The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
In a thorough report and recommendation dated January 18, 2005,
Magistrate Judge Gabriel W. Gorenstein recommended that the Court
grant the motions for summary judgment of Sony Financial
Services, LLC, and Sony Electronics, Inc. Multi-Video Group, Ltd.
and Rhinoceros Visual Effects & Design, LLC, defendants in 03
Civ. 1730 and plaintiffs in 04 Civ. 1321, and Cool Beans Digital
Audio, Inc., an additional defendant in 03 Civ. 1730, object.
The principal objections are that (1) Judge Gorenstein
erroneously required defendants in 03 Civ. 1730 to prove an
enforceable beta test site agreement ("BTSA") in order to defeat
summary judgment, rather than to raise a genuine issue of
material fact, and (2) the fact that these defendants acted as a
beta test site alone raises a genuine issue of material fact
requiring denial of both summary judgment motions. These
contentions are without merit.
First, Judge Gorenstein did not require proof of an enforceable
BTSA. Rather, he concluded that the admissible evidence offered
by the Multi-Video parties, even if taken as true and drawing all
inferences reasonably drawn from it, "would not permit a
reasonable jury to find that there is any enforceable agreement
between Multi Video and Sony Electronics other than the SSA [the
System Sale Agreement] which relates to the breach alleged in
Multi Video's complaint" (R&R at 30) and that there was no
"admissible evidence showing that the terms of the Lease do not
govern" (id. at 38). The correct standard was applied by the
Magistrate Judge and, in any case, by this Court.
Second, the Multi Video parties argue that the fact that it
served by mutual agreement as a beta test site, in and of itself,
demonstrates that there is "a genuine issue of material fact as
to whether or not a sale was ever consummated given the
[allegedly] unsuccessful beta test." Obj. 4 (emphasis in
original). Indeed, they contend that "Judge Gorenstein failed to
properly analyze and readily discounted the evidence submitted by
Multi Video" on this point. Id. But a reasonable reading of the
report and recommendation demonstrates precisely the contrary.
The Court has considered all of the objectors' arguments and
found them wanting.
Accordingly, the motion of plaintiff Sony Financial Services,
LLC, for summary judgment in 03 Civ. 1730 (#65) is granted, and
the Clerk is directed to enter judgment for plaintiff and against
defendants, jointly and severally, in the sum of $2,936,887.04
together with prejudgment interest at the rate of $724.16 from
March 13, 2003 to the date of entry of the judgment. The motion
of defendant Sony Electronics Inc. for summary judgment
dismissing the complaint in 04 Civ. 1321 (#5) is granted on the
ground venue is not properly laid in this Court in light of the
forum selection clause in the SSA. Multi Video's motions to
consolidate (04 Civ. 1321 #14) and to strike defendants' jury
demand (03 Civ. 1730 #69) are denied as moot.
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