presentation); Vernier Dep. at 482 (89-90) (we had no reason not to trust
Plaintiffs also failed to rebut the evidence advanced by MCA that its decision to
direct its VME business to NXT rather than plaintiffs was made in order to further its
own economic interest. See A-1 Credit & Assur. Co. v. Trans Union Credit Info. Co., 678
F. Supp. 1147 (E.D. Pa. 1988) (unilateral decision to do business with another entity is
not tortious interference with a business relationship). Nor is there any evidence from
which a reasonable jury could conclude that MCA’s decision was motivated by a desire
to harm plaintiffs’ relationship with Brindle and Complex. Sancap, 68 F. Supp. 2d at 861
(granting summary judgment where there was no evidence that defendant intended to
injure plaintiff “rather than simply further its own economic interests.”) Plaintiffs’
business relationship with Brindle and Complex ended as a consequence of MCA’s
decision to redirect the VME business to NXT in service of its own economic interest.
MCA’s knowledge of this consequence, however, does not convert its business decision
into tortious interference. Restatement (Second) of Torts § 767 cmt. d (1979) (“[I]f there
is no desire at all to accomplish the interference and it is brought about only as a
necessary consequence of the conduct of the actor engaged in for an entirely different
purpose, his knowledge of this makes the interference intentional, but the factor of
motive carries little weight toward producing a determination that the interference was
Even if MCA were negligent in this regard, such negligence would be insufficient to establish a claim for
tortious interference with plaintiffs’ business relationship. Wauseon Plaza, 807 N.E.2d at 963 (interference
must be intentional because Ohio law does not recognize negligent interference with a business
relationship) (citation omitted); Aetna Cas. & Sur. Co. v. Leahey Constr. Co., 22 F. Supp. 2d 695, 705
(N.D. Ohio 1998) (same) (citations omitted).
improper.”); see also Excel Energy, Inc. v. Cannelton Sales Co., 246 F. App x 953, 967
(6th Cir. 2007) (quoting ATC Distrib. Group, Inc. v. Whatever It Takes Transmissions &
Parts, Inc., 402 F.3d 700, 717 (6th Cir. 2005) (“‘[S]imply attempting to advance one’s
own legitimate economic interests at the expense of another’s interests does not constitute
malice.’”) (applying Kentucky law, where interference cases turn almost entirely on
defendant’s motive, purpose, and means to determine if conduct was intentional and
For all of the foregoing reasons, the Court finds that there is no genuine dispute of
material fact from which a reasonable jury could reasonably find that MCA tortiously
interfered with plaintiffs’ business relationship with Brindle and Complex, and MCA is
entitled to judgment as a matter of law.
E. Claim five—Unjust enrichment
Claim five alleges unjust enrichment against all defendants.19 The elements of
unjust enrichment, a quasi-contractual claim, are: (1) a benefit conferred by a plaintiff
upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the
benefit by the defendant under circumstances where it would be unjust to do so without
payment. R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 878, 898 (N.D. Ohio
2009) (citing Hambleton v. R.G. Barry Corp., 465 N.E.2d 1298, 1302 (Ohio 1984)).
1. MCA entitled to summary judgment
Even though the Court has concluded that MCA is entitled to summary judgment
on the first claim for relief for breach of contract, plaintiffs may still bring a claim for
As a remedy, plaintiffs seek the disgorgement of profits. (FAC ¶ 47.) Even were they to prevail on this
claim, plaintiffs are not entitled to such damages. “‘Recovery under unjust enrichment is designed to
compensate the plaintiff for the benefit he has conferred upon another, not to compensate him for a loss
suffered.’” Kline v. Mortg. Elec. Sec. Sys., 154 F. Supp. 3d 567, 595 (S.D. Ohio 2015) (quoting Jones v.
Jones, 903 N.E.2d 329, 337 (Ohio Ct. App. 2008)).
unjust enrichment. MVB Mortg. Corp. v. F.D.I.C., No. 2:08-CV-771, 2009 WL 3259413,
at *4 (S.D. Ohio Oct. 6, 2009) (even if an express contract is unenforceable as a result of
the operation of a statute of frauds, a plaintiff may proceed on a claim for unjust
enrichment) (citing Hummel v. Hummel, 14 N.E.2d 923 (Ohio 1938)). Plaintiffs allege
that MCA benefitted from its refusal to sell off-spec VME to plaintiffs and misuse of
plaintiffs’ information, thus depriving plaintiffs of their business and profits. (FAC ¶¶ 4344.)
