ADP Dealer Services, Inc. v. Planet Automall, Inc., No. 1:2009cv00185 - Document 61 (E.D.N.Y. 2012)
Court Description: ORDER granting 31 Motion for Summary Judgment. For all of the foregoing reasons, ADP's motion for summary judgment is hereby GRANTED, and Automall's affirmative defenses are hereby DISMISSED. This case is referred to Magistrate Judge Reyes for an inquest to determine the appropriate damage award. Ordered by Senior Judge I. Leo Glasser on 1/12/2012.
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ADP Dealer Services, Inc. v. Planet Automall, Inc. Doc. 61 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x ADP DEALER SERVICES, INC., MEMORANDUM AND ORDER Plaintiff, 09 Civ. 0185 (ILG) (RER) - against PLANET AUTOMALL, INC., Defendant. ------------------------------------------------------x GLASSER, Senior United States District Judge: Plaintiff ADP Dealers Services, Inc., (“ADP”) brings this diversity action for breach of contract and unjust enrichm ent against defendant Planet Autom all, Inc. (“Autom all”) in connection with three agreem ents the parties executed in 20 0 7. Currently before the Court is ADP’s m otion for sum m ary judgm ent on its breach of contract claim and Autom all’s affirm ative defenses. For the reasons that follow, ADP’s m otion is hereby granted. I. BACKGROU N D The facts of this action are relatively sim ple, and unless otherwise noted, are undisputed. ADP, a Delaware corporation with its principal place of business in Rhode Island, provides digital m arketing, internet, and related services to autom obile dealerships. Com pl. dated Oct. 27, 20 0 8 ¶ 1 (Dkt. No. 1).1 Autom all, a New York corporation with its principal place of business in Long Island City, New York, is an 1 By Order dated J uly 27, 20 11, Magistrate J udge Reyes substituted ADP Dealer Services, Inc. for ADP, Inc. as plaintiff in this action. Like ADP, Inc., ADP Dealer Services is also a Delaware corporation. Letter to Magistrate J udge Reyes dated J uly 15, 20 11 Ex. C (Dkt. No. 15). 1 Dockets.Justia.com autom obile dealership owned and operated by Kinney Galani (“Galani”). Com pl. ¶ 2; Declaration of Gene Loop dated Apr. 15, 20 10 (“Loop Decl.”) ¶ 3 (Dkt. No. 33). Galani also owns and operates other autom obile dealerships, including one called KG Suzuki located on the sam e prem ises as Autom all in Long Island City. Loop Decl. ¶ 3. On or about August 30 , 20 0 7, Galani executed on behalf of Autom all a digital m arketing services agreem ent (“DMS agreem ent”) with BZ Results (“BZ”), one of ADP’s subdivisions. Plaintiff’s Rule 56.1 Statem ent (“Pl.’s 56.1 Statem ent”) ¶ 1 (Dkt. No. 37); Declaration of Kinney Galani in Opposition to Sum m ary J udgm ent dated J une 14, 20 10 (“Galani Decl.”) ¶ 1 (Dkt. No. 42). The DMS agreem ent obligated BZ to, am ong other things, design a website for Autom all in exchange for paym ent of $ 3,30 0 .0 0 per m onth for a non-cancelable period of 36 m onths. Pl.’s 56.1 Statem ent ¶ 2; Loop Decl. Ex. A, at 10 ¶¶ 2(b), 3(b). Galani testified during his deposition, however, that it was his understanding that the agreem ent did not have a 36 m onth term but instead a “30 -day out.” Declaration of Michael S. Re dated Apr. 16, 20 10 (“Re Decl.”) Ex. F. (Galani Dep.), at 182 (Dkt. No. 35). After Galani approved BZ’s design of the Autom all website in m idSeptem ber 20 0 7, it becam e operational and began receiving visitor traffic. Pl.’s 56.1 Statem ent ¶¶ 3-5. Although the DMS agreem ent was initially drafted for KG Suzuki, according to Gene Loop (“Loop”), one of BZ’s sales executives, Galani eventually decided that he wanted a new website for Autom all instead, and the unexecuted draft agreem ent between KG Suzuki and BZ ultim ately becam e the agreem ent between Autom all and BZ—the agreem ent that Galani executed. Loop Decl. ¶ 6. Galani claim s that the DMS agreem ent was to provide for the creation of a joint website for both Autom all and KG Suzuki and that Loop and Rick Friedm an (“Friedm an”), another BZ em ployee, 2 represented as m uch during negotiations before the agreem ent’s execution. Galani Decl. ¶ 5. Loop