Corbin Bernsen v. Innovative Legal Marketing, LLC
Filing
67
MEMORANDUM OPINION re: 50 MOTION for Summary Judgment by Corbin Bernsen. Accordingly, Bernsen's Motion for Summary Judgment on ILM's Counterclaim is HELD IN ABEYANCE until trial. IT IS SO ORDERED. Signed by District Judge Rebecca Beach Smith and filed on 9/6/12. Copies distributed 9/7/12.(ldab, )
UNITED
STATES
EASTERN
DISTRICT
Norfolk
CORBIN
DISTRICT
OF
COURT
VIRGINIA
Division
BERNSEN,
Plaintiff,
ACTION
v.
INNOVATIVE
LEGAL
MARKETING,
NO.
2:llcv546
LLC,
Defendant.
MEMORANDUM
This
matter
Judgment,
together
Legal
with
by
an
for
Corbin
the
court
Bernsen
on
LLC
filed
("ILM")
Judgment
filed
his
in
in
its
("ILM's
Reply
a
Motion
("Bernsen")
Memorandum
Summary
Bernsen
before
accompanying
Marketing,
Motion
and
filed
comes
OPINION
on
June
Response")
on
July
2012,
Innovative
to
on
Summary
21,
Support.
Opposition
Support
for
Bernsen's
July
11,
5,
2012,
2012.
The
matter is now ripe for review.1
I.
The
factual
Recommended
United
1
of
that
arguments
are
would
be
Civ.
not
P.
78(b);
of
and Procedural
of
a
the
a
briefs
adequately
Local
case
is
on
and
7(J).
out
Fact
Report
the
by
in
full
in
the
section
of
the
and
August
presented,
R.
laid
3,
and
oral
as
the
Recommendation
2 012.
record,
unnecessary,
significantly
Civ.
is
History
Material
Judge's
hearing
hearing
aided
this
Undisputed
Magistrate
requested
examination
determined
history
Findings
States
Bernsen
Factual
the
After
the
court
facts
and
decisional
argument.
full
See
has
legal
process
Fed.
R.
("R&R")
filed
Memorandum
Order
ILM
To
Agreement
Section
might
Id.
to
briefly
into
an
make
any
had
through
November
9,
Agreement.
summary
Magistrate
alleging
The
motion
May
recommendation.
The
R&R
objected
5,
matter
of
Agreement.
July
law
that
18,
was
2012,
to
ILM
had
was
filed
the
not
firms.
to
on
R&R's
doing
with
anything
public
and
the
Id.
at
contract
that
refused
that
4.
and
action
unjust
counterclaim
to
the
ILM
a
for
moved
United
prepare
20,
on
breached
2012,
a
States
report
2012.
recommended
its
in
Agreement
instant
a
The
disrepute.
asserting
in
June
waived
2.
clause
himself
27,
R&R
morality
the
referred
2012,
corporation
Agreement
of
Mem.
Id.
filed
April
2-8;
its
campaign.
into
filed
in
("Agreement")
incidents.
Bernsen
On
law
clause
ILM
court
R&R
Bernsen,
breach
4-5.
a
the
to
Bernsen
4-5.
CASE
from
morality
for
and
clients
separate
on
on
its
five
Answer
Judge
Bernsen
this
Virginia
things,
payments
Compl.
judgment.
BIG
2011,
2011,
See
their
claims
a
agreement
terminated
the
in
7,
See
or
by
See
is
lawyers
other
ILM
alleging
enrichment.
ILM
for
to
ILM,
additional
actions
ILM,
2012.
prohibited
2011,
October
against
14,
among
violated
his
On
of
August
spokesperson
himself,
June
adopted
related
which
In
and
services
contained,
bring
2012,
summarize,
a
actor,
VI,
Bernsen
20,
filed
marketing
entered
Bernsen,
June
Order
3.
providing
on
Bernsen
finding
rights
and
under
as
a
the
The
court
denying
in
August
14,
language
part
2012.
of
court
the
morality
claim
Bernsen
clause,
10.
for
favor on
of
to
as
U.S.
the
a
to
of
alleged
breach
in
on
that
summary
the
however,
Agreement
motion
on
that
clause;
the
ILM's
grant
law
remained
dismissed
if
element
that
of
of
fact
the
has
(1986).
as
and
of
of
dispute
by
ILM.
