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BONNIE & CO. FASHIONS v. BANKERS TRUST CO.

January 29, 1997

BONNIE & COMPANY FASHIONS, INC. and BONNIE BOERER, individually, Plaintiffs, against BANKERS TRUST COMPANY, Defendant.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 Currently before this Court is a motion for partial summary judgment brought by individual plaintiff Bonnie Boerer ("Boerer" or "plaintiff"). Defendant Bankers Trust Company ("defendant," the "Bank," or "BTC") opposes plaintiff's motion for summary judgment. For the following reasons, plaintiff's motion is granted in part and denied in part.

 BACKGROUND

 This case arises from an alleged breach of a factoring agreement (the "Factoring Agreement") between plaintiff Bonnie & Company Fashions, Inc. ("Bonnie & Co.") and BTC. The facts underlying this litigation are set forth in detail in Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 945 F. Supp. 693, 699-702 (S.D.N.Y. 1996) (the "1996 Opinion"), and therefore, they will be recited herein only where necessary to resolve the instant motion for summary judgment. Boerer and Bonnie & Co.'s ("plaintiffs") Complaint contains six counts, all of which arise from BTC's alleged violations of the Factoring Agreement. See (Complaint and Jury Demand, Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 91 Civ. 0341 ("Complaint") PP 8-66 (Jan. 2, 1991).) BTC also filed eleven affirmative defenses, including seven counterclaims. See (Answer with Counterclaims, Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 91 Civ. 0341 ("Answer") PP 20-55 (Dec. 5, 1991).)

 In the 1996 Opinion, this Court considered defendant's motion for summary judgment. The 1996 Opinion granted summary judgment to BTC in full and in part on several different Counts of plaintiffs' Complaint, as well as on a number of BTC's affirmative defenses and counterclaims. Bonnie & Co., 945 F. Supp. at 733-34. On January 21, 1997, this Court denied both parties' motions for reargument concerning the 1996 Opinion. Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 1997 U.S. Dist. LEXIS 417, F. Supp. , 1997 WL 23185 (S.D.N.Y. Jan. 21, 1997). This Court will now describe the claims which the parties' each made and those which remain intact prior to this Court's resolution of the instant motion.

 Plaintiffs' Complaint alleges the following counts against defendant: (1) breach of the Factoring Agreement; (2) breach of fiduciary duty; (3) negligence; (4) release of the $ 1,000,000 Treasury Bill which Boerer posted as collateral for Bonnie & Co.'s debts to BTC; (5) breach of the Factoring Agreement, breach of fiduciary duty, negligence, fraud, breach of duty of confidentiality, emotional distress, lost profits and salary, and emotional distress for breach of contract; and (6) litigation costs. (Complaint PP 8-66.)

 Defendant's Answer sets forth the following affirmative defenses against plaintiffs: (1) failure to state a claim upon which relief can be granted; (2) plaintiffs' breach of the Factoring Agreement; (3) defendant did not breach the Factoring Agreement; (4) plaintiffs waived their claims by failing to timely object to defendant's alleged breaches of the Factoring Agreement. (Answer PP 20-29.) In its Answer, defendant's fifth through eleventh affirmative defenses simultaneously allege defendant's first through seventh counterclaims. These claims are: (1) BTC's Fifth Affirmative Defense/First Counterclaim for plaintiffs' unpaid liabilities of $ 127,608.35 plus interest; (2) BTC's Sixth Affirmative Defense/Second Counterclaim for indemnification pursuant to the Factoring Agreement; (3) BTC's Seventh Affirmative Defense/Third Counterclaim for payment of $ 127,608.35 pursuant to Boerer's Limited Guaranty contract; (4) BTC's Eighth Affirmative Defense/Fourth Counterclaim for costs and expenses pursuant to the Limited Guaranty; (5) BTC's Ninth Affirmative Defense/Fifth Counterclaim for a declaratory judgment affirming its superior interest in the Treasury Bill, an order foreclosing its perfected security interest in the Treasury Bill and a recovery of costs associated with the liquidation of the Treasury Bill; (6) BTC's Tenth Affirmative Defense/Sixth Counterclaim for an injunction ordering Boerer to direct the bank holding the Treasury Bill to release it to BTC; and (7) BTC's Eleventh Affirmative Defense/Seventh Counterclaim for costs attributable to BTC's efforts to obtain the Treasury Bill after Boerer allegedly wrongfully instructed the bank holding the collateral not to release it to BTC. Id. PP 31-55.