The proper measure of damages in an unjust enrichment claim is the value of the
services provided to defendant—any damages due would be the amount of benefit
received by MCA. Alexander v. Motorists Mut. Ins. Co., No. C-110836, 2012 WL
3711299, at *4 (Ohio Ct. App. Aug. 29, 2012) (citations omitted); Meridien Mktg. Grp.,
Inc. v. J & E Bldg. Grp., Inc., No, 2011-CA-02, 2011 WL 4424834, at *6 (Ohio Ct. App.
Sept. 23, 2011) (citation omitted).
MCA argues that it has not been unjustly enriched by directing sales of off-spec
VME to NXT rather than plaintiffs because MCA charges NXT the same price for offspec VME that plaintiffs paid.20 (Fujimoto Dec. ¶ 21; MCA SJ Mot. at 2446 (citing
Alexander, 2012 WL 3711299, at *4 (defendant would have received premiums for
insurance regardless of which agent was servicing the account).)
Plaintiffs contend that MCA’s argument misses the point. According to plaintiffs,
the benefit conferred upon MCA goes back to 1998, when Mamajek and Tasaka made
their agreement and plaintiffs thereafter developed a market for off-spec VME. Plaintiffs
argue that, but for their efforts to develop the off-spec VME market, the Mitsui Group’s
MCA purchases both prime and off spec VME from MCI or Mitsui Elastomers Singapore Pte Ltd
(“MELS”) and sells it to North American companies. (Fujimoto Dec. ¶ 10.)
off-spec VME would still be sitting in warehouses and MCA would not have earned
3.5% for the administration of MCI’s agreement with Mamajek. (Opp’n MCA SJ Mot. at
2723-24.) While that may be true, the fact remains that plaintiffs developed the off-spec
VME market for their own economic interests, and plaintiffs acknowledge that their
business “was a very, very substantial, profitable business.” (Danforth Dep. at 616 (128).)
Indeed, the annual income for each plaintiff from the off-spec VME sales was
approximately $500,000.00. (Danforth Dep. at 644 (238-40).) There is no unjust
enrichment under these facts.
The plaintiff’s theory in LightStyles, Ltd. ex rel. Haller v. Marvin Lumber &
Cedar Co., No. 1:13-CV-1510, 2015 WL 4078807 (M.D. Pa. July 6, 2015) was similar to
the plaintiff’s theory herein, and that case illustrates the flaw in plaintiffs’ claim. In
LightStyles, defendants terminated plaintiff’s distributorship and took over plaintiff’s
sales force and dealer network. LightStyles argued that defendant was unjustly enriched
by the value of the distribution network that it had developed. LightStyles, 2015 WL
4078807, at *14. Applying Pennsylvania law (where the elements of unjust enrichment
are virtually identical to Ohio law)21 the court in LightStyles found that defendant was
entitled to summary judgment on LightStyles’ unjust enrichment claim because it had
acted to advance its own interest and received benefit from its business relationship with
“Under Pennsylvania law, unjust enrichment has the following elements: (1) plaintiff conferred a benefit
on the defendant; (2) the defendant appreciated the benefit; and (3) acceptance and retention by the
defendant of the benefits, under the circumstances, would make it inequitable for the defendant to retain the
benefit without paying for the value of the benefit.” LightStyles, Ltd. ex rel. Haller v. Marvin Lumber &
Cedar Co., No. 1:13-CV-1510, 2015 WL 4078807, at *14 (M.D. Pa. July 6, 2015) (internal quotation
marks and citation omitted).
Also instructive is Allen v. Ford Motor Co., 8 F. Supp. 2d 702 (N.D. Ohio 1998),
aff’d, 188 F.3d 506 (6th Cir. 1999). Applying Ohio law, the court in Allen held that
defendant was entitled to summary judgment on plaintiff’s claim for unjust enrichment
where plaintiff, a prospective purchaser of a dealership, failed to establish that defendant
was unjustly enriched when plaintiff managed the dealership for six months, and the
dealership’s value increased during that time, because plaintiff was paid a salary and
received all of the profits of the dealership while he managed it. Id. at 707.
