United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
M. WOOD United States District Judge.
Canon Solutions America, Inc. ("Canon") brings this
diversity action against Defendant Lucky Games, Inc.
("Lucky") regarding an agreement between the
parties for the maintenance of a printer leased by Lucky.
Canon alleges that Lucky failed to return thousands of
bottles of printer toner belonging to Canon. Lucky denies
this and asserts a counterclaim for breach of contract. Canon
has now moved for summary judgment. For the reasons stated
below, the Court GRANTS Canon's motion in part.
in September 2010, Lucky entered into a series of maintenance
agreements pursuant to which Canon would provide services and
supplies-including printer toner-for a Canon printer Lucky
leased for use in its printing business. See PI.
56.1 ¶¶ 1, 3, ECF No. 68. In June 2014, the parties
entered into the maintenance agreement at issue here.
Id. ¶ 1 (citing Midgley Decl. Ex. A
("Agreement"), ECF No. 64). Under the terms of the
Agreement, Canon was to provide Lucky with enough toner to
print 500, 000 pages per month. Id.¶3. To the
extent Lucky's toner consumption exceeded that quantity
by more than ten percent, Canon reserved the right to invoice
Lucky for the additional cost. Id. Any unused toner
remained Canon property, and Lucky was obligated to return it
upon termination of the Agreement. Id. ¶5.
a review of the Lucky account in December 2014, Canon
discovered that Lucky's toner orders had exceeded that
ten-percent threshold. Id. ¶ 10. Lucky's
refusal to pay the cost of this excess toner prompted further
investigation by Canon. Id. ¶¶ 11-12.
Canon reviewed Lucky's order history and compared it to
the printer's internal counter, which tracked Lucky's
actual toner usage. Id. ¶¶ 18, 20. Based
on this review, Canon concluded that Lucky had ordered 2, 618
bottles of toner that were never used by the printer. See
February 2015, Canon informed Lucky of this discrepancy, as
well as Lucky's unpaid account balance of $7, 069.92 in
service fees and $123.57 in late fees. Id. ¶
14. The parties then terminated the Agreement. Id.
¶ 17. According to Canon, the Agreement required Lucky
to return any unused toner upon the Agreement's
termination, but Canon reports that Lucky returned only 362
bottles. See Id. ¶ 21. The allegedly missing
bottles of toner form the heart of this dispute.
Relevant Procedural History
filed this action against Lucky on August 20, 2015, before
the Honorable Analisa Torres. See Compl., ECF Nos.
1, 7. By stipulation, Canon amended its complaint on December
5, 2015 and alleged breach of contract, conversion, and
unjust enrichment under New York law. Am. Compl. ¶¶
30-57, ECF No. 22. In its answer, Lucky asserted a
counterclaim for breach of contract. Answer 13-15, ECF No.
28. After discovery, Canon moved for summary judgment. PL
Mot., ECF No. 63. On November 22, 2016, the case was
reassigned to the undersigned.
judgment is appropriate where the record establishes that
there is no "genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). In making this determination,
a court must "construe the evidence in the light most
favorable" to the non-moving party and "draw all
reasonable inferences" in the non-moving party's
favor. Fincher v. Depository Tr. & Clearing
Corp., 604 F.3d 712, 726 (2d Cir. 2010). The moving
party has the burden of showing there is no genuine dispute
of material fact. Jeffreys v. City of New York, 426
F.3d 549, 553 (2d Cir. 2005).
dispute is "genuine" if "the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The Supreme Court and
the Second Circuit have made clear that the existence of a
mere "scintilla of evidence" in support of the
nonmovant's position is not enough to defeat a properly
supported motion for summary judgment. Id. at 252;
see also Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (noting that the
nonmovant "must do more than simply show that there is
some metaphysical doubt as to the material facts");
Wilkins v. Mason Tenders Dist. Council Pension Fund,
445 F.3d 572, 580 (2d Cir. 2006) (quoting McClellan v.
Smith, 439 F.3d 137, 144 (2d Cir. 2006)) (explaining
that summary judgment cannot be defeated "by a factual
argument based on conjecture or surmise").
demonstrate the existence of a genuine issue of material
fact, "[t]he opposing party must come forward with
affidavits, depositions, or other sworn evidence as permitted
by [Rule 56], setting forth specific facts." Rule v.
Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). This
evidence must be sufficiently probative for a reasonable
factfinder to decide in favor of the nonmoving party on
each element of his or her claim or defense. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)
("Rule 56(c) mandates the entry of summary judgment. . .
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case ...."). The nonmoving party
"cannot defeat the motion by relying on the allegations
in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not
credible." Gottlieb v. County of Orange, 84
F.3d 511, 518 (2d Cir. 1996) (citation omitted).
Statute of Limitations
threshold matter, Lucky contends that this action is barred
by the Agreement's statute-of-limitations provision.
Lucky quotes this provision in its briefing, without
indicating that Lucky omitted several words that materially
change the meaning of the Agreement. That is astonishing, and