Bernsen's
claim.
Id.
judgment
in
his
when
finds
A
the
on
which
Celotex
no
is
should
that
grant
party
v.
genuine
Lobby,
of
most
entitled
adequate
existence
Corp.
light
is
Liberty
after
the
the
party
v.
court
in
there
moving
party,
case,
appropriate
and
Anderson
establish
trial.
is
whole
the
(1986).
party's
at
a
that
law.
to
56
party,
nonmoving
failed
proof
Rule
nonmoving
248-50
discovery,
323
waiver
and
under
record
matter
242,
judgment
317,
facts
and
Summary Judgment Standard
the
material
judgment
burden
Bernsen's
part
Judgment
of
morality
granted
court
judgment
viewing
favorable
477
to
matter
in
ILM's Counterclaim.
Summary
issue
and
court
the
a
granting
Summary
a
material
conduct
II.
court,
as
enrichment
moves
as
included
motion
Order
for
found
because
The
unjust
now
Motion
court
ILM's
Bernsen's
Order
Memorandum
ILM's
Agreement
denied
concerning
its
The
the
the
Mem.
entered
an
will
Catrett,
to
Inc.,
summary
time
for
essential
bear
477
the
U.S.
In
the
essence,
[trier
party.
of
the
fact]
Anderson,
summary
in
See
Inc.
Pleasant
v.
1993)
("A
evidence
id.
that
Conclusory
suffice,
nor
does
Causey
the
mere
find
must
for
summary
ILM
is
to
seek
return
undisputed
that
judgment
without
Balog,
specific
162
existence
be
two
First,
F.3d
of
evidence
of
he
not
issue
163
be
Anderson,
of
477
which
(4th
Cir.
by
249-50)).
support,
(4th
scintilla
Serv.,
sufficiently
at
802
&
for
defeated
not
U.S.
facts
affidavits,
evidentiary
on
the
for
Cir.
1998),
evidence
U.S.
the
jury
do
at
in
252.
could
Id.
Analysis
arguments
in
alleges
the monies
fully
on
160,
which
motion
Supplies
'is
795,
a
position,"
he
may
477
a
genuine
F.2d
on
non-moving
beyond
Med.
or
Anderson,
go
a
M
981
the plaintiff."
advances
judgment.
&
the
instead
show
M
for
defeat
must
colorable'
Ill.
Bernsen
to
Inc.,
summary
plaintiff's
"there
reasonably
v.
To
rely
also
Hosp.,
(quoting
"[t]he
of
see
'merely
statements,
not
Rather,
324;
for
is
and
"evidence
find"
party
evidence
Valley
motion
probative.'"
support
at
present
252.
nonmoving
other
trial.
at
pleadings,
or
must
reasonably
U.S.
the
the
depositions,
could
477
judgment,
alleged
non-movant
support
that
paid
performed
to
there
him,
the
of
his
is
motion
no
for
basis
for
contending
services
that
it
required
of
him under Section I of the Agreement.2
extent
that
Bernsen
Agreement,
the
Agreement
includes
material
of
Agreement.
as
to
contract,
has
a
of
morality
that
Thus,
7.
and
a
his
the
of
the
that
Bernsen's
a material
performed
VI
further
material
To the
under
Section
to whether
constitute
fully
Supp.
performance
found
as
Order 10.
Bernsen
his
clause,
exists
clause
See Mem.
on
already
fact
this
whether
breach
a
alleged
of
the
dispute remains
duties
under
the
and summary judgment on that ground is inappropriate.