and Friedm an deny m aking any such representation. Loop Decl. ¶ 9; Declaration of Rick Friedm an dated Apr. 15, 20 10 (“Friedm an Decl.”) ¶ 7 (Dkt. No. 32). They do acknowledge, however, that BZ eventually provided KG Suzuki with certain services as a professional courtesy, including a redesign of the KG Suzuki website that becam e operational on J anuary 24, 20 0 8. Loop Decl. ¶¶ 17-18, 20 ; Friedm an Decl. ¶ 8. Galani later executed on behalf of Autom all a search engine m arketing agreem ent (“SEM agreem ent”) with BZ. Pl.’s 56.1 Statem ent ¶ 15; Loop Decl. Ex. C.2 The SEM agreem ent obligated BZ, am ong other things, to create a search engine optim ization cam paign for Autom all in exchange for a m onthly paym ent of $ 3,0 0 0 for an initial term of 12 m onths. Pl.’s 56.1 Statem ent ¶¶ 15-17; Loop Decl. Ex. C, at 2 ¶ 2. 3 Beginning in October 20 0 7, BZ’s search engine m arketing cam paign becam e operational. Pl.’s 56.1 Statem ent ¶ 19. ADP claim s that the cam paign becam e operational pursuant to the SEM agreem ent, id., while Autom all claim s, based on alleged discussions with Loop, that the search engine optim ization services were included as part of the DMS agreem ent. 2 It is unclear when precisely Galani executed the SEM agreem ent. ADP states that he did so on Septem ber 25, 20 0 7, and the SEM agreem ent itself bears this date. Pl.’s 56.1 Statem ent ¶ 15. Although Galani stipulated during his deposition that he did in fact execute the agreem ent “at som e point,” it is unclear when he did so. Re Decl. Ex. F. (Galani Dep.), at 171-72. 3 Search engine optim ization “basically m eans taking steps to ensure that your website is shown first, or as close to first as possible, when the topic of your website is searched for on an internet search engine such as Google or Yahoo!.” Ascentive, LLC v. Opinion Corp., No. 10 Civ. 4433 (ILG) (SMG), 20 11 WL 6181452, at *2 n.5 (E.D.N.Y. Dec. 13, 20 11) (citation and internal quotation m arks om itted). 3 Defendant’s Rule 56.1 Statem ent (“Def.’s 56.1 Statem ent”) ¶ 19 (Dkt. No. 41); Galani Decl. ¶ 7. On or about October 3, 20 0 7, Galani executed on behalf of Autom all a third agreem ent with BZ—a “virtual salesperson” agreem ent (“VS agreem ent”). Pl.’s 56.1 Statem ent ¶ 22-23; Loop Decl. Ex. D. In exchange for m onthly paym ents of $ 195, BZ agreed to equip Autom all’s website with a video tour guide feature that leads custom ers through the site. Loop Decl. Ex. D. The term of the agreem ent was to be coterm inous with the term of the “Digital Marketing Agreem ent previously executed” by Autom all— the DMS agreem ent. Id. Autom all claim s that the tour guide feature was to be included as part of the DMS agreem ent—again, based, am ong other things, on discussions with BZ em ployees. Def.’s 56.1 Statem ent ¶ 22; Galani Decl. ¶ 7. BZ billed Autom all for the services and products provided pursuant to each of the agreements. Declaration of Eric L. Pearson dated Apr. 15, 20 10 (“Pearson Decl.”) ¶ 13 (Dkt. No. 34). Billing and invoicing under the various agreem ents began on Septem ber 30 , 20 0 7 for the DMS agreem ent and on October 31, 20 0 7 for the VS and SEM agreem ents. Id. ¶ 13-14. Galani on behalf of Autom all received m onthly invoices through May 20 0 8 which Autom all failed to pay. Pl.’s 56.1 Statem ent ¶ 29. After m aking a num ber of fruitless attem pts to collect paym ent, ADP on October 27, 20 0 8 filed suit in the U.S. District Court for the District of Rhode Island, asserting claim s for breach of contract and unjust enrichm ent and seeking dam ages of $ 159,594.27, the am ount due under the various agreem ents between BZ and Autom all, 4 along with interest, attorney’s fees and costs. Com pl. ¶¶ 13-19; Pearson Decl. ¶ 21.4 Autom all filed its answer on Decem ber 15, 20 0 8, asserting several affirm ative defenses.5 By consent order dated J anuary 16, 20 0 9, the action was transferred to this district. ADP on April 16, 20 10 filed its subm issions in support of sum m ary judgm ent on its breach of contract claim and Autom all’s affirm ative defenses. Plaintiff’s Mem orandum of Law in Support of