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Bell Independent Power Corp. v. Owens-Illinois, Inc.

United States District Court, W.D. New York

May 22, 2013


For Plaintiff: James A. Hobbs, Esq., James Scott Wolford, Esq., The Wolford Law Firm, LLP, Rochester, NY.

For Defendants: Michael A. Oropallo, Esq., Hiscock & Barclay, LLP, One Park Place, Syracuse, NY.


Page 342


CHARLES J. SIRAGUSA, United States District Judge.


Bell Independent Power Corp. (" Plaintiff" or " Bell Independent" ) originally brought this action against Defendants Owens-Illinois (" Owens-Illinois" ) and Owens Brockway Glass Container Inc. (collectively, " Defendants" ) in New York State Supreme Court, Monroe County, seeking damages alleged to arise out of common law claims for breach of contract, quantum meruit, and unjust enrichment. ECF No. 1. This case was removed to this Court by Defendants on February 1, 2010.

Currently pending before the Court is Defendants' motion for summary judgment, ECF No. 29, seeking dismissal of the Plaintiff's complaint.[1] For the reasons that follow, Defendants' motion for summary judgment is granted, and the complaint is dismissed.

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Energy Savings Proposals

Defendants operate a glass container manufacturing operation located in Auburn New York. Plaintiff is a New York company started by Joseph Bell in 2005 with the objectives of developing alternative energy sources and technology, and assisting companies with significant power needs, such as Owens-Illinois.

Sometime in 2005, Plaintiff approached Defendants with several ideas for energy savings at Defendants' Auburn plant, and subsequently visited the premises and prepared for Defendants a proposal to recapture heat loss during glass-making operations. Ultimately, the proposal was not pursued by either party after it was determined that it would not be cost-effective.

Plaintiff then suggested that it could obtain energy rate reductions for the Defendants' Auburn plant and persuaded Defendants' representatives to attend a meeting in Albany, New York, in February, 2006, to explore a rate reduction for its electric costs with the New York State Public Service Commission (" PSC" ).[3] Defendants signed a letter prepared by Plaintiff dated December 7, 2005, concerning electric energy rate reduction, and provided terms for compensation to Plaintiff (" the Letter Agreement" ).

A second meeting in Albany, New York, took place on April 26, 2006, and former Owens-Illinois President of North American Operations, Matthew Longthorne (" Longthorne" ), attended this meeting.[4] The Commissioner of the New York PSC, who was also in attendance at the Albany meeting, advised the parties that obtaining the electric rate reduction might not be feasible, so Defendants proceeded to hire an attorney to present a petition to the PSC seeking a reduced rate. Defendants and Plaintiff continued to work together on the rate reduction from April to sometime in late-2006, during which Defendants paid the cost of a lobbyist and an attorney in connection with the petition to the PSC. However, when Plaintiff learned that the petition was likely to be denied, it advised Defendants to withdraw it.

Economic Development Grant Applications

According to Plaintiff, immediately after the Albany meeting with the PSC Commissioner, Longthorne directed Plaintiff to pursue any available savings for the Auburn plant, including grants,[5] in addition to the energy rate reductions. Walter Dep. at 71, 111-12; Bell Dep. at 54-55. Plaintiff maintains that Longthorne agreed that Plaintiff would be compensated for all savings obtained for Auburn in the manner provided by the December, 2005 Letter Agreement. Id. Longthorne, though, denies any recollection of what occurred during those discussions, and further denies that he agreed to compensating Plaintiff with respect to the grants. Longthorne Dep. at 33, 46-47. Gerard Walter (" Walter" ) of Bell Independent testified that he began the process of applying for grants for Defendants immediately after the April 26, 2006, meeting in Albany. He further testified that the basis for the twenty-five percent commission " was an agreement by

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Matthew Longthorne at the April 26th meeting," but that the issue of compensation was never reduced to writing. Walter Decl. ¶ ¶ 9-11; Pl. Exs. 1-3; Walter Dep. at 71-72.

In April, 2006, Walter provided Defendants with a letter application for a grant from the Empire State Development Corporation (" ESDC" ). Defendants signed the letter and sent it to ESDC on June 1, 2006. That month, Walter, Steven Gable (" Gabel" ) and David Daum (" Daum" ) of Owens-Illinois completed a supplemental worksheet required for the ESDC grant application. Gable directed Walter to complete the portions of the worksheet of which he had knowledge and then to return the worksheet to him to complete.