Bernsen
ILM's
court
dispute
violations
relies
See Mem.
next
claim of
breach
of
the
claim
for
that
$595,791.773
Agreement.
damages
Bernsen's
argues
on
services,
an
in
there
is
damages
See
Mem.
alleged
contending
no
flowing
Supp.
absence
that
evidence
to
support
from the
alleged
9-11.
of
ILM
value
rests
derived
"[b]ecause
ILM
its
from
valued
2 As a corollary to this argument, Bernsen contends that ILM, in
asking to recover the monies paid under the Agreement,
is
seeking rescission of the contract, which is inappropriate in a
case
in
which
partial
performance
has
already
occurred.
S_ee
Mem. Supp. 8.
In its Response, ILM argues it is not requesting
but merely
rescission and a return to the status quo ante,
seeking damages resulting from Bernsen's breach.
See ILM's
Resp. 2-3.
While the remedy for which ILM has asked may be
equivalent to rescission, ILM has pled its case as a breach of
contract claim seeking damages, and it should be analyzed as
such. See Sunrise Continuing Care, LLC v. Wright,
671 S.E.2d
132, 136 (Va. 2009)
(acknowledging that the plaintiffs "pursued
the remedy of rescission under the guise of a breach of contract
claim,"
but
nonetheless
analyzing
the
case
as
a
breach of
contract
3
This
claim seeking
figure
damages).
represents
the
under the Agreement before
infra note
total
amount
its termination.
5.
5
ILM
paid
See
to
ILM's
Bernsen
Resp.
3;
adequate
performance
$595,791.77,
actual
is
that
Morals
and
at
ILM's
1
Brien
engages
clients
ILM
damages
to
satisfy
trial.
ILM's
view
ruling
evidence
burden."
on
the
elements
of
ILM
has
its
"[t]he
a
it
met
elements
a
standard
the
v.
is
a
summary
prism
Liberty
this
breach
of
breach
to
Sunrise
(Va.
with
reasonable
2009)
2004)).
the
the
Attach.
and
proceed
to
the
court
a
v.
of
242,
to
determine
(1)
a
v.
by
the
Wright,
George,
594
legally
damages."
(2)
the
(3)
breach
671
of
of
S.E.2d
S.E.2d
"burden
law,
and
obligation;
the
whether
Virginia
are
254
consider
plaintiff;
caused
LLC
case
must
evidentiary
U.S.
Under
that
bears
amount
6
to
Care,
Filak
plaintiff
certainty
of
plaintiff
(quoting
to
action
defendant
Continuing
The
action
contract
or
614
on
of
477
juncture.
violation
(Va.
the
proof
substantive
present
the
contract
at
the
in
necessary
of
of
Inc.,
defendant's
136
sufficient
Lobby,
a
132,
Resp.
judgment,
for
of
obligation."
to
negatively
ILM's
judgment
motion
burden
damage
ILM."
is
obligation
or
reflects
evidence
enforceable
injury
contrary
such
breach
of
to
Member,
4.
"through
Thus,
that
its
evidence
Managing
behaves
least
of
supporting
summary
the
Anderson
(1986) .
value
at
determination
ILM's
that
conduct
Agreement
sole
Johnson,
no
has
jury
ILM's
in
argues
Resp.
a
4.
spokesperson
4.
In
to
Resp.
from
and
Spokesperson
entitled
"[a]
Clause
the
ILM's
affidavit
stating
1,
is
damages."
an
ILM
ILM
under
610,
proving
SunTrust
Bank
v.
Farrar,
Davis,
if
675
574
the
S.E.2d
191.
Where
reasonable
524
(Va.
2003)).
are
or
the
plaintiff
Isle
cases
are
particularly
has
met
its
RGI,
Inc.
Cir.
1992),
that
RGI
v.
"to
breach
of
County
v.
Unified
the
damages
for
a
the
Shepherd
burden
is
v.
not
met
from
uncertainties,
Bank,
675
establish
contract
Nogiec,
S.E.2d
damages
claim
704
"tremendous
at
with
should
S.E.2d
The
District
defendants
on
the
established
that
defendants'
conduct.
it
963
for
be
83,
86
Court
of
could
Id.
any
659.