 In the 1996 Opinion, this Court granted in part and denied in part defendant's motion for summary judgment. This Court granted summary judgment to defendant on Counts Two and Three, plaintiffs' claims for, respectively, breach of fiduciary duty and for negligence. Bonnie & Co., 945 F. Supp. at 733. This Court granted in part and denied in part defendant's motion for summary judgment on Count One, plaintiffs' claim for breach of the Factoring Agreement. Id. This Court denied summary judgment because a factual issue exists as to defendant's alleged breach, but granted summary judgment on plaintiffs' claim for punitive damages. Id. at 711. This Court also denied defendant's motion for summary judgment on that part of Count Four in which plaintiffs sought release of the Treasury Bill and compensatory damages, but granted summary judgment to defendant on plaintiffs' claim in Count Four for punitive damages. Id. at 733.

 This Court granted defendant's motion for summary judgment on Count Five on plaintiffs' claims for breach of fiduciary duty, negligence, fraud, breach of duty of confidentiality, emotional distress, and for damages for emotional distress for breach of contract. Id. This Court, however, denied defendant's motion for summary judgment on plaintiffs' Count Five claims for breach of the Factoring Agreement and for damages from lost profits and salary. Id.

 Finally, this Court denied defendant's motion for summary judgment on that part of Count Six in which plaintiffs seek payment for their costs associated with Count One, and granted defendant's motion for summary judgment on that part of Count Six in which plaintiffs seek payment of their costs associated with Count Two. Id.

 In addition, this Court granted in part and denied in part defendant's motion for summary judgment on its eleven affirmative defenses and seven counterclaims. Id. at 733-34. This Court denied defendant's motion for summary judgment on its first four affirmative defenses, as well as on its Fifth Affirmative Defense/Fist Counterclaim, Seventh Affirmative Defense/Third Counterclaim, Ninth Affirmative Defense/Fifth Counterclaim, Tenth Affirmative Defense/Sixth Counterclaim and Eleventh Affirmative Defense/Seventh Counterclaims. Id. This Court, however, granted defendant's motion for summary judgment on defendant's Sixth Affirmative Defense/Second Counterclaim and Eighth Affirmative Defense/Fourth Counterclaim. Id. at 733.

 This Court also denied all of the following in its 1996 Opinion: (1) plaintiffs' request for additional time to conduct discovery; (2) plaintiffs' motion for leave to file additional affidavits in response to defendant's motion for summary judgment; and (3) plaintiffs' motion to take a second deposition of a non-party witness; and (4) plaintiffs' request for a jury trial. This Court also dismissed as moot defendant's motion for a protective order.

 The instant motion for summary judgment was brought by plaintiffs after defendants filed the motion for summary judgment which was the primary subject of the 1996 Opinion, but before this Court issued the 1996 Opinion. In the instant motion, Boerer asserts that she is entitled to summary judgment on: (1) Count Four which seeks the return of the Treasury Bill, (Plaintiff Bonnie Boerer's Memorandum of Law In Support of Her Motion For Partial Summary Judgment, Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 91 Civ. 0341 ("Pltf. Memo") at 6 (Nov. 7, 1996)); and (2) defendant's counterclaims which seek attorneys' fees, id. at 12-13. Specifically, plaintiff moves for summary judgment with respect to three of defendant's counterclaims for attorneys' fees: (1) defendant's Sixth Affirmative Defense/Second Counterclaim which seeks attorneys' fees based on Section 6.2 of the Factoring Agreement; (2) defendant's Eighth Affirmative Defense/Fourth Counterclaim which seeks attorneys' fees based on the Limited Guaranty; and (3) defendant's Eleventh Affirmative Defense/Seventh Counterclaim which seeks attorneys' fees arising from Boerer's alleged wrongful instruction to the bank holding the Treasury Bill not to release it to defendant. Id. at 12-13 & 21. Defendant opposes Boerer's motion for summary judgment. (Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion For Partial Summary Judgment, Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 91 Civ. 0341 ("BTC Opp. Memo") (Dec. 16, 1996).)

 DISCUSSION

 This Court will consider each of the issues on which plaintiff seeks summary judgment individually. As a preliminary matter, however, this Court will set forth the legal standard controlling motions for summary judgment.

 I. SUMMARY JUDGMENT STANDARD

 Pursuant to Federal Rule of Civil Procedure ("Rule") 56, summary judgement is appropriate where "the pleadings, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970). The movant may discharge this burden by demonstrating to the court that there is an absence of evidence to support the non-moving party's case on an issue which that party would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). As the Second Circuit has noted, "it has long been the rule that on summary judgment the inferences to be drawn from the underlying facts contained in [the moving party's] materials must be viewed in the light most favorable to the party opposing the motion." Lendino v. Trans Union Credit Info. Co., 970 F.2d 1110, 1112 (2d Cir. 1992) (quotation omitted).

 To defeat a motion for summary judgment, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. If the adverse party does not respond to the motion for summary judgement, "summary judgement, if appropriate, shall be entered against the adverse party." Fed. R. Civ. P. 56(e).

 In considering a motion for summary judgment, a court is not to resolve contested issues of fact, but rather, it is to determine the existence of any disputed issues of material fact. Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The existence of a genuine issue of material fact depends on both the genuineness and the materiality of the issues raised by the motion. See Scottish Air Int'l, Inc v. British Caledonian Group, 867 F. Supp. 262, 266 (S.D.N.Y. 1994), aff'd, 81 F.3d 1224 (2d Cir. 1996). Indeed, "the mere existence of factual issues--where those issues are not material to the claims before the court--will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam). To evaluate a fact's materiality, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] factual disputes that are irrelevant or unnecessary will not be counted." Id. (citations omitted); see Knight, 804 F.2d at 11-12. According to the Supreme Court, "all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a judge or jury to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 249, 106 S. Ct. at 2510 (quotation omitted).

 II. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

 Boerer moves for summary judgment on two issues: (1) the immediate return of the $ 1,000,000 Treasury bill which Boerer posted as collateral, a claim pleaded in Count Four of the Complaint; and (2) defendant's claims for attorneys' fees which are pleaded as defendant's Sixth Affirmative Defense/Second Counterclaim, Eighth Affirmative Defense/Fourth Counterclaim, and Eleventh Affirmative Defense/Seventh Counterclaim. Defendant opposes plaintiff's motion for summary judgment. Because this Court issued its 1996 Opinion after plaintiff filed its moving papers, but before defendant filed its opposition submissions, the parties' arguments are not directly responsive to each other. Instead, defendant's arguments are based on plaintiff's moving papers as well as the 1996 Opinion, which plaintiff did not have when it submitted its motion. For ease of organization, this Court briefly will summarize the parties' respective arguments, and their implications for this Court's resolution of the instant motion.

 A. Summary of the Parties' Arguments

 In support of its motion for summary judgment, plaintiff makes two arguments. First, plaintiff claims that the $ 1,000,000 collateral is intended to secure Bonnie & Co's liabilities that arise from its unpaid BTC factor accounts. Plaintiff then argues that, because its factor accounts recently have been paid as a result of a bankruptcy settlement, plaintiff is entitled to the release of the $ 1,000,000 collateral. Second, plaintiff asserts that BTC is not entitled to have plaintiffs reimburse BTC for its attorneys' fees in this litigation, other than those costs arising from BTC's "expenses of collection" of the Bonnie & Co. indebtedness.

 In its opposition to plaintiff's motion for summary judgment, defendant also makes two arguments. First, defendant argues that, under the agreements between the parties, plaintiffs are liable for all of BTC's litigation costs in this case. Moreover, defendant asserts that the $ 1,000,000 Treasury Bill is collateral for plaintiffs' liabilities for defendant's unpaid legal expenses as well as for Bonnie & Co.'s unpaid factor accounts. In addition, BTC's second argument--which has no corresponding argument in plaintiffs' initial submission--is that the issues raised by the instant motion were settled by this Court's 1996 Opinion, and thus, constitute "the law of the case," and should not be re-litigated. This asymmetry is due to the 1996 Opinion which, as previously noted, this Court handed down after plaintiff filed the instant motion, but before defendant filed its opposition papers.