Sum m ary J udgm ent dated Apr. 16, 20 10 (“Pl.’s Mem .”) (Dkt. No. 36). After being granted several extensions to do so, Autom all on J une 18, 20 10 filed its opposition papers. Defendant’s Mem orandum of Law in Opposition to Plaintiff’s Motion for Sum m ary J udgm ent dated J une 17, 20 10 (“Def.’s Opp’n”) (Dkt. No. 51). On J uly 28, 20 10 , ADP filed its reply. Reply Mem orandum of Law in Further Support of Plaintiff’s Motion for Sum m ary J udgm ent dated J uly 28, 20 10 (Dkt. No. 55). II. D ISCU SSION ADP m aintains that sum m ary judgm ent on its breach of contract claim is appropriate because the language of the relevant agreem ents is clear and unam biguous and there is no dispute that (1) Galani executed the agreem ents on behalf of Autom all; (2) ADP perform ed its obligations under the agreem ents; and (3) Autom all refused to 4 5 There appears to be a discrepancy in the am ount of dam ages ADP seeks. ADP’s com plaint states that ADP seeks $ 159,594.27 plus interest, attorney’s fees, and costs, Com pl. ¶ 12, while the Pearson Declaration states that ADP seeks $ 171,426.88 along with interest, attorney’s fees, and costs, Pearson Decl. ¶ 21. Autom all on J une 29, 20 0 9 supplem ented the answer by filing a counterclaim for breach of contract. The parties on October 5, 20 0 9 consented to the dism issal of the counterclaim with prejudice pursuant to Fed. R. Civ. P. 41(a)(2) and 41(c). The Court so orders this stipulation, and Autom all’s counterclaim is therefore dism issed with prejudice. 5 pay ADP for the services it received. Pl.’s Mem . at 3-5. ADP further argues that the parol evidence rule bars Autom all’s attem pts to use Galani’s statem ents concerning alleged pre-contractual discussions to vary the agreem ents’ term s or to create issues of m aterial fact that would preclude sum m ary judgm ent. Pl.’s Mem . at 6. The Court turns to these contentions below. A. Le gal Stan d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “‘An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party. A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.’” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 20 0 8)). The m oving party bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When the burden of proof at trial would fall on the nonm oving party, it ordinarily is sufficient for the m ovant to point to a lack of evidence to go to the trier of fact on an essential elem ent of the nonm ovant’s claim . Id. at 322-23. To defeat a m otion for sum m ary judgm ent, the non-m oving party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts,’” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 20 11) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 10 6 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot “‘rely 6 on conclusory allegations or unsubstantiated speculation.’” Id. (quoting Fed. Deposit Ins. Corp. v. Great Am . Ins. Co., 60 7 F.3d 288, 292 (2d Cir. 20 10 )). A court deciding a m otion for sum m ary judgm ent m ust “‘construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.’” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quoting William s v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 20 0 4)). “‘Credibility determ inations, the weighing of the evidence, and the drawing of legitim ate inferences from the facts are jury functions, not those of a judge.’” Kaytor v. Elec. Boat Corp., 60 9 F.3d 537, 545 (2d Cir. 20 10 ) (quoting Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 , 120 S. Ct. 20 97, 147 L. Ed. 2d 10 5 (20 0 0 )). Moreover, in cases such as this one involving the interpretation of contractual term s, sum m ary judgm ent is appropriate only if the language of the contract is plain and unam biguous, considered in light of the context and structure of the agreem ent as a whole. See, e.g., Miller Marine Servs., Inc. v. Travelers Prop. Cas. Ins. Co., No. 0 4 Civ. 5679 (ILG), 20 0 5 WL 2334385, at *5 n.3 (E.D.N.Y. Sept. 23, 20 0 5) (citing Brass v. Am . Film Techs., Inc., 987 F.2d 142, 148-49 (2d Cir. 1993)). The threshold issue here is whether the language of the DMS, SEM, and VS agreem ents is unam biguous. Under both New J ersey and Rhode Island law, this inquiry also bears on whether the Court m ay consider extrinsic evidence in determ ining the m eaning of the agreem ents—as Autom all contends it m ust. See, e.g., Def.’s Opp’n at 3.6 6 A federal court sitting in diversity applies the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S. Ct. 10 20 , 85 L. Ed. 1477 (1941). Under New York Law, “[a]bsent fraud or a violation of public policy, a court is to apply the law selected in the contract as long as the state selected has 7 B. Bre ach o f Co n tract Whether the Court applies New J ersey or Rhode Island law, the sam e principles of contract interpretation guide the construction of the agreem ents at issue in this case. The Court will first determ ine as a m atter of law which category the agreem ents’ term s fall into—clear or am biguous. Hill v. Com m erce Bancorp, Inc., No. 0 9 Civ. 3685 (RBK) (J S), 20 10 WL 2539696, at *5 (D.N.J . J une 17, 20 10 ) (citing Schor v. FMS Fin. Corp., 357 N.J . Super. 185, 814 A.2d 110 8, 1112 (App. Div. 20 0 2) and Mellon Bank, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d 10 0 1, 10 11 (3d Cir. 1980 )); Garden City Treatm ent Ctr., Inc. v. Coordinated Health Partners, Inc., 852 A.2d 535, 541 (R.I. 20 0 4). A term is “am biguous if it is subject to reasonable alternative interpretations.” Taylor v. Cont’l Grp. Change in Control Severance Pay Plan, 933 F.2d 1227, 1232 (3d Cir. 1991); accord Garden City, 852 A.2d 542 (“[T]he question is not whether there is an am biguity in the m etaphysical sense, but whether the language has only one reasonable m eaning when construed, not in a hypertechnical fashion, but in an ordinary, com m on sense m anner.”). If a court determ ines that contractual language is am biguous, “New J ersey law perm its this Court to consider extrinsic evidence ‘in determ ining the intent and m eaning sufficient contacts with the transaction.” Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 393 (2d Cir. 20 0 1). Neither party disputes the applicability of New J ersey law to the DMS agreem ent, which states that it is governed by New J ersey law, and VS agreem ent (which incorporates by reference the DMS agreem ent) and the applicability of Rhode Island law to the SEM agreem ent, which states that it is governed by Rhode Island Law. Loop Decl. Exs. A., at 10 ¶ 14, Ex. C., at 4 ¶ 7, Ex. D. Accordingly, ADP’s contract claim with respect to the DMS and VS agreem ents is governed by New J ersey law and its contract claim with respect to the SEM agreem ent is governed by Rhode Island law. 8 of the contract,’” but this evidence cannot be used “‘to vary the [written] term s of the’” agreem ent. Nye v. Ingersoll Rand Co., 783 F. Supp. 2d 751, 761 (D.N.J . 20 11) (quoting Conway v. 287 Corporate Ctr. Assocs., 187 N.J . 259, 269-270 , 90 1 A.2d 341 (20 0 6)). The sam e is true under Rhode Island law. See, e.g., Clark-Fitzpatrick, Inc./ Franki Foundation Co. v. Gill, 652 A.2d 440 , 443 (R.I. 1994) (“In situations in which the language of a contractual agreement is plain and unam biguous, its m eaning should be determ ined without reference to extrinsic facts or aids.” (citing Greenwald v. Selya & Iannuccillo, 491 A.2d 988, 989 (R.I. 1985))). Autom all m aintains that the agreem ents at issue in this case are am biguous and therefore that sum m ary judgm ent on ADP’s breach of contract claim s is inappropriate. Def.’s Opp’n at 3.7 It contends, m oreover, that extrinsic evidence of, am ong other things, Galani’s negotiations with BZ personnel illum inates the m eaning of the agreem ents and m ust be considered by a jury. Def.’s Opp’n at 3-6. The Court disagrees. Whether the language of a contract is am biguous is a m atter of law for determ ination by the Court, Nye, 783 F. Supp. 2d at 759; accord Garden City, 852 A.2d at 541, and the Court concludes that none of the agreem ents at issue in this case is am biguous or requires the consideration of extrinsic evidence by the jury. 7 Autom all argues that the SEM agreem ent is “incom prehensible and unenforceable,” but fails to point to any language in the agreem ent that is subject to reasonable alternative interpretations. Def.’s Opp’n at 3. Autom all also fails to point to any am biguous language in the DMS agreem ent and instead m erely m akes the assertion in a conclusory fashion. Id. (“Plaintiff’s Mem orandum of Law erroneously contends the two agreem ents are ‘clear and unam biguous, . . . . Since they aren’t, extrinsic evidence is adm issible to dem onstrate the intent of the parties under New J ersey law, since the contracts are capable of m ore than one reasonable interpretation.”) (em phasis added). 9 The DMS agreem ent nam es “Planet Autom all” as the party contracting with BZ and, in exchange for BZ’s services, obligates Autom all for a non-cancelable term of 36 m onths beginning on the date of the agreement’s acceptance, August 30 , 20 0 7, to m ake a “total m onthly paym ent of $ 3,30 0 .0 0 .” Loop Decl. Ex. A., at 10 ¶ 2, 3(b). The SEM agreem ent also nam es “Planet Autom all” and provides that it “agrees to pay BZ the Total System Contract Price,” a m onthly paym ent of $ 3,0 0 0 over a term of 12 m onths. Loop Decl. Ex. C, at 1, 2. The VS agreem ent nam es “Planet Autom all” as well and provides that for a m onthly fee of $ 195, BZ will provide Autom all with a “video tour guide” for its website. Loop Decl. Ex. D. It also provides that “BZ and Client [Autom all] agree that the Term of this Agreem ent shall be co-term inus with the Term of the Client’s existing Digital Marketing Agreem ent previously executed by Client [Autom all].” Loop Decl. Ex. D. Accordingly, the VS agreem ent, like the DMS agreem ent—the digital m arketing agreem ent previously executed by Autom all—has a 36 m onth term . The key provisions of each of these agreem ents are not subject to m ore than one reasonable interpretation, and the Court therefore m ay not consider extrinsic evidence in interpreting them . See, e.g., Nye, 783 F. Supp. 2d at 761; Clark-Fitzpatrick, 652 A.2d at 443. Autom all, nevertheless, seeks to have the Court do just that. With respect to the DMS agreem ent, Autom all, relying on statem ents in Galani’s declaration concerning certain conversations he allegedly had with BZ representatives, argues that the agreem ent (1) was cancelable on 30 days notice to BZ; (2) applied to KG Suzuki in addition to Autom all; (3) also encom passed the provisions of the SEM and VS agreem ents; (4) cost only $ 3,0 0 0 per m onth; and (5) did not com m ence until March 1, 20 0 8. Def.’s Opp’n at 1-5. These contentions are belied by the plain and unam biguous 10 language of the DMS Agreem ent, and any purported statem ents m ade by BZ representatives to Galani m ay not be used to rewrite the DMS agreem ent’s term s. This is particularly true here because the DMS agreem ent contains a m erger clause, Loop Decl. Ex. A, at 10 ¶ 10 , further evidence that the agreement is integrated and constitutes the final and com plete expression of Autom all and BZ’s agreem ent. See, e.g., Telecom Int’l. Am ., Ltd. v. Am . Tel. & Tel. Corp., 280 F.3d 175, 191 (2d Cir. 20 0 1) (noting that “under New J ersey law, the presence of an unequivocal and conspicuous integration clause further strengthens the presum ption of com pleteness and is nearly dispositive” and affirm ing district court’s refusal to consider extrinsic evidence in interpretation of contract). Autom all’s attem pt to inject am biguity into the SEM agreem ent also fails. Autom all argues first that the SEM agreem ent never “com m enced” because Autom all never paid BZ pursuant to the agreem ent. Def.’s Opp’n at 3. Autom all relies on the following provision of the SEM agreem ent in support of its position: Starts [ s ic] D ate BZ Results shall com m ence service under this Statem ent of Work im m ediately upon its receipt from the Client and required paym ent. BZ Results shall be under no obligation to subm it “Structure Pages” to Search Engines until Initial Paym ent has been received from Client. Loop Decl. Ex. C, at 2 (em phasis added). This contention is m eritless. The “required paym ent” refers to fees for a “BZ Search Engine Marketing Micro-site” and for “BZ Search Monthly Service” in