In this case, plaintiffs developed the off-spec VME to advance their own
economic interests, and profited handsomely from their business relationship with MCA
for approximately fifteen (15) years. There is no evidence from which a reasonable jury
could conclude that MCA was unjustly enriched by plaintiffs’ development of a
profitable off-spec VME market for their own benefit. MCA is entitled to summary
judgment on plaintiffs’ claim for unjust enrichment.
2. Bushman and Breon entitled to summary judgment
Plaintiffs claim they invested a great deal of time and effort in the development of
their off-spec VME business, that Bushman and Breon unjustly benefitted from the use of
plaintiffs’ information and MCA’s decision to terminate sales of off-spec VME to
plaintiffs. (FAC ¶44.) Bushman and Breon argue that they are entitled to summary
judgment on three specific grounds: (1) plaintiffs’ unjust enrichment claim is preempted
by OUTSA; (2) plaintiffs’ customer and pricing information is not proprietary or
confidential; and (3) plaintiffs’ unjust enrichment claim cannot be based upon tortious
interference with business or contract.22 (B&B SJ Mot. at 2658-60.) In opposition,
Plaintiffs do not respond to this argument in their opposition.
plaintiffs argue that their unjust enrichment claim is not preempted because Bushman and
Breon’s use of plaintiffs’ customer and pricing information is only “incidental” to their
claim, which is that Bushman and Breon “orchestrated a scheme to take the off-spec
VME business and customers” developed by plaintiffs through misrepresentation, deceit,
“and concealment practiced against Plaintiffs, and their [customers], and MCA (at least
initially), and violations of [Mitsui’s code of conduct].”23 (Opp’n B&B SJ Mot. at 301819.)
The Court addresses the parties’ OUTSA preemption arguments in detail later in
this opinion, but to the extent that plaintiffs’ unjust enrichment claim is based upon
plaintiffs’ alleged confidential and proprietary information, the claim is preempted and
defendants’ are entitled to summary judgment on that basis. (See section G.)
To the extent that plaintiffs’ unjust enrichment claim is not preempted by
OUTSA, Bushman and Breon are nevertheless entitled to judgment for the same reasons
that MCA is entitled to judgment on this claim. It is undisputed that plaintiffs developed a
successful off-spec VME business for their own benefit, not for the benefit of Bushman
and Breon, and reaped the benefits of their efforts for fifteen (15) years. See LightStyles
and Allen, supra. There is no evidence that plaintiffs developed the off-spec VME
business for Bushman and Breon as a result of defendants’ fraud, misrepresentation, or
bad faith, who then wrongfully failed to compensate plaintiffs for their efforts. See
In reply, Bushman and Breon object to what they characterize as plaintiffs’ avoidance of their
preemption argument by attempting to amend the complaint through their opposition brief with respect to
the factual basis for their unjust enrichment claim. (B&B SJ Reply at 3385.) The Court notes that paragraph
42 in plaintiffs’ fifth claim incorporates all of the preceding allegations in the complaint, which include
allegations of a scheme to intentionally and maliciously deprive plaintiffs’ of their business and profits.
(See e.g. FAC ¶¶ 18, 19.) The Court, however, need not rule on the merits of defendants’ argument that
plaintiffs’ attempted amendment is impermissible because defendants are nevertheless entitled to summary
judgment on plaintiffs’ unjust enrichment claim.
Schlaegel v. Howell, 42 N.E.3d 771, 782 (Ohio Ct. App. 2015) (benefit conferred by
plaintiff must be in response to fraud, misrepresentation, or bad faith of defendant)
(quoting Superior Piping Contrs., Inc. v. Reilly Industries, Inc., No. 90751, 2008 WL
4356107, at *5 (Ohio Ct. App. Sept. 25, 2008)).
