The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
In this case, plaintiffs AllGood Entertainment, Inc. and AllGood Concerts, LLC ("Plaintiffs" or "AllGood"), bring suit for breach of contract and promissory estoppel based on a failed plan to put together and promote a concert featuring Michael Jackson and his siblings.*fn1
AllGood claims that, in November 2008, they entered into a binding contract with defendants Dileo Entertainment and Touring, Inc. and Frank Dileo (collectively "Dileo Defendants") for a concert featuring Jackson*fn2 and his siblings, and that the contract was breached with resulting damage to Plaintiffs, when Jackson signed an agreement in January 2009 with another concert promoter, AEG. Plaintiffs also brings suit against John Branca and John McClain, Special Administrators of the Estate of Michael Jackson,*fn3 ("Estate Defendant;" both sets of defendants hereafter "Defendants") because they claim that Jackson authorized Dileo Defendants to sign the contracts on his behalf. Defendants move for summary judgment on a variety of grounds, and, for the reasons that follow, their motion is GRANTED and the case is dismissed.
The genesis of this failed performance agreement arose out of a meeting between a group of individuals, including Patrick Allocco, CEO of AllGood Entertainment and Joe Jackson, Jackson's father, in Las Vegas, Nevada in October, 2008. Stmt. of Undisputed Mat. Facts in Supp. of the Mot. For Summ. J. by John Branca and John McClain as Special Administrators of the Estate of Michael Jackson ("Estate 56.1"), ¶ 2; Pls.' R. 56.1 Counter-Stmt. of Undisputed Facts in Opp. To Defs.' Mot. for Summ. J. ("Pls.' 56.1") ¶ 11. Allocco and his associates expressed an interest in putting together a "family reunion" concert with Michael Jackson and his siblings, and Joe Jackson referred them to Frank Dileo. Estate 56.1 ¶ 4; Pls.' 56.1 ¶¶ 37-38. There is no evidence that Jackson or his siblings were notified or aware of the meeting between their father and AllGood; in April 2009, Allocco told another employee of AllGood that Joe Jackson had not seen his son in two years. Estate 56.1 ¶¶ 5-6. Sometime within the next month, Allocco met with Dileo, along with another individual associated with Dileo, Mark Lamicka,*fn5 in Nashville, Tennessee. Pls.' 56.1 ¶ 15. Following this meeting, Allocco and Dileo signed the document at the center of this controversy.
The purported contract, alternatively called a "Binder Agreement" or "Letter of Intent" by the parties, is dated November 21, 2008, and was signed by Allocco and Dileo on November 25 and November 26, respectively. Steinsapir Decl., Ex A. (hereafter "Binder Agreement" or "Binder") at 1.*fn6 The document shows that Allocco signed on behalf of "AllGood Entertainment Inc," while Dileo signed on behalf of "Dileo Entertainment & Touring Inc." Id. at 4. The Binder states: "This letter of Intent [sic] sets forth our agreement and understanding as to the essential terms of the Live Performance of the Jackson Family. Dileo Entertainment & Touring Inc. in said production by AllGood Entrainment Inc./Patrick S. Allocco, CEO. engaged in said production of 'Jackson Family Reunion World Wide Event'." Binder Agreement at 1. It further states that the "Artist Price" is $24 million, which includes payment to a performer for an opening act, but does not specify how the funds will be divided. Id. ¶ 3. It did specify, however that $2 million was to be paid by AllGood to Dileo Entertainment & Touring Inc. "no later than on or before December 31st, 2008 to secure the Jacksons and show good faith" and provided that the funds would be refunded "if the deal cannot be completed," minus certain expenses and costs not to exceed $150,000. Id. ¶ 3(A). It also provided 120 days for Dileo Entertainment & Touring Inc. to acquire "written confirmation from all family members involved including Michael Jackson." Id. ¶ 3(B). The Binder also contained a paragraph titled "Non-competition" which provided that the "artists," would "agree not to consider or agree to perform on stage together prior to the Event and for a period of at least one year following the Event." Id. ¶ 6. No date was set for the event performance, except "TBD in 2009." Id. ¶ 1(b). The parties offer widely divergent interpretations of the document. Plaintiffs argue that it is an enforceable contract that required Jackson and his siblings to perform at a concert on a date in 2009 to be decided later, in consideration for $24 million. By contrast, Defendants assert that it is a letter of intent which was not binding, because it was predicated on the establishment of a later, more specific, contract for Jackson's performance. Defendants note that it was never signed by Jackson or any of his siblings, nor is there any language that purports to sign on their behalf. Estate 56.1 ¶¶ 23-25. AllGood admits that Jackson did not sign, but claims that prior drafts of the Binder Agreement did have language that authorized Dileo to sign for Jackson, and that such language was removed in the final version. Pls.' 56.1 ¶¶ 52-57.