the Statem ent of Work section of the SEM Agreem ent—all of which BZ waived. Loop Decl. Ex. C, at 1. The required paym ent is not, as Autom all contends, the $ 3,0 0 0 m onthly fee provided for in the SEM agreem ent. Def.’s Opp’n at 4. Indeed, interpreting the agreem ent in this 11 fashion would render superfluous paragraph 3 of the agreem ent which obligates Autom all to pay $ 3,0 0 0 per m onth to BZ, over a term of 12 m onths, Loop Decl. Ex. C, at 1, 2. Moreover, although Autom all, again relying on Galani’s declaration, contends that the SEM agreem ent is “incom prehensible and unenforceable,” Def.’s Opp’n at 3; Galani Decl. ¶ 23, Galani testified during his deposition that he read and understood the agreem ent before signing it: Q. Did you say that you read [the SEM agreem ent] before you signed it. A. Yes, I read it. Q. Did you understand it? A. I understood it very clearly, and it was part of the $ 30 0 0 of the original. This does not say — Q. Where does it say that it’s part of the $ 30 0 0 in that docum ent? A. Where does it say that it’s not part of the $ 30 0 0 package? Reply Declaration of Michael S. Re dated J uly 28, 20 10 Ex. A (Galani Dep.), at 137-8. Likewise, to the extent that Autom all contends that the Court should consider extrinsic evidence of purported fraudulent m isrepresentations by BZ personnel during negotiations with Galani, Def.’s Opp’n at 6, the Court finds this contention unpersuasive. While it is true, as Autom all argues, that the introduction of extrinsic evidence to prove fraud in the inducem ent is a well-recognized exception to the parol evidence rule, Def.’s Opp’n at 7, “a party m ay not seek to contradict the express term s of a writing to avoid obligations he knowingly assum es.” Alexander v. CIGNA Corp., 991 F. Supp. 427, 436 (D.N.J . 1998) (citing Winoka Vill. v. Tate, 16 N.J . Super. 330 , 333-34, 84 12 A.2d 626 (App. Div. 1951)).8 Indeed, where, the alleged m isrepresentations pertain to “m atters expressly addressed in the integrated writing” the exception does not apply. Film life, 251 N.J . Super. at 598; accord Fr. Winkler KG v. Stoller, 839 F.2d 10 0 2, 10 0 6 (3d Cir. 1988) (affirm ing sum m ary judgm ent on breach of contract claim where extrinsic evidence that plaintiff m ade allegedly fraudulent m ispresentations to defendant barred as “attem pt to contradict, alter, or m odify the term s of an integrated contract” that “would do m ore than sim ply m odify the [contract’s] term s; it would utterly extinguish them ”); Ram ada Worldwide, Inc. v. Hotel of Grayling, Inc., No. 0 8 Civ. 3845 (KSH), 20 10 WL 2674460 , at *7 (D.N.J . J une 30 , 20 10 ) (barring purportedly fraudulent statem ents m ade during negotiations because they related to m atters addressed in agreem ent containing m erger clause and granting sum m ary judgm ent on breach of contract claim ). That is precisely the situation presented here. The DMS agreem ent, like the agreem ents at issue in Stoller and Ram ada constitutes the final written expression of the parties’ agreem ent. Its m erger clause provides that it “contains the entire agreem ent and understanding between between [Autom all] and BZ . . . and supersedes any and all agreem ent or understanding, whether written or oral relating thereto.” Loop Decl. Ex. 8 The parol evidence rule bars the introduction of oral evidence to alter or vary the term s of an integrated written agreem ent. See, e.g., Film life, Inc. v. Mal “Z” Ena, Inc., 251 N.J . Super. 570 , 572, 598 A.2d 1234 (App. Div. 1991) (citation om itted). Put differently, “[w]here the contract or agreement is unam biguous, parol evidence of prior inconsistent term s or negotiations is inadm issible to dem onstrate intent of the parties.” Harley-Davidson, Inc. v. Morris, 19 F.3d 142, 148 (3d Cir. 1994). 