The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Milton Abeles, Inc. ("Abeles" or "plaintiff") brings this action in diversity*fn1 against Creekstone Farms Premium Beef, LLC ("Creekstone" or "defendant"), asserting claims related to Creekstone's alleged breach of an agreement with Abeles. Specifically, Abeles asserts the following claims against Creekstone under New York law:*fn2 (1) breach of a joint venture agreement; (2) breach of contract; (3) breach of fiduciary duty; and (4) quasicontract.*fn3 Abeles seeks a sum to be determined by the Court but believed to be ten million dollars, in addition to punitive damages and attorney's fees. Creekstone, in turn, has brought a counter-claim against Abeles, alleging the following claims, all under New York law with the exception of the fourth claim: (1) goods sold and delivered; (2) quantum meruit; (3) fraud; (4) violation of the Packers and Stockyards Act of 1921 ("PSA"); and (5) breach of fiduciary duty and/or exclusive distributorship agreement, presuming that the Court determines that such an agreement exists. Creekstone seeks a sum to be determined by the Court but no less than the alleged balance of $703,765.00 owed, in addition to punitive damages, prejudgment interest on both amounts, and attorney's fees.
Creekstone now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for partial summary judgment granting its first and fourth counterclaims, dismissing Abeles' claims in their entirety, and awarding attorney's fees as well as prejudgment interest on the amount owed. Abeles cross-moves for partial summary judgment dismissing Creekstone's first and fourth counterclaims and striking Creekstone's expert report from the record. For the reasons set forth below, the motions by Creekstone and Abeles are denied in their entirety. Both parties have raised genuine issues of material fact on all of the claims and counterclaims, thus precluding the Court from ruling that the claims succeed or fail as a matter of law.
The facts relevant to the instant motions are set forth in the discussion section. They are taken from the parties' depositions, affidavits, exhibits, and from the parties' respective Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. New York, 422 F.3d 47, 50 (2d Cir. 2001).
On July 11, 2006, Abeles filed its complaint in this action before the Supreme Court of the State of New York, Nassau County. On August 11, 2006, Creekstone removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. On November 20, 2006, Abeles filed its second amended complaint, asserting claims of: (1) breach of a joint venture partnership; (2) breach of fiduciary duty; (3) breach of contract; (4) breach of the implied covenant of good faith and fair dealing; (5) conduct amounting to unfair competition; (6) unjust enrichment; and (7) quantum meruit. On December 1, 2006, Creekstone filed a motion to dismiss Abeles' second amended complaint in its entirety. The Court dismissed Abeles' fourth and fifth claims and combined its sixth and seventh claims in a Memorandum and Order issued on May 14, 2007. See Milton Abeles, Inc. v. Creekstone Farms Premium Beef, LLC, No. 06 Civ. 3893 (JFB) (AKT), 2007 WL 1434990, at *8-*9 (E.D.N.Y. May 14, 2007). On May 29, 2007, Creekstone answered the complaint and filed a counterclaim, asserting claims of: (1) goods sold and delivered; (2) quantum meruit; (3) fraud; (4) violation of the Packers and Stockyards Act; and (5) breach of fiduciary duty and/or exclusive distributorship agreement. Abeles answered Creekstone's counterclaim on June 18, 2007. Creekstone moved for partial summary judgment on May 23, 2008. On June 23, 2008, Abeles filed its opposition and crossmoved for partial summary judgment. On July 14, 2008, Creekstone filed its opposition to Abeles' cross motion and its reply. On July 31, 2008, Abeles filed its reply. Oral argument was held on November 4, 2008. On November 18, 2008, defendant submitted a letter and declaration pursuant to the Court's direction. Plaintiff responded on November 21, 2008. This matter is fully submitted.
A. Standard for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, 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 judgment as a matter of law." Fed. R. Civ. P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (noting that summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted); Tufariello v. Long Island R.R., 364 F. Supp. 2d 252, 256 (E.D.N.Y. 2005). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
B. Creekstone's Motion for Summary Judgment Dismissing Abeles' Claims
As stated supra, Creekstone brings the instant motion for summary judgment seeking dismissal of Abeles' remaining claims, which arise from Creekstone's breach of an alleged agreement between the parties for the marketing and distribution of Creekstone's beef product.