Bushman and Breon are entitled to summary judgment on plaintiffs’ claim for
F. Claim six—Civil conspiracy
“In Ohio, a civil conspiracy consists of the following: (1) a malicious
combination; (2) two or more persons; (3) injury to person or property;
and (4) existence of an unlawful act independent from the actual
conspiracy.” Universal Coach, Inc. v. New York City Transit Auth., Inc.,
90 Ohio App.3d 284, 629 N.E.2d 28, 33 (1993) (citations omitted). A
plaintiff need not demonstrate an explicit agreement but only an
understanding or common design between the parties to commit an
improper act. Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481,
496 (1996) (citations omitted). “The ultimate fact of conspiracy is solely a
question for the jury, unless the court can say, as a matter of law, that there
is no proof tending to establish a conspiracy.” LeFort v. Century 21–
Maitland Realty & Co., 32 Ohio St.3d 121, 512 N.E.2d 640, 645 (1987)
Lee v. Countrywide Home Loans, Inc., 692 F.3d 442, 446 (6th Cir. 2012) (emphasis
An essential element of a civil conspiracy claim is the existence of an unlawful
act independent of the conspiracy. Plaintiffs have failed to identify a viable unlawful act
upon which to base their conspiracy claim. Having failed to establish this essential
element, MCA, Bushman and Breon, are entitled to summary judgment on plaintiffs’
civil conspiracy claim. Celotex, 477 U.S. at 322-23.
G. Ohio Uniform Trade Secrets Act
Defendants argue on summary judgment that, to the extent plaintiffs’ tort and
quasi-contract claims rely on the alleged wrongful use of plaintiffs’ confidential and
proprietary customer and pricing information, those claims are preempted by OUTSA.
Ohio Rev. Code. § 1333.61, et seq. OUTSA preempts causes of action for
misappropriation of trade secrets, and causes of action that are based in some way on the
misappropriation of trade secrets. Stolle Mach. Co., LLC v. RAM Precision Indus., 605 F.
App’x 473, 484 (6th Cir. 2015). This is true whether or not the misappropriated
information rises to the level of a trade secret. Miami Valley Mobile Health Servs., Inc. v.
ExamOne Worldwide, Inc., 852 F. Supp. 2d 925, 940 (S.D. Ohio 2012). OUTSA does not
preempt claims for contractual remedies (whether or not based on misappropriation of a
trade secret), civil remedies that are not based on misappropriation of a trade secret, and
criminal remedies. Allied Erecting & Dismantling Co. v. Genesis Equip. & Mfg., Inc.,
649 F. Supp. 2d 702, 720 (N.D. Ohio 2009) (citing Ohio Rev. Code § 1333.67).
In opposing defendants’ preemption arguments, plaintiffs do not dispute that, to
the extent their tort and unjust enrichment claims are based on plaintiffs’ alleged
confidential and proprietary information, those claims are preempted by OUTSA.
Plaintiffs argue, however, that plaintiffs’ customer and pricing information are
“incidental” to the claim. (Opp’n MCA SJ Mot. at 2717; Opp’n B&B SJ Mot. at 3018.)
According to plaintiffs, the evidence developed in discovery shows that the facts
underlying plaintiffs’ common law claims are that Bushman and Breon orchestrated a
scheme to take over the off-spec VME business and customers developed by plaintiffs,
using misrepresentation, deceit, and concealment against plaintiffs and their customers.
(Opp’n MCA SJ Mot. at 2717-18; Opp’n B&B SJ Mot. at 3018-19.)
When common law claims are supported both by factual allegations that touch
upon misappropriation of trade secrets as well as other independent allegations, courts
have adopted a “partial preemption” approach to such a hybrid claim. See Source Assocs.,
2016 WL 828785, at *7 (citing Office Depot, 821 F. Supp. 2d 912, 920-21 (N.D. Ohio
2011)). Applying this approach, to the extent the plaintiffs’ tortious interference and
unjust enrichment claims are based upon the allegation that defendants used plaintiffs’
customer and pricing information without permission or authorization,24 those claims are
preempted by OUTSA, and defendants’ are entitled to summary judgment on those
claims on this additional basis. To the extent that plaintiffs’ tortious interference and
unjust enrichment claims are based upon a factual basis independent from any
misappropriation allegation, those claims are not preempted by OUTSA, but defendants
are nevertheless entitled to summary judgment on those claims for the reasons previously
Plaintiffs do not outright make a claim in the first amended complaint for misappropriation of trade
For all of the foregoing reasons, the motions for summary judgment of defendants
MCA, Bushman, and Breon are granted. All of plaintiffs’ remaining claims are hereby
dismissed. This case is closed.
IT IS SO ORDERED.
Dated: June 16, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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