 Defendant's arguments affect the structure of this Court's resolution of the instant motion. Plaintiffs' motion separated its two claims--release of the collateral and defendant's entitlement to attorneys' fees--into two independently argued portions of its motion. Defendant's first argument, however, merges these two issues by hinging the release of the collateral upon plaintiffs' liability for defendant's attorneys' fees. As a result, this Court cannot address the first issue on which plaintiff seeks summary judgment without also considering the second.

 There are thus two inter-related issues to be considered in the instant motion for summary judgment: (1) whether plaintiff's $ 1,000,000 collateral should be released, including whether plaintiffs' liability for BTC's attorneys' fees is secured by the collateral; and (2) the extent to which plaintiffs are liable for BTC's attorneys' fees. Complicating matters still further is defendant's law of the case argument. Because that argument is potentially dispositive of plaintiff's motion for summary judgment, this Court will consider it first.

 B. BTC's Law of the Case Argument

 BTC argues that this Court already has found that the Factoring Agreement "clearly and unambiguously renders Bonnie & Co. liable for all expenses incurred by BTC in connection with BTC's efforts to collect from Bonnie & Co. any obligation, 'arising out of or in any way related to this [Factoring] Agreement.'" Id. at 2; Bonnie & Co., 945 F. Supp. at 728. BTC also points out that this Court further determined that BTC is entitled to "full reimbursement by Bonnie & Co. of all of its reasonable attorneys' fees, costs and disbursements 'arising out of or in any way related to' the Factoring Agreement." (BTC Opp. Memo at 2-3); Bonnie & Co., 945 F. Supp. at 729. Accordingly, BTC argues that "this Court's prior rulings constitute the law of the case and plaintiffs' motion must be denied for this reason alone." (BTC Opp. Memo at 10.)

 BTC asserts that "it is well-settled in this Circuit that a court should reconsider its prior rulings only when presented with 'cogent' or 'compelling' reasons to do so, such as 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Id. BTC then claims that "nothing 'cogent' or 'compelling' has occurred in this case to justify reconsideration of this Court's prior denials of the relief plaintiffs again seek by the instant motion." Id. at 12. Instead, BTC maintains that "the only factual event that has occurred in the interim is that in May 1995 BTC received a distribution from the Allied/Federated bankruptcy with respect to certain invoices that had previously been charged back to the Bonnie & Co. account." Id. BTC contends that it "credited the amount of these payments to the Bonnie & Co. account[,] thereby reducing the amount of the Bonnie & Co. indebtedness by the amount of the payments." Id. at 12-13.

 BTC argues, however, that "even after these monies were applied as of May 1995, the Bonnie & Co. account still remained in a debit balance reflecting the significant amount of attorneys' fees and expenses that had been incurred by BTC through that date in prosecuting and defending this lawsuit. . . ." Id. at 13. Furthermore, BTC maintains that, under the Factoring Agreement, its attorneys' fees and expenses in this litigation are "expressly chargeable to the Bonnie & Co. account." Id.

 In reply to BTC's law of the case argument, Boerer claims that BTC "ignores the pivotal change of circumstances that has occurred since 1992 and the present, namely, the Allied/Federated Bankruptcy payment that mooted [BTC's] $ 127,608 counterclaim." (Plaintiff Bonnie Boerer's Reply Memorandum of Law in Support of Her Motion For Partial Summary Judgment, Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 91 Civ. 0341 ("Pltf. Reply Memo") at 27 (Dec. 23, 1996).) According to Boerer, "this 'new evidence' warrants this Court in deciding anew whether Boerer is entitled to the release of her $ 1[,000,000] side-collateral." Id. Moreover, Boerer contends that BTC's law of the case argument "is premised on a mischaracterization of this Court's prior decisions." Id. Specifically, Boerer claims that BTC incorrectly argues that this Court's previous denials of summary judgment on Count Four were premised on BTC's continuing legal expenses, rather than on "the fact that [BTC's] $ 127,608 counterclaim was still pending ...


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