The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION & ORDER
Plaintiff National Economic Research Associates, Inc. ("NERA") alleges that in April 2007, it contracted with Defendant Purolite "C" Corporation ("Purolite") to provide certain expert witness services to Purolite in connection with a trade secret action pending in the Eastern District of Pennsylvania. (Cmplt. ¶¶ 5-8) NERA further alleges that it provided and billed Purolite for those services, but that Purolite has improperly refused to pay, in violation of the parties' agreement. (Id. at ¶¶ 9-11) The Complaint sets forth claims for breach of contract, quantum meruit, and account stated. Jurisdiction is based on diversity. Pending before this Court is NERA's motion for summary judgment on its account stated claim, in which it seeks $101,885.77 in damages for unpaid fees. For the reasons stated below, NERA's motion will be GRANTED.
NERA "is a professional service firm of consulting economists that provides, among other things, testifying and non-testifying expert services in the field of industrial and financial economics. . . ." (Cmplt. ¶ 1) Purolite, a resin manufacturer, retained NERA in April 2007 in connection with Bro-Tech Corp. t/a the Purolite Company v. Thermax, Inc., No. 05-Civ-2330, (E.D. Pa.).*fn1 (Cmplt. ¶¶ 5, 7; Pltf. R. 56.1 Stat. ¶ 1)*fn2 The retainer agreement Purolite and NERA entered into on April 30, 2007, sets forth NERA's fees and expenses and billing policies. (Pltf. R. 56.1 Stat. ¶ 1; Dunn Aff., Ex. C)
NERA's engagement was terminated in June 2007. (Pltf. R. 56.1 Stat. ¶ 3)*fn3 The parties disagree as to why NERA was terminated. Purolite contends that it terminated NERA "for cause," because NERA "did not perform the work it was retained to perform." (Def. R. 56.1. Stat. ¶¶ 2-3) NERA contends, however, that it was terminated after it refused to support certain inflated damages claims Purolite wished to pursue in the Thermax action. (Apr. 7, 2010 Pltf. Ltr. at 1) The reason or reasons for NERA's termination are not material to its motion for summary judgment on its account stated claim.
On June 20, 2007, Phillip Beutel, a NERA senior vice president, sent an email to Joseph McGovern, Purolite's outside counsel, stating that he understood that NERA's work on the Thermax matter "is complete." Beutel advised McGovern that he would be sending invoices for time billed over the prior two months:
please know that we will be sending to you in the next day or so two invoices -- one each for the consulting and testifying teams -- covering both the May and June billing months. The total charges for NERA's time to date on those two assignments, combined, is about $100,000. [The precise amounts will be reflected on the invoices when they are sent to you.] (Dunn Aff., Ex. G) (bracketed material in original)
Later that day, McGovern sent the following response:
Phil, I am stunned that your charges are anywhere near the level that you indicate. I will discuss it with Purolite when I return from vacation and will, on behalf of Purolite, respond. In the meantime, pls [sic] forward your invoice after you have reviewed it. Joe. (Id.; Pltf. R. 56.1 Stat. ¶ 7)
NERA subsequently sent two invoices to Purolite -- dated June 20, 2007, and June 26, 2007 -- reflecting fees and expenses totaling $101,885.77. (Pltf. R. 56.1 Stat. ¶ 2; Def. R. 56.1 Stat. ¶ 2) It is undisputed that Purolite received these invoices. (Pltf. R. 56.1 Stat. ¶ 4; Def. R. 56.1 Stat. ¶ 4) McGovern never followed up with Beutel, however, and no Purolite representative ever objected to the NERA invoices in any fashion. Purolite did not pay NERA's invoices, however. (Pltf. R. 56.1 Stat. ¶ 9; Def. R. 56.1. Stat. ¶ 9)
Summary judgment is warranted when the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). In deciding a summary judgment motion, the Court "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. General Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). However, a "'party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . .
[M]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist."' See Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting ...