Thornapple Associate, Inc. v. Izadpanah
Filing
44
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 09/10/14. (pmil, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
THORNAPPLE ASSOCIATES, INC.,
Plaintiff,
)
)
)
)
)
)
)
)
)
v.
ALLEN IZADPANAH,
Defendant.
M E M O R A N D U M
1:14cv767(JCC/TRJ)
O P I N I O N
This matter is before the Court on Plaintiff
Thornapple Associates, Inc.’s (“Plaintiff” or “Thornapple”)
Motion for Summary Judgment.
[Dkt. 25.]
For the reasons set
forth below, the Court will deny Plaintiff’s motion.
I. Background
It is undisputed that on or about May 2, 2013, the
parties entered into an Expert Retainer Agreement (the
“Agreement”), wherein Defendant Allen Izadpanah (“Defendant”)
agreed to pay Plaintiff for expert witness services on an hourly
basis according to set billing rates.
(Pl.’s Mem. in Supp.
[Dkt. 26] at 1; Def.’s Opp’n [Dkt. 29] at 3.)
On October 7,
2013, Plaintiff sent Defendant an invoice for services and
expenses totaling $162,110.46.
(Def.’s Opp’n at 3.)
Defendant
paid approximately $38,000.00 toward this balance but has
refused to pay the rest.
(Pl.’s Mem. in Supp. at 2.)
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Plaintiff
thus initiated this action seeking to collect the remainder due
under the October 2013 invoice.
Plaintiff’s Complaint asserts
four different claims: (1) breach of contract; (2) account
stated; (3) quantum meruit; and (4) unjust enrichment.
(Compl.
[Dkt. 1] at 4-5.)
Plaintiff has now moved for summary judgment, claiming
[t]here is no dispute of material fact that
Thornapple provided services and incurred
expenses
pursuant
to
the
Agreement
to
Defendant,
invoiced
Defendant
for
those
services and expenses, and has not been paid
in full for those services and expenses.
Consequently,
this
Court
should
enter
summary judgment in favor of Thornapple and
against
Defendant
in
the
amount
of
$124,110.46,
plus
interest,
costs,
and
attorneys fees.
(Pl.’s Mem. in Supp. at 3.)
Plaintiff’s memorandum in support
of its motion can only be described as brief.
It totals three
pages, and outside of the language cited above, it is devoid of
any analysis as to how the uncontested facts entitle Plaintiff
to judgment as to each of the asserted claims.
(Id.)
Plaintiff
does not cite a single case besides those discussing the general
standards for summary judgment.
(Id. at 2-3.)
Defendant opposes Plaintiff’s motion primarily on
grounds that material issues of fact exist as to whether he is
required to pay for these services since Plaintiff failed to
send invoices in a timely manner and the October 2013 invoice is
well outside the estimate Plaintiff provided prior to executing
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the Agreement.
(Def.’s Opp’n at 6-11.)
Defendant also argues
that Plaintiff’s motion is premature since “[n]o discovery
responses are yet due, no depositions have occurred, [and] no
experts have been designated.”
(Id. at 6.)
Defendant
continues, “Plaintiff provided highly technical and specialized
services to Defendant of the type and nature that normally
requires an expert witness to establish the standard of care and
reasonable value of said services.”
(Id.)
Defendant then
claims, without any case citation, that “[a]ll hourly contracts
such as [the Agreement] are tempered by the requirement that the
hours incurred must be reasonable . . .
In this case, Defendant
denies the reasonableness of the invoices on several grounds[.]”
(Id. at 9.)
Defendant goes on to make several additional
arguments, which the Court need not address here given the
ruling below.
Having been fully briefed and argued, Plaintiff’s
Motion for Summary Judgment is now before the Court.
II. Standard of Review
The summary judgment standard is too well-settled to
require explanation here.
In essence, summary judgment is
appropriate only where, on the basis of undisputed material
facts, the moving party is entitled to judgment as a matter of
law.
See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The moving party always bears the initial
3
burden of “informing the district court of the basis for its
motion,” and identifying the matter “it believes demonstrate[s]
the absence of a genuine issue of material fact.”
U.S. at 323.
Celotex, 477
Thereafter, the burden shifts to the non-moving
party to demonstrate that genuine issues of material fact exist
that must be resolved at trial.
See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Importantly, the non-moving
party must show more than some metaphysical doubt as to the
material facts.
“[T]he non-moving party ‘may not rest upon mere
allegation or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for
trial.’”
Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir. 1995)
(quoting Anderson, 477 U.S. at 256).
In reviewing the record on summary judgment, the Court
“must draw any inferences in the light most favorable to the
non-movant” and “determine whether the record taken as a whole
could lead a reasonable trier of fact to find for the nonmovant.”
Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253,
1259 (4th Cir. 1991) (citations omitted).
“[A]t the summary
judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”
at 249.
Anderson, 477 U.S.
Where there is conflicting evidence, the court must
credit the evidence of both sides and acknowledge that there is
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a genuine issue of material fact that cannot be resolved by
summary judgment.
See Tolan v. Cotton, 134 S. Ct. 1861, 1868-69
(2014) (“By weighing the evidence and reaching factual
inferences contrary to [the non-movant’s] competent evidence,
the court below neglected to adhere to the fundamental principle
that at the summary judgment stage, reasonable inferences should
be drawn in favor of the nonmoving party.”)
III. Analysis
It requires little analysis to conclude that Plaintiff
is not entitled to summary judgment at this juncture.
As noted,
it was Plaintiff’s burden to present the issues in a manner that
the Court could conclusively decide that judgment in its favor
is proper.
regard.
Plaintiff’s brief falls woefully short in this
First, Plaintiff has failed to identify the claim (or
claims) for which it seeks judgment.
Plaintiff, without
identifying any particular cause of action, requests “summary
judgment in favor of Thornapple and against Defendant in the
amount of $124,110.46, plus interest, costs, and attorneys
fees.”
(Pl.’s Mem. in Supp. at 3.)
While typically the Court
could construe such a request as a demand for judgment on all
counts, this assumption would prove inappropriate here given two
of Plaintiff’s claims appear mutually exclusive.
See Harrell v.
Colonial Holdings, Inc., 923 F. Supp. 2d 813, 826 (E.D. Va.
2013) (affirming that a plaintiff “cannot simultaneously obtain
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relief for unjust enrichment and breach of contract”); Va. Elec.
& Power Co. v. Broe Growth Capital LLC, No. 3:07cv224, 2007 WL
2071726, at *2 (E.D. Va. July 17, 2007) (“[I]f a court finds
that an express contract exists between the parties, either by
determination of the court or stipulation of the parties, the
equitable remedy of unjust enrichment is unavailable.”).
Even more problematic is Plaintiff’s failure to
identify which body of law governs its claims.
Ordinarily, a
federal court sitting in diversity must apply the substantive
law of the state in which it sits, which in this case would be
Virginia.
See Booker v. Peterson Cos., 412 F. App’x 615, 616
(4th Cir. 2011); Abraham v. CBOCS, Inc., No. 3:11CV182–DWD, 2011
WL 5119288, at *2 n.3 (E.D. Va. Oct. 27, 2011).
Defendant,
however, points out that the Agreement contains a choice-of-law
clause that provides New Jersey law is controlling.
Opp’n at 9.)
(Def.’s
Plaintiff’s brief makes no mention of this clause
or how it impacts the claims alleged.
With this issue
apparently unsettled, the Court cannot conclude, with the
required degree of certainty, that Plaintiff is entitled to
prevail as a matter of law.
Finally, this is not a case where the only issue to be
decided by the Court is a legal question.
the dispute appears factual in nature.
Rather, the core of
(See Def.’s Opp’n at 6.)
At this stage of the litigation, the Court must credit
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Defendant’s arguments as to the reasonableness, accuracy, and
timeliness of the invoices and draw reasonable inferences in
Defendant’s favor.
See Tolan, 131 S. Ct. at 1868.
With the
limited facts presently available, Defendant’s allegations
create genuine issues of material fact that cannot be resolved
by summary judgment.
Furthermore, Plaintiff filed this motion
before either party has had the opportunity to engage in any
meaningful discovery.
Forcing Defendant to address Plaintiff’s
contentions now, without the benefit of discovery, would place
him at an unfair disadvantage.
Indeed, it would appear
tantamount to summary judgment by ambush.
Zagklara v. Sprague
Energy Corp., No. 2:10-CV-445-GZS, 2012 WL 3679635, at *4 (D.
Me. July 2, 2012) (“Summary judgment practice by ambush is no
more to be favored than is trial by ambush.”), report and
recommendation adopted by, 2012 WL 3650596 (D. Me. Aug. 24,
2012); Sideridraulic Sys. SpA v. Briese Schiffahrts GmbH & Co.
KG, No. 10–0715–WS–M, 2011 WL 3204521, at *4 (S.D. Ala. July 26,
2011) (denying motion for summary judgment pursuant to Rule
56(d) where non-movant had not yet had the opportunity to
conduct discovery).
IV. Conclusion
Given the deficiencies noted above, the Court will
deny Plaintiff’s Motion for Summary Judgment without prejudice.
Plaintiff, should it so desire, may refile this motion along
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with an appropriate brief at a later junction.
An order will
follow.
September 10, 2014
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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