13 A, at 10 ¶ 10 .9 Moreover, all of the purported m isrepresentations—including that the DMS agreem ent applied to KG Suzuki in addition to Autom all, was cancelable after 30 days, and cost $ 3,0 0 0 per m onth—are expressly contradicted by the DMS agreem ent. See Galani Decl. ¶¶ 3, 5; Loop Decl. Ex. A, at 10 . Accordingly, even if Galani’s statem ents concerning purported fraudulent representations by BZ representatives are true, they are barred by the parol evidence rule.10 Having concluded that the agreem ents at issue in the case are unam biguous and therefore that sum m ary judgm ent on ADP’s breach of contract claim is perm issible, the Court next turns to whether ADP has established each of the elem ents of the claim . A breach of contract claim requires a plaintiff to show: (1) the existence of a valid contract; (2) a breach of that contract; and (3) resulting dam age to the plaintiff. See, e.g., Ram ada 9 Galani’s purported failure to read the DMS agreem ent before signing it on behalf of Autom all is irrelevant. See, e.g., Raiczyk v. Ocean Cnty. Veterinary Hosp., 377 F.3d 266, 270 (3d Cir. 20 0 4) (“[I]t is well settled that signing a contract creates a ‘conclusive presum ption that the signer read, understood, and assented to its term s.’” (quoting Flem ing Cos. v. Thriftway Medford Lakes, Inc., 913 F. Supp. 837, 843 (D.N.J . 1995))). 10 Autom all’s claim that the DMS agreement created a fiduciary relationship between the parties in light of its inclusion of language such as “Partnership Pricing” and “Partner Statem ent” in the agreem ent’s various headings, Def.’s Opp’n at 2, is also m eritless. If Autom all’s standard for finding a fiduciary duty were correct, then a very large num ber of ordinary contracts would result in fiduciary relationships between parties. In any event, Autom all cites no authority for this proposition and does not even attem pt to articulate how this language results in a relationship in which “one party places trust and confidence in another who is in a dom inant or superior position.” Hunter v. Sterling Bank, Inc., No. 0 9 civ. 172 (FLW), 20 11 WL 5921388, at *7 (D.N.J . Nov. 28, 20 11) (describing fiduciary relationship as arising “between two persons when one person is under a duty to act for or give advice for the benefit of another on m atters within the scope of their relationship” (citing F.G. v. MacDonell, 150 N.J . 550 , 563-64, 696 A.2d 697 (1997))). 14 Worldwide, Inc. v. Kim , No. 0 9 Civ. 4534 (WHW), 20 10 WL 2879611, at *3 (D.N.J . J uly 15, 20 10 ) (citing AT & T Credit Corp. v. Zurich Data Corp., 37 F. Supp. 2d 367, 370 (D.N.J . 1999)); Gorm an v. St. Raphael Academ y, 853 A.2d 28, 33 (R.I. 20 0 4). There is no question that the undisputed facts establish each of these elem ents. Galani, on behalf of Autom all, executed the DMS, SEM, and VS agreem ents, which obligated Autom all to provide paym ent to ADP in exchange for certain digital m arketing services. Loop Decl. Exs. A, C, D. ADP perform ed its obligations under the agreem ents. See, e.g., Loop Decl. ¶¶ 14-15; Pearson Decl. ¶¶ 4-5. Autom all breached its obligations under the agreem ents by failing to pay the am ounts due under the m onthly invoices that ADP sent to it for the billing periods beginning in Septem ber 30 , 20 0 7 and continuing through May 31, 20 0 8. Pl.’s 56.1 Statem ent ¶ 29. And ADP suffered m onetary dam ages as a result of Autom all’s default under the agreem ents. Loop Decl. Exs. A, C, D; Pearson Decl. ¶¶ 21-25. ADP’s m otion for sum m ary judgm ent on its breach of contract claim is therefore granted. ADP’s m otion for sum m ary judgm ent with respect to Autom all’s affirm ative defenses is granted as well, and these defenses are dism issed. Autom all asserts a laundry list of defenses in its answer including: (1) failure to state a claim ; (2) insufficiency of service of process; (3) waiver; (4) estoppel; (5) lack or failure of consideration; and (6) fraudulent inducem ent but, except for its fraudulent inducem ent defense, Autom all has m ade no argum ents in opposition to ADP’s m otion and has therefore abandoned these defenses. See, e.g., Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 20 0 3) (“Federal courts m ay deem a claim abandoned when a party m oves for sum m ary judgm ent on one ground and the party opposing sum m ary 15 judgm ent fails to address the argum ent in any way.”). Autom all’s fraudulent inducem ent defense fails not only because