7
the
In
offered
its
summary
RGI
"had
damages"
Noting
660
alleging
response
to
of
stating
information
with
respect
for RGI."
judgment
put
to
Id.
to
the
sufficiently
resulting
that
(4th
defendant's
President,
not
in
evidence
as
proprietary
lost profits
prove
of
ILM
First,
judgment
disadvantage
that
at
by
whether
658,
information.
granted
ground
F.2d
summary
RGI
situation
damages.
from one
signed
competitive
instant
assessing
Inc.,
judgment,
"results directly in
in
to
proprietary
disclosure
the
respect
moved
affidavit,
defendant's
UII," which
with
any damages
summary
to
consider
Industries,
prove
of
similar
to
proof
defendants
single
a
facts
useful
of
disclosure
motion
at
burden
could not
alleged
RGI
fails
the
present
and
that
This
SunTrust
Wight
of
(quoting
2011).
Two
the
2009)
"derived
speculation."
certainty"
dismissed.
(Va.
(Va.
514,
damages
contingencies,
191
alleged
S.E.2d
187,
the
from
the
affidavit
contained
facts
the
only
contemplated
District
held
to
"bald
that
allegations
to
Court's
the
be
a
grant
genuine
damages
proven,"
of
President's
establish
of
the
summary
affidavit
issue
of
but
Fourth
indicate[d]
Circuit
judgment.
was
Id.
"simply
material
fact
affirmed
at
too
no
661.
It
conclusory
with
regard
to
damages."
Second,
plaintiffs
support
4
under
the
as
claim
jury
ILM
as
under
contracted
the
could
the
Id.
at
135.
notes
defendant's
motion
plaintiff's
evidence,
ILM's
Resp.
judgment
or
4.
a
In
for
determine whether
regard
Anderson
1986) ("[T]he
requires
the
the
Liberty
standards
directed
a
verdict
at
than
or
at
to
a
has met
of
apply
and
be
to
8
is
a
his
the
from
value
the
the
for
case.
judgment
applicable
This
stage.
summary
the
court
of
proof
burden
the
the
of
of
action.
255
factual
by
which
Care,
242,
given
was
of
judgment
cause
U.S.
'first
benefits
however,
the
guided
summary
Sunrise Continuing Care's holding
of
477
whether
must
the
motion
plaintiff
value
evidence
care
summary
verdict,
Inc.,
been
To
"they
in
conclusion
either
they
case.
Continuing
the
elements
had
"no
between
the
the
'actual'
poor
directed
jury
that
the
Sunrise
Lobby,
determination
to
care
in
substantive
submission
evidentiary
both
v.
a
of
the
amount
contended
they
However,
heard
rather
with
the
that
in
132,4
difference
if
difference
responding
motion
to
the
total
issue
the
value
average
was
must
See
of
S.E.2d
plaintiffs
contract
and
calculate
correctly
the
for
value
the
at
damages
the
671
to
contract
damages,
benefits
on
the
receive
to
Care,
equivalent
for
received."
presented
the
damages
their
between
[they]
Continuing
sought
entitled
class'
Sunrise
defendants
had paid
were
in
(U.S.
dispute
substantive
is
true
stages.").
to this
at
Thus,
case.
contracted-for
Id.
Because
upon
which
resorting
Court
for
services
the
plaintiffs
the
to
held
jury
of
defendants.
they
This
court
of
damages
issue
material
reasonable
S.E.2d
Managing
86
contains
the
(Va.
is
has
ILM.
affidavit
which
at
Bernsen's
this
ILM,
to
stage,
it
is
allegation made
were
of
if
that
bound
by
this
ILM
evidence
damages
Virginia
the
a
without
Supreme
prima
judgment
in
facie
claim
favor
of
the
presented
ILM's
"to
on
the
genuine
issue
at
County
that
indicate
damaged
in
accept
as
court
incurred
to
ILM.
were
to
some
RGI,
ILM.
the
is
of
any
light
See
the
that
RGI,
accept
of
no
value
the
most
damages,
to
to
services
658.
affidavit
it
to
conclusory
Bernsen's
ILM's
a
must,
favorable
F.2d
it
facts
extent
court
bald,
963
ILM's
that
specific
the
704
that
allegation
While
true
in
of
with
Nogiec,
Johnson,
demonstrate
degree
9
v.
