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Tycoons Worldwide Group Public Co., Ltd. v. JBL Supply Inc.

June 16, 2010

TYCOONS WORLDWIDE GROUP (THAILAND) PUBLIC CO., LTD., PLAINTIFF,
v.
JBL SUPPLY INC. ET AL, DEFENDANTS.



MEMORANDUM OPINION AND ORDER

Plaintiff brought this action for breach of contract and other related causes of action against JBL Supply, Inc. ("JBL") and a number of individuals and entities whom plaintiff alleges are alter egos of JBL. Plaintiff alleges that JBL failed to pay plaintiff certain sums due under contracts for the purchase of screws. Plaintiff now moves for the entry of partial summary judgment against JBL in the amount of $204,791.82. JBL and Jeffrey Matza, its president (collectively, the "JBL Defendants"), cross-move (i) for an order suppressing Matza's deposition transcript and precluding its use in connection with plaintiff's motion for partial summary judgment, and (ii) for partial summary judgment dismissing plaintiff's alter ego claims against Matza. For the reasons stated below, plaintiff's motion [24] for summary judgment against JBL in the amount of $204,791.82 is granted; the JBL Defendants' cross-motion [38] to suppress Matza's deposition transcript is denied; and the JBL Defendants' cross-motion [38] to dismiss plaintiff's claims against Matza is granted.

I. BACKGROUND

The following facts appear to be undisputed, except as noted otherwise. Plaintiff is a corporation organized under the laws of Thailand which manufactures and distributes screws and bolts, among other things. (Pl. 56.1 Stmt. ¶ 1.) JBL is a New York corporation in the wholesale industrial supplies business. (Id. ¶ 4.) Plaintiff and JBL had an ongoing business relationship, whereby JBL purchased screws from plaintiff and, in return for payment, plaintiff shipped these orders. (Id. ¶ 8.) At issue in this litigation are two specific sales contracts between plaintiff and JBL dated February 13, 2007 (the "February 13 Agreement") and February 20, 2007 (the "February 20 Agreement"), respectively (collectively, the "Agreements"). The Agreements were executed by Matza, the President of JBL. (Id. ¶ 10.)

Pursuant to the February 13 Agreement, JBL ordered and plaintiff agreed to ship and arrange telex release to JBL of seven containers of screws (numbered JBL-85, JBL-91, JBL-92, JBL-95, JBL-96, JBL-97, and JBL-99). (See O'Reilly Aff. Ex. D.) In exchange, JBL agreed to pay plaintiff a total of $182,129.33 for the seven containers. (See id.) It is undisputed that plaintiff subsequently shipped and released five containers of screws (JBL-85, JBL-91, JBL-92, JBL-96, and JBL-97) to JBL, which JBL accepted without objection, but that JBL failed to pay plaintiff for two of those five containers (JBL-96 and JBL-97), which together were invoiced at $58,201.73, because JBL lacked sufficient funds. (See Pl. 56.1 Stmt. ¶¶ 12-18; Def. 56.1 Counter-Stmt. ¶¶12-18.) The parties dispute whether the two remaining containers (JBL-95 and JBL-99), invoiced at $42,422.78, were received by JBL. (See Pl. Br. in Supp. of Mot. for Summ. Judg. at 2.)

Pursuant to the February 20 Agreement, JBL ordered and plaintiff agreed to ship and arrange telex release to JBL of six more containers of screws. (See O'Reilly Aff. Ex. E.) In exchange, JBL agreed to pay plaintiff $146,590.09. (See id.) It is undisputed that these six containers were shipped and released by plaintiff, and accepted without objection but not paid for by JBL. (See Pl. 56.1 Stmt. ¶¶ 19-28; Def 56.1 Counter-Stmt. ¶¶19-28.) However, JBL claims that there were significant delays by plaintiff in releasing the containers from both shipments, which caused JBL to incur demurrage costs that it should not otherwise have incurred. (See Def. 56.1 Counter-Stmt. ¶¶ 13, 16, 18, 23, 25, 28.)

On December 1, 2008, plaintiff brought this action against JBL and a number of other defendants whom plaintiff alleges are alter egos of JBL,*fn1 demanding $247,218.60 for breach of contract, violations of U.C.C. § 2-101, unjust enrichment, book account, and breach of the covenant of good faith and fair dealing.*fn2 Discovery in this case is ongoing. The parties concede that there is a factual dispute as to whether containers JBL-95 and JBL-99 were actually delivered by plaintiff and accepted by defendant, which precludes summary judgment on plaintiff's claims relating to those two containers. Plaintiff maintains, however, that there is no factual dispute that would prevent the entry of summary judgment that JBL owes plaintiff for all six containers covered by the February 20 Agreement, and for the two containers from the February 13 Agreement which were accepted but not paid for (JBL-96 and JBL-97), which together were invoiced at $204,791.8. Consequently, plaintiff asks this Court to enter summary judgment against JBL in the amount of $204,791.82.

The JBL Defendants oppose plaintiff's motion, arguing that plaintiff did not submit sufficient evidence to be entitled to summary judgment under Rule 56, or in the alternative, that issues of fact preclude the entry of summary judgment. The JBL Defendants cross-move (i) for an order suppressing and precluding use of the transcript from Matza's deposition in connection with the pending motions on the ground that plaintiff failed to comply with Rules 30(e)(1) and 30(f) of the Federal Rules of Civil Procedure governing deposition transcripts; and (ii) for partial summary judgment dismissing plaintiff's breach of contract claims against Matza on the ground that there is insufficient evidence in the record to hold Matza personally liable for JBL's conduct under an alter ego theory of liability.

II. DISCUSSION

1. Summary Judgment

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Partial summary judgment is permitted under Rule 56(d) and is governed by the same standards as a motion for summary judgment under Rule 56(c). See James W. Moore et al., Moore's Federal Practice, § 56.40[2] (3d ed. 2008). In reviewing the record on a summary judgment motion, the district court must assess the evidence in "the light most favorable to the non-moving party," resolve all ambiguities, and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party must demonstrate that no genuine issue exists as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323--25 (1986). As to an issue on which the non-moving party bears the burden of proof, "the burden on the moving party may be discharged by 'showing'-that is, point out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325 (rejecting a construction of Rule 56(c) that would require the party moving for summary judgment to produce evidence affirmatively establishing the absence of a genuine issue of material fact with respect to an issue on which the nonmoving party bears the burden of proof).

If the moving party satisfies its burden of proof, the "non-movant may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial." Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996); see Celotex, 477 U.S. at 322--23. In seeking to show that there is a genuine issue of material fact for trial, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 256--57; Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial. See Celotex, 477 U.S. at 324; H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991).

2. The Summary Judgment Record

As a threshold matter, the JBL Defendants argue that plaintiff's motion for summary judgment is not properly supported and must be denied on this basis alone. The JBL Defendants argue that plaintiff must submit an affidavit from one of its representatives with personal knowledge of the transactions between plaintiff and JBL in order to prevail on its motion. However, Rule 56(a) clearly states that a party may move for summary judgment "with or without supporting affidavits." Fed. R. Civ. P. 56(a). Here, plaintiff has supported its motion through citation to the Agreements and to the transcript of the deposition of JBL's President, Jeffrey Matza. The JBL Defendants contend, however, that plaintiff cannot support its motion through citation to Matza's deposition transcript because plaintiff allegedly did not comply with Rules 30(e) and 30(f)(1) governing deposition transcripts, such that the transcript should be suppressed. To determine whether plaintiff's motion is properly supported, the Court must decide whether to suppress Matza's deposition transcript, since if it does so, plaintiff's motion would not be adequately supported.

The facts relevant to the JBL Defendants' motion to suppress, which appear to be undisputed, are as follows: Matza's deposition was taken over the course of two days on June 8, 2009 and July 20, 2009. The JBL Defendants contend that Matza and/or his counsel requested a copy of the transcript for Matza to review and execute at the end of the deposition, and renewed that request thereafter, but that plaintiff did not provide them with a copy of the transcript before filing its motion for summary judgment. (See Matza Decl. ¶ 6; Kronick Decl. ¶ 3.) On October 9, 2009, plaintiff filed its motion for summary judgment and attached excerpts from Matza's deposition thereto. Plaintiff's filing did not include a certification from the court reporter that the transcript accurately recorded Matza's testimony. It appears that the JBL Defendants were not provided with a full copy of Matza's deposition ...


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