it is insufficiently pled under Fed. R. Civ. P. 9(b), MM Arizona Holdings LLC v. Bonanno, 658 F. Supp. 2d 589, 594 (S.D.N.Y. 20 0 9) (Rule 9(b) applies to affirm ative defenses alleging fraud), but also because Autom all has failed to offer any “hard evidence showing that its version of the events is not wholly fanciful.” D’Am ico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).11 Indeed, Autom all has only com e forward with conclusory and self-serving statem ents from Galani in support of its defense. See, e.g., Galani Decl. ¶ 5 (“I relied upon the representations of LOOP and FRIEDMAN before executing the DMS agreem ents . . . .”). Though Autom all identifies Loop and Friedm an as the BZ em ployees who m ade the alleged m isrepresentations, it fails to identify a specific statem ent, m ade on a specific day, that constituted a fraud. Nor does it explain how its reliance on the m isrepresentations was reasonable. Autom all thus has failed to raise a genuine dispute of m aterial fact with respect to its fraudulent inducem ent defense, and it, like its other defenses, is therefore dism issed. See, e.g., Arizona Holdings, 658 F. Supp. 2d at 594-95 (sum m ary judgm ent granted as to fraudulent inducem ent defense where only evidence supporting defense was conclusory and self-serving statem ents of defendants). Because the Court has concluded that ADP is entitled to recover on its breach of contract claim , it need not reach ADP’s unjust enrichm ent claim as a plaintiff seeking 11 The elem ents of fraudulent inducem ent are: “(1) a m aterial m isrepresentation of a presently existing or past fact, (2) m ade with knowledge of its falsity, (3) with the intention that the other party rely thereon, [and] (4) resulting in reliance by that party to his detrim ent.” Standard Office Sys. v. U.S. Exp. Leasing, Inc., No. 10 Civ. 0 1427 (SDW) (MCA), 20 11 WL 223472, at *7 (D.N.J . J an. 24, 20 12) (citations om itted); accord Wom en’s Dev. Corp. v. City of Cent. Falls, 764 A.2d 151, 160 (R.I. 20 0 1). 16 com pensation for the sam e injury under different legal theories is only entitled to one recovery. See, e.g., Finem an v. Arm strong World Indus., Inc., 980 F.2d 171, 218 (3d Cir. 1992) (“Sim ply because [plaintiff] was able to wrap that loss into several different legal theories of recovery does not entitle it to recoup twice.”). The Court refers this case to Magistrate J udge Reyes for an inquest to determ ine the appropriate dam age award, including ADP’s request for attorney’s fees and any pre-judgm ent interest. 12 III. CON CLU SION For all of the foregoing reasons, ADP’s m otion for sum m ary judgm ent is hereby GRANTED, and Autom all’s affirm ative defenses are hereby DISMISSED. This case is referred to Magistrate J udge Reyes for an inquest to determ ine the appropriate dam age award. SO ORDERED. Dated: Brooklyn, New York January 12, 2012 /s/ I. Leo Glasser Senior United States District Judge 12 The DMS agreem ent provides that upon Autom all’s default, it “agrees to pay all expenses collecting such paym ents due including, without lim itation, reasonable expenses and fees of legal counsel, court costs and the cost of appellate proceedings.” Loop Decl. Ex. A, at 10 ¶ 4 (em phasis added). The SEM agreem ent contains an identical provision. Loop Decl. C, at 4 ¶ 3. ADP’s reasonable attorney’s fees and costs should therefore be considered in determining the appropriate dam age award. See, e.g., Alyeska Pipeline Servs. Co. v. Wilderness Soc’y, 421 U.S. 240 , 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975) (absent statutory obligation, enforceable contractual obligation, or a situation involving willful disobedience of a court order, litigants generally pay their own attorney’s fees); Alcoa Edgewater No. 1 Fed. Credit Union v. Carroll, 44 N.J . 442, 448, 210 A.2d 68 (1965); Kells v. Town of Lincoln, 874 A.2d 20 4, 214 (R.I. 20 0 5)). Although ADP seeks pre-judgm ent interest on its claim s, Com pl. ¶ 12, it has articulated no legal basis for such an award in the subm issions currently before the Court. 17
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