The opinion of the court was delivered by: Constance Baker Motley, United States District Judge.
On June 26, plaintiff filed the instant motion for summary judgment.
Upon consideration of, inter alia, plaintiff's memorandum of law in
support of its motion for summary judgment and defendant's opposition to
plaintiff's motion for summary judgment, the court hereby grants
plaintiff's motion for summary judgment.
The underlying facts regarding this case are undisputed.*fn1 On
December 29, 1997, plaintiff, a provider of, inter alia, domestic and
international long distance telephone services, entered into the Contract
with defendant, a pre-paid telephone calling-card merchant. The Contract
provided that plaintiff would provide telephone services to defendant
pursuant to WorldCom Tariff FCC No. 1 and No. 2 (the "Tariffs").
The Contract states that "[c]harges for Service shall be as set forth
in the Tariffs. Schedule A sets forth discount(s) which are guaranteed
for the term." Schedule A of the Contract contains special discounts from
the applicable tariff rates for defendant's interstate traffic. Schedule
A does not contain any special discounts or rates from the applicable
tariff rates for defendant's intrastate and international traffic. With
the exception of interstate traffic, plaintiff charged defendant tariff
rates for all calls.
The Contract further provides that "[t]his Agreement may be modified
only pursuant to a writing that is signed by each of the Parties."
Although defendant maintains that plaintiff made oral promises of
additional discounts after the Contract was signed, the Contract was
never modified in writing to provide defendant with any discounts or
special rates in addition to the discounts in Schedule A for interstate
rates. Therefore, defendant was not entitled to any special rates or
discounts from the applicable tariff rates for interstate calls.
After the Contract was signed, plaintiff began providing services to
defendant. Plaintiff began issuing monthly invoices to defendant starting
in or about February 1998. The invoices were due and payable within
thirty days of the invoice date. On or about December 9, 1999, plaintiff
sent defendant written notice of the breach of defendant's payment
obligations under the Contract and demanded payment of the current amount
then due and owing within five business days in order to prevent
termination of services. Defendant failed to pay its outstanding balance
as demanded by the December 9, 1999 notice.
The Tariffs impose a per-month late fee of 1.5 percent of the unpaid
balance. Therefore, plaintiff is entitled to a late fee at a rate of 18
percent annually on all monies owed by defendant pursuant to the
Contract. In addition, the Tariffs provide that "[i]n the event the
Company incurs fees or expenses, including attorneys' fees, court costs,
costs of investigation, and related expenses in collecting, or attempting
to collect, any charges owed the Company, the Customer will be liable to
the Company for the payment of all such fees and expenses reasonably
incurred." Hence, plaintiff is entitled to reasonable attorneys' fees and
expenses in connection with collection of any monies owed by defendant
pursuant to the Contract.
The standard for summary judgment is that "[u]ncertainty as to the true
state of any material fact defeats the motion." Gibson v. Am. Broad.
Corp. 892 F.2d 1128, 1132 (2d Cir. 1989). The movant must demonstrate the
absence of a genuine issue of material fact. If the movant carries this
burden, the burden then shifts to the non-moving party to produce
concrete evidence sufficient to establish a genuine unresolved issue of
material fact. See Catrett 477 U.S. 317, 322-24 (1986); Dister v.
Continental Group. Inc. 859 F.2d 1108, 1114 (2d Cir. 1988). The court
then must view the facts in the light most favorable to the non-movant
and give that party the benefit of all reasonable inferences from the
evidence that can be drawn in that party's favor. See Weinstock v.
Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). The court neither weighs
evidence nor resolves material factual issues but only determines
whether, after adequate discovery, any such issues remain unresolved
because a reasonable factfinder could decide for either party. See
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986); Gibson, 892,
F.2d at 1132. However, neither conclusory statements, conjecture, nor
speculation suffice to defeat summary judgment. See Kulak v. City of New
York 88 F.3d 63, 71 (2d Cir. 1996).
Defendant does not allege, in its three-page opposition to plaintiff's
motion for summary judgment, any facts which would indicate that
plaintiff violated its written agreement with defendant. As discussed
above, in spite of any oral assurances plaintiff may have made in
postcontract negotiations, no written change was made to the Contract, as
required by the Contract. Nevertheless, defendant further argues that
plaintiff is not entitled to relief because under the Contract, defendant
had the right to terminate the Contract should plaintiff institute a 5
percent rate increase. During the course of business between defendant and
plaintiff, defendant claims that plaintiff raised the rate to 4.9
percent. Defendant would have the court believe that "this is not clearly
a fair business practice." (Def.'s Opp'n.) However, defendant cites no
law to support the proposition that plaintiff's conduct constitutes
either a breach of contract or entitles defendant to equitable relief.
Indeed, this court has not found any cases with such a holding.
In addition, defendant has not disputed plaintiff's claim that,
according to the terms of the Contract, the amount owed to plaintiff at
the time of termination of services to defendant was $144, 752.95.
Finally, defendant has not disputed plaintiff's claim to 18 percent
interest and reasonable attorneys' fees.