Although after April, 2006, Defendants paid the lobbying firm Bolton-St. Johns a monthly fee of $8,500.00 for services, they deny that such services were for the purpose of obtaining grants. Def. Reply Stmt. ¶ 44, ECF No. 41. However, Plaintiff asserts that the majority of the lobbying firm's work was, indeed, focused on obtaining grants. Pl. Stmt. ¶ 44, ECF No. 36. According to Plaintiff, Defendants were informed that after April, 2006, Bolton-St. Johns was working to pursue grants on their behalf. Pl. Exs. 10-12. Defendants, on the other hand, claim that the lobbyists' efforts were in connection with pursuing the electric rate reduction previously discussed by the parties. Def. Stmt. ¶ 45, ECF No. 31.

On June 21, 2006, in response to an inquiry from Plaintiff, Cayuga County emailed Plaintiff and Gable to inform them about the possibility of a grant up to $1 million for Owens-Illinois. In July, 2006, Walter, of Bell Independent, was directed by Defendants to work with Daum, of Owens-Illinois, on the Cayuga County grant application.

In July, 2006, ESDC offered Defendants a $650,000.00 grant. Shortly thereafter, Walter contacted Samanthia Rousos (" Rousos" ), Global Sourcing Energy Manager for Owens-Illinois, and stated his intention to request additional funds from the ESDC.

Subsequently, in August, 2006, Walter provided Rousos with a draft letter seeking grant funds from New York State Senator Michael F. Nozzolio (" Senator Nozzolio" ), which Rousos reviewed and provided suggested corrections. In September, 2006, Walter was informed by Bolton-St. Johns that Senator Nozzolio's office had offered $250,000.00 in matching funds, and that a letter directly from Owens-Illinois would be required to finalize the transaction. Walter, in turn, sent an email to Rousos informing her of the need for a letter from Defendants to Senator Nozzolio. Attached to that email was a listing of Bolton-St. Johns' work on behalf of Owens-Illinois. Pl. Ex. 10. Defendants state that Owens-Illinois paid a fee to Bolton-St. Johns for the lobbying work, and that Plaintiff was not involved in the lobbying activity. Def. Reply Stmt. ¶ 41.

On September 21, 2006, Rousos directed Walter to have the letter to Senator Nozzolio drafted from her. Walter did so, emailing Rousos the draft letter and stating that Bolton-St. Johns had reviewed and approved the letter.

Defendants also provided Walter with the information he requested for the purpose of completing an application for a grant from New York State Electric and Gas (" NYSEG" ). Ultimately, NYSEG offered Defendants a grant of $750,000.00.

In November of 2006, ESDC increased its grant offer to Defendants to $1,250,000.00. Rousos later asked Walter to contact ESDC to determine whether some of the terms of its offer could be clarified or changed. In an email to Gabel

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of Owens-Illinois and other Owens-Illinois employees, Rousos stated that, after speaking with Walter, she believed that Defendants should sign the ESDC grant offer. In the same email, Rousos recommended that " a project coordinator work closely with [Gabel] and Jerry Walter for reimbursement," and further stated, " [p]lease advise requirements for being able to receive the $750,000 grant from NYSEG also." Pl. Ex. 20. Defendants specifically deny that any agreement was reached or discussed for services related to the grants by anyone at Owens-Illinois. Def. Reply Stmt. ¶ 51.

On November 3, 2006, Joseph Bell emailed a " scorecard" to Longthorne and others at Owens-Illinois listing Plaintiff's progress on the grants it was pursuing, including the grants from ESDC, NYSEG, Senator Nozzolio, and Cayuga County.

The parties met again in Toledo, Ohio, in November and December of 2006 to discuss whether Defendants would invest the initial $20 million in capital costs to rebuild the furnaces at the Auburn plant.

In a letter dated November 15, 2006, Joseph Bell proposed to Longthorne that Defendants pay Plaintiff a fixed fee of $250,000.00 for its role in arranging economic development monies for Defendants, plus certain costs incurred by Plaintiff. In a December, 2006 email, Longthorne explained to Brian Flynn (" ...

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