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FRINK AMERICA v. CHAMPION ROAD MACHINERY LTD.

August 6, 1999

FRINK AMERICA, INC., PLAINTIFF,
v.
CHAMPION ROAD MACHINERY LIMITED, DEFENDANT. CHAMPION ROAD MACHINERY LIMITED, COUNTER-CLAIMANT, V. FRINK AMERICA, INC.; AND DAVID LOWRY, COUNTER-DEFENDANTS. FRINK AMERICA, INC., PLAINTIFF, V. CHAMPION ROAD MACHINERY LIMITED, DEFENDANT.



The opinion of the court was delivered by: McAVOY, Chief Judge.

MEMORANDUM-DECISION & ORDER

I. BACKGROUND

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.

II. Discussion

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. 56(e).

B. Conversion Claim

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. ...

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