1. Facts Alleged by Abeles*fn4
Abeles has asserted that, in or around May of 2003, the parties entered into a joint venture partnership wherein Abeles would promote Creekstone's products by selling them to chain stores and customers to which Creekstone had not previously had access. (Plaintiff's Local Rule 56.1 Statement of Facts in Opposition to the Motion for Summary Judgment ("Pl.'s 56.1") ¶¶ 44-45; R. Abeles Decl. ¶ 3.) Abeles would utilize its host of business contacts in furtherance of the joint venture and Creekstone would fulfill all orders placed by customers as a result of Abeles' efforts in a timely manner. (R. Abeles Decl. ¶ 3.) The parties agreed that Abeles would enjoy the profits from selling Creekstone beef to Abeles' customers and Creekstone would enjoy the profits from selling its beef to Abeles. (Pl.'s 56.1 ¶¶ 62-63.) Accordingly, representatives from the two parties discussed the prices that Creekstone would charge to Abeles and Abeles, in turn, would charge to third parties. (Id. ¶¶ 47, 55-56.) It was further agreed that Abeles would assume the loss of non-payment from its customers and Creekstone assumed the loss of non-payment from Abeles. (Id. ¶ 69.) The parties then devised a joint marketing scheme, targeting specific customers in specific geographic areas, and agreed upon certain rebates, rewards, coupons, discounts and credits to be applied to certain customers under certain circumstances. (Id. ¶ 52; Plaintiff's Opposition Memorandum of Law ("Pl.'s Opp."), Exs. 11-12, 14-15, 18-19, 21, 28.) Specifically, the initial intended geographic scope of the venture was New York, New Jersey, Connecticut and Las Vegas with the option to expand to further markets on a case-bycase basis as such opportunities presented themselves. (Pl.'s 56.1 ¶¶ 82-83.) Richard Abeles, president of Milton Abeles, LLC, only shared the terms of this agreement with other employees on a "need-to-know" basis. (Id. ¶ 46). As a result of these marketing efforts, Abeles alleges that customers such as the food chain stores Balducci's and Price Chopper understood that Abeles and Creekstone were working together to "jointly price the product." (Id. ¶ 47; T. Touissant Decl. ¶ 4; Pl.'s Opp., Ex. 28.)
Pursuant to this alleged agreement, Abeles ordered approximately $30 million dollars worth of Creekstone beef over a period of approximately three years, from June of 2003 through May of 2006. (Pl.'s 56.1 ¶¶ 8, 11.) On or about February of 2006, Wild By Nature, a chain store affiliate of the supermarket corporation King Kullen, began placing orders for Creekstone beef through Abeles, pursuant to Abeles' efforts, (id. ¶¶ 34-35), orders which Creekstone frequently supplied late and with significant shortages. (Id. ¶¶ 38-39.) It is undisputed that on or about May 27, 2006, Abeles learned that Creekstone was selling beef to Wild By Nature through another distributor, Bozzuto's, Inc. (Def.'s 56.1 ¶ 41.) Abeles contends that in selling its product through Bozzuto's, Inc., Creekstone violated the terms of the alleged agreement between the parties by exploiting a contact cultivated by Abeles and selling to a distributor other than Abeles. (Pl.'s 56.1 ¶ 41.) It is undisputed that Abeles then discontinued its orders of Creekstone beef and refused payment for balances outstanding, as discussed infra in the analysis of Creekstone's "goods sold and delivered" counterclaim. (Def.'s 56.1 ¶¶ 22- 23.)
It is further undisputed between the parties that while Abeles was purchasing Creekstone beef, it was also purchasing beef products from other suppliers; however, Abeles maintains that these products were not competitive with Creekstone, as Creekstone sold "Natural Black Angus boxed beef only," while the other suppliers dealt in "carcass beef." (Pl.'s 56.1 ¶ 89.) Therefore, according to Abeles, the fact that Abeles sold beef products supplied by other parties did not infringe upon the agreement that it had with Creekstone.
2. Facts Alleged by Creekstone
Creekstone, in turn, submits that no joint venture or exclusive distributorship agreement ever existed between the parties and, therefore, its decision to sell its product through Bozzuto's, Inc. could not have breached any agreement. Specifically, Creekstone asserts that there was no intent to form such a venture between the parties - a necessary element of a joint venture claim - as evidenced by the fact that first, no individuals at Creekstone intended to form any joint venture with Abeles, (D. Stewart Decl. ¶ 14), second, it is undisputed that even Richard Abeles, President of the Company, was uncertain if he had ever mentioned to any individual at his company that a joint venture and/or exclusive distributorship agreement governed the arrangement between the parties, (Def.'s 56.1 ¶ 46), and third, no outside parties were aware of the terms of the alleged joint venture. (Id. ¶ 47.) Moreover, Creekstone argues that it is undisputed that other indicia of a joint venture and/or exclusive distributorship agreement, such as - (1) joint tax returns (id. ¶ 72); (2) a common bank account (id. ¶ 73); (3) a common board of directors (id. ¶ 75); (4) a separate corporate name (id. ¶ 74); or (5) sharing of customers' identities (Solum Decl., Ex. Y) - were conspicuously absent between the parties during the relevant time period.
Creekstone further asserts that the parties never agreed to share profits and losses, another core component of a joint venture agreement, as it is undisputed that Richard Abeles was unaware of whether Creekstone profited in its sales to Abeles. (Def.'s 56.1 ¶ 62.) Further, he was unable to discuss shared losses incurred by alleged rebates, coupons and discounts conferred to third parties. (Id. ¶ 70.) In that vein, Creekstone notes that Richard Abeles testified first, that the price at which Creekstone sold its product to Abeles was, "generally speaking," "predicated on . . . the status of its inventory," (R. Abeles Dep. at 45:20-46:9), and second, that he did not review the lists of prices charged to third parties with Creekstone "item for item." (Id. at 140:19.)
