The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
Plaintiff Frink America, Inc. ("Frink America") filed its first
action against defendant Champion Road Machinery Ltd.
("Champion") on March 22, 1996 alleging, inter alia, trademark
infringement and dilution. In its Answer, defendant asserted a
single counterclaim against plaintiff,
seeking cancellation of Frink America's registration of the
"Rollover" mark. Plaintiff filed a second action against
defendant on September 25, 1996 alleging: (1) misappropriation of
trade secrets and conversion; (2) tortious interference with
business relations; (3) trade dress infringement; (4) unfair
competition under applicable federal and state law; and (5)
copyright infringement under Canadian law. Plaintiff filed an
Amended Complaint on October 29, 1997, adding an additional claim
for breach of contract. In its Answer, defendant asserted
counterclaims against Frink America and its president, Lowry, for
patent and copyright infringement, misappropriation of trade
secrets, conversion and unfair competition. In an order dated
March 21, 1997, the Magistrate Judge consolidated the two
actions. The Court assumes familiarity with its two prior
decisions in this case. See Frink America, Inc. v. Champion Road
Machinery Ltd., 48 F. Supp.2d 198 (N.D.N.Y. May 11, 1999); Frink
America, Inc. v. Champion Road Machinery Ltd., 961 F. Supp. 398
In a Memorandum-Decision & Order dated May 11, 1999, this Court
granted defendant's motion for summary judgment with respect to
plaintiff's federal and state law trademark infringement, federal
and state trademark dilution, copyright infringement, trade dress
infringement, breach of contract, misappropriation of trade
secrets, tortious interference with business relations and
federal unfair competition claims. Defendant's summary judgment
motion was denied, however, with respect to plaintiff's state
unfair competition and conversion claims on the ground that
defendant failed to address those claims in its Memorandum of Law
in support of its motion for summary judgment. See Frink
America, 48 F. Supp.2d 198, 208-09. Thereafter, defendant
requested, and this Court denied, reconsideration and/or
reargument and leave to file additional briefing regarding that
portion of the Court's May 11, 1999 Memorandum-Decision and Order
which denied defendant's motion to dismiss plaintiff's state
unfair competition and conversion claims. See Letter of
Lawrence K. Kolodney, dated May 18, 1999. The Court, however,
treated defendant's request to file additional briefing as a
motion for leave for an extension of time within which to file
dispositive motions, and extended the period of time during which
the parties may file dispositive motions until July 19, 1999.
Champion presently moves this Court for summary judgment with
respect to Frink America's remaining state law claims sounding in
conversion and unfair competition.
A. The Standard for Summary Judgment
The standard for summary judgment is well-settled. Under
FED.R.CIV.P. 56(c), if there is no genuine issue as to any
material fact, the moving party is entitled to a judgment as a
matter of law "[w]here the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 86
(1996). The moving party bears the initial burden of "informing
the . . . court of the basis for its motion, and identifying
those portions of `the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits, if any,' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting
FED. R.CIV.P. 56(c)). The initial burden is to demonstrate "that
there is an absence of evidence to support the nonmoving party's
case." Id. at 325, 106 S.Ct. 2548.
Once the moving party has met its burden, the non-moving party
must come forward with specific facts showing that there is a
genuine issue for trial. See Celotex
Corp., 477 U.S. at 322, 106 S.Ct. 2548; Matsushita, 475 U.S.
at 585-86, 106 S.Ct. 1348. A dispute regarding a material fact is
genuine if a reasonable jury could return a verdict for the
non-moving party; that is, whether the non-movant's case, if
proved at trial, would be sufficient to survive a motion for
judgment as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). When reasonable minds, however, could not differ as to
the import of the evidence, then summary judgment is proper.
Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert.
denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).
Although the trial court must resolve all ambiguities and draw
all inferences in favor of that party against whom summary
judgment is sought, Ramseur v. Chase Manhattan Bank,
865 F.2d 460, 465 (2d Cir. 1989); Eastway Constr. Corp. v. City of New
York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied,
484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), the motion will not be
defeated by a non-movant who raises merely a "metaphysical doubt"
concerning the facts or who only offers conjecture or surmise.
Delaware & H.R. Co. v. Consolidated Rail Corp., 902 F.2d 174,
178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2041,
114 L.Ed.2d 125 (1991) (quoting Matsushita, 475 U.S. at 586,
106 S.Ct. 1348); see also Western World Ins. Co. v. Stack Oil,
Inc., 922 F.2d 118, 121 (2d Cir. 1990). Indeed, the nonmoving
party's opposition may not rest on mere allegations or denials of
the moving party's pleading, but "must set forth specific facts
showing that there is a genuine issue for trial." FED.R.CIV.P.
In its Amended Complaint, plaintiff bases its conversion claim
on the following allegation:
Champion has converted and misapplied Frink's
INTELLECTUAL PROPERTY and trade secrets, and
wrongfully manufactured products identical to those
of Frink by use of such INTELLECTUAL PROPERTY and
trade secrets. ...