in
clause
would
damages
Brien
bald
Managing Member
value
of
issue
morals
not
a
establish
Wight
that
the
has
establish
affidavit
evidence
to
ILM
officer's
acts
the
absolutely no
Even
evidence
proven
view
not
to
does
alleged
of
The
violates
be
to
failed
corporate
who
contemplated
of
establish
entered
Isle
akin
spokesperson
The
sufficient
award
evidence
2011).
a
an
to
conclusory
ILM
only
"present
received."
136-137.
too
Member,
not
actually
conjecture,"
and
certainty,"
83,
services
base
"failed
finds
fact.
did
or
contract"
Id^ at
the
could
speculation
that
breach
and
would
as
not
be
enough
to
damages.
entitle
Like
has
not
the
the
offered
difference
reduce
the
the
value
ILM
the
value
of
fact
that
the
of
value
to
ILM
offered
no
evidence
caused,
a
damages
jury
ILM
suggest
would
BIG
that
it
to
without
resorting
ILM
failed
at
this
sufficient
to
raise
is
given
required,
R&R
4,
and
it
were
is
utterly
violations.
which
to
to
the
As
determine
breach
assessing
incurred
It
would
as
alleged
of
it
clause
services
upon
which
However,
alleged
Bernsen's
incapable
morals
ILM
measure
received.5
ILM.
Bernsen's
actual
Care,
for
campaign,"
the
its
could
services
performed
CASE
of
jury
the
whatsoever
that
be
the
the
services
because
value
of
"Bernsen
devoid
in
which
of
pale
reduction
from
of
Continuing
services
the
any
Sunrise
violation
a
used
determination
the
beyond
has
in
Bernsen's
clients
ILM
jury
value
of
that
to
a
evidence
the
undisputed
several
any
possible
to
plaintiffs
between
contracted and
certainly
ILM
may
have
amount
speculation
of
and
conjecture.6
Because
specific
material
evidence
fact
5 Moreover,
with
before
even
able
benchmark
respect
to
Bernsen
use
from which
the
late
November
7,
2012.
signed
date
to measure
6 Discovery in this case
for
to
damages,
juncture
a
an
to
genuine
essential
identify
issue
of
element
of
as one of the alleged violations of the morals clause
occurred
be
has
No
is
the
of
contract,
the
damages.
concluded,
further
stage.
10
a
alleged
See
R&R
and the
discovery
is
jury
would
violations
not
as
a
4.
jury trial
permitted
is
at
set
this
its
breach
proof
contract
trial,
at
of
the
claim
court
on
finds
judgment as a matter of law.7
Summary
Judgment
trial.8
The
on
Clerk
Memorandum Opinion
IT
IS
SO
ILM's
is
to
which
ILM
Bernsen
bears
will
Accordingly,
Counterclaim
DIRECTED
counsel
is
for
the
burden
of
entitled
be
to
Bernsen's Motion for
HELD
IN
forward
to
the
ABEYANCE
a
copy
until
of
this
parties.
ORDERED
M.
Rebecca Beach Smith
Chief
United States District Judge
REBECCA
CHIEF
Norfolk,
6,
case
will
proceed
ILM's
which
case
the
jury's
verdict,
ILM
as
the
to
contract
the
the
specifics
before
the
Counterclaim
supra
See
be
counterclaim.
currently
notes
supra
to
defense,
will
the
See
STATES
DISTRICT
JUDGE
2012
contract,
on
UNITED
SMITH
Virginia
September
The
BEACH
note
5
and
trial
and
on
Bernsen's
Bernsen's
presented
to
court
then
of
will
its
Lacking
court,
judgment
and
will
it
6.
7.
11
not
claim
the
damage
any
claim
of
jury.
entertain
claim
of
waiver,
after
upon
a
from
for
proffer
its
breach
specifics
will
entered
be
of
Depending
further
be
breach
submitted
than
for
to
of
that
Bernsen
the
jury.
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