Further, defendant argues that no joint agreement could have existed because the terms alleged by plaintiff are so indefinite as to render the contract unenforceable. Specifically, defendant argues that there is no evidence of Creekstone's financial share from the venture, aspirational or otherwise, and the evidence of Abeles' share is conflicted, at best, as Richard Abeles testified that the goal was 10% but neither he nor Abeles' expert could verify the accuracy of that projection. (Def.'s 56.1 ¶¶ 78-79.) Further, Abeles could not pinpoint a specific geographic scope for the alleged agreement, offering first that it was "contiguous with [its] contacts and distribution sources in New York, New Jersey, Connecticut, and elsewhere," (id. ¶ 82), then stating that it was on a "case-by-case basis," (id. ¶ 83), and ultimately suggesting that it was "throughout the United States." (Id. ¶ 84.) Creekstone also asserts that Abeles was uncertain of how many entities were party to the alleged agreement, namely, whether its "utensil," Milton Abeles, LLC, was a joint venturer as well, because Richard Abeles first testified that the entity was not a party to the agreement but Abeles' expert calculated sales by that entity in his damages analysis. (Id. ¶¶ 86-88.)
Finally, according to Creekstone, Abeles' purchase of tens of millions of dollars of beef product from other meat suppliers that was distributed in the same geographic area as Creekstone beef during the relevant time period belies its assertion that Abeles and Creekstone had formed a joint venture and/or exclusive distributorship relationship. (Id.¶ 91.)
a. Breach of Joint Venture
Creekstone seeks summary judgment on Abeles' first claim that Creekstone breached a joint venture agreement and/or exclusive distributorship agreement between the two parties. Creekstone submits that the alleged agreement fails as a matter of law because the parties lacked the requisite intent to form a joint venture, there was no sharing of profits and losses between the parties, and the alleged agreement was too indefinite to be enforceable. Because there are disputed issues of material fact on all of the aforementioned issues, the Court cannot determine as a matter of law that there was no such agreement or resultant breach and, therefore, summary judgment must be denied.
As the Second Circuit has observed, under New York law:
The indicia of the existence of a joint venture are: acts manifesting the intent of the parties to be associated as joint venturers, mutual contribution to the joint undertaking through a combination of property, financial resources, effort, skill or knowledge, a measure of joint proprietorship and control over the enterprise, and a provision for the sharing of profits and losses.
Brown v. Cara, 420 F.3d 148, 159-60 (2d Cir. 2005) (quoting Richbell Information Servs., Inc. v. Jupiter Partners, L.P., 765 N.Y.S.2d 575, 584 (N.Y. App. Div. 2003)); see also SCS Commc'ns, Inc., v. Herrick Co., Inc., 360 F.3d 329, 341 (2d. Cir. 2004). "The absence of any one element 'is fatal to the establishment of a joint venture.'" Kidz Cloz, Inc. v. Officially for Kids, Inc., 320 F. Supp. 2d 164, 171 (S.D.N.Y. 2004) (citation omitted). The Court will examine each of these elements in turn.
i. Intention to Form a Joint Venture
Parties can evince their intent to be bound in a joint venture through a written or oral agreement. See id.; Zeising v. Kelly, 152 F. Supp. 2d 335, 347 (S.D.N.Y. 2001) ("If the oral agreement entered into by the parties was a joint venture, it is not subject to the Statute of Frauds and therefore, may be enforceable.") (citing Shore Parkway Assoc. v. United Artists Theater Circuit, Inc., No. 92 Civ. 8252 (JFK), 1993 WL 361646, at *3 (S.D.N.Y. Sept. 14, 1993) ("[T]he fact that the alleged joint venture . . . was entered into orally does not jeopardize its status as a joint venture."), and Campo v. First Nationwide Bank, 857 F. Supp. 264, 272 (E.D.N.Y. June 30, 1994)). Intent need not be express, but "may be . . . implied . . . from the totality of the conduct alleged." Richbell, 765 N.Y.S.2d at 584 (citing Mendelson v. Feinman, 531 N.Y.S. 2d 326, 328 (N.Y. App. Div. 1988)); see SCS Commc'ns, 360 F.3d at 342; see also Sea Carriers Corp. v. Empire Programs, Inc., No. 04 Civ. 7395, 2008 U.S. Dist. LEXIS 49205, at *32 (S.D.N.Y. June 24, 2008); DIRECTV Group, Inc. v. Darlene Inv., LLC, No. 05 Civ. 5819 (WHP), 2006 WL 2773024, at *6 (S.D.N.Y. Sept. 27, 2006). Indeed, where the alleged ...