Also relevant to this dispute is a document titled "Confidentiality and Non Disclosure Agreement with Non Compete Clause for the Michael Jackson, Janet Jackson and Jackson Family Reunion World Event." Steinsapir Decl., Ex B (hereafter "Nondisclosure Agreement" or "NDA"). The agreement, signed on or about November 26, 2008, is signed by Allocco, Dileo, and other associates of the two men, Terry Harvey, Mark Lamicka, Ladd Biro, and James McGale. Id. at 3. None of the signature lines purport to authorize any of the individuals to sign on behalf of any other person or entity. Id. The NDA states in part, "[t]he undersigned individual acknowledges that the information contained in the Dileo Entertainment and Touring Agreement. dated November 25, 2008 by and between AllGood Concerts, LLC. and Dileo Entertainmnet and Touring, Inc. is confidential." Id. ¶ 1. It further states that the "purpose of disclosure" is "presenting the undersigned individual with certain valuable, confidential, and propriety information." Id. ¶ 2. The term is for eighteen months and appears to include confidentiality and non-compete clauses. See id. ¶¶ 4, 11, 16. This agreement was likewise not signed by Jackson or any of his siblings. Estate 56.1 ¶ 27.
The planned Jackson Family concert extravaganza never came to be. Plaintiff never paid any money by the December 31, 2008 deadline, nor thereafter. Dileo 56.1 ¶ 5, 7. No "written confirmation from all family members involved including Michael Jackson" was ever obtained by Dileo. Estate 56.1 ¶ 32. AllGood claims they worked diligently to raise the necessary funds in a timely fashion, but balked when they learned on or about December 22, 2008 that Mark Lamicka was being sued for fraud based on issues in a similar event promotion agreement. Pls.' 56.1 ¶ 78-80, 82, 84-85. Plaintiffs also claim that the December 31, 2008 date to provide the initial $2 million was extended to January 15, 2009, and further extended to January 31, 2009. Id. ¶ 86-104. AllGood claims they ultimately refused to pay any of the funds once they learned that Jackson, on or about January 28, 2009, signed an agreement to perform a series of concerts for another concert promoter, AEG. Pls.' 56.1 ¶ 132; Estate 56.1 ¶ 38. These planned concerts did not come to fruition either, as Jackson died on June 25, 2009. Estate 56.1 ¶ 1.
On June 10, 2009, AllGood filed suit with this Court, and brought causes of action for breach of contract, promissory estoppel, and fraud against Dileo Defendants and Estate Defendant, as well as tortious interference with a contract against certain AEG entities. AllGood amended its complaint on October 16, 2009. On June 29, 2010, this Court dismissed the tortious interference and fraud claims, and dismissed the AEG defendants from the case.*fn7 Defendants have now moved for summary judgment on the remaining causes of action.
Summary judgment is warranted if the moving party shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Cordiano v. Metacon Gun Club, Inc. 575 F.3d 199, 204 (2d Cir. 2009); see also Fed.R.Civ.P. 56(c). A material fact is one that will affect the outcome of the suit, and a dispute about a material fact occurs where there is sufficient evidence for a reasonable fact finder to return a verdict for the nonmoving party. See, e.g., Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006). Evidence must be viewed in a light most favorable to the non-moving party, and all inferences must be drawn in their favor. See Cordiano, 575 F.3d at 204. A party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but. must set forth specific facts showing that there is a genuine issue for trial." Sista, 445 F.3d at 169; Fed.R.Civ.P. 56(e). Where the non-moving party bears the burden of persuasion at trial, the moving party may satisfy its burden by "pointing out... that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Tennessee law governs this lawsuit, and there, "a plaintiff seeking damages for an alleged breach of contract must prove: (1) the existence of an enforceable contract; (2) nonperformance amounting to a breach of the contract; and (3) damages caused by the breach of contract." Ervin v. Nashville Peace & Justice Ctr., 673 F.Supp.2d 592, 612 (M.D. Tenn. 2009) (citing, inter alia, Life Care Ctrs. of Am., Inc. v. Charles Town Assocs., Ltd., 79 F.3d 496, 514 (6th Cir. 1996); BancorpSouth Bank, Inc. v. Hatchel, 223 S.W.3d 223, 227 (Tenn. Ct. App. 2006)). Defendants argue that summary judgment is appropriate for two distinct reasons. First, they claim that the Binder Agreement was an unenforceable "agreement to agree." Second, Defendants assert that, even if the Binder is an enforceable contract, AllGood breached the contract first by failing to provide the payments obligated by the agreement, by the listed deadline ...