-DEM Corbin Bernsen v. Innovative Legal Marketing, LLC, No. 2:2011cv00546 - Document 63 (E.D. Va. 2012)
Court Description: MEMORANDUM ORDER: Adopting in part Report and Recommendations re 45 Report and Recommendations.; granting in part and denying in part 18 Motion for Summary Judgment. The court, having examined Bernsen's Objection to the R&R, and having rev iewed the record and made de novo findings with respect to the portion objected to, does hereby adopt and approve the findings and recommendations set forth in Sections A and C(2)-(5) of the R&R, concerning the morality clause in the Agreement and di smissal of Bernsen's unjust enrichment claim. The court does hereby modify the findings and recommendations set forth in Section C(l) of the R&R, concerning a conclusion of law on ILM's potential waiver of its rights under the Agreement, as discussed above. Accordingly, ILM's Motion for Summary Judgment is GRANTED in part and DENIED in part. The court finds as a matter of law that the language of the Agreement includes a morality clause; however, the court declines to find as a ma tter of law that ILM has not waived its rights under the Agreement, because a material fact remains in dispute, namely ILM's intent to waive. The court DENIES ILM's motion as to Bernsen's alleged breach of the morality clause, because material facts remain in dispute concerning Bernsen's conduct and waiver. Finally, the court GRANTS ILM's motion on Bernsen's claim for unjust enrichment, and DISMISSES that claim. The Clerk is DIRECTED to forward a copy of this Order to counsel for all parties. Signed by District Judge Rebecca Beach Smith and filed on 8/14/12. Copies distributed to all parties 8/15/12. (ldab, )
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-DEM Corbin Bernsen v. Innovative Legal Marketing, LLC Doc. 63 FILED UNITED STATES EASTERN DISTRICT DISTRICT Norfolk OF COURT AUG VIRGINIA 1 4 2012 Division CLERK, US DISTRICT COURT NORFOLK, VA CORBIN BERNSEN, Plaintiff, v. ACTION NO. INNOVATIVE LEGAL MARKETING, 2:llcv546 LLC, Defendant. MEMORANDUM This matter Judgment April filed 27, Federal The and Judge and 20, Rule of Civil part recommended had not language ILM's that waived with of its the Corbin the ("ILM") by on May Order U.S.C. § on States 18, 2012, 636(b)fl)(B) argument on June Recommendation j udge court recommended Specifically, find under Bernsen Agreement LLC Summary United oral motion. rights for and 72(b). and magistrate Motion to 28 heard Report a referred Miller of on Marketing, was Procedure judge The in motion E. court Legal provisions his 2012. ("Agreement") the the magistrate granting j udge ILM Douglas to the Innovative The filed June by before 2012. Magistrate pursuant comes ORDER as a a included denying the and morality on in part magistrate of spokesperson a 2012, ("R&R") matter ("Bernsen"), 5, law that agreement that while clause, the Dockets.Justia.com court should deny that clause. recommended for unjust the R&R, ILM's R&R that the court parties and thereto. Plaintiff's Objection & Response on July Pursuant Procedure, the entirety, of the Civ. whole shall R&R P. or to 2012, the Judge By to Miller's of written received June Objection"). copy file court claim ILM 20, 2012 filed its 72(b) court, make a of having de_ has specifically court in the recommendation to may him accept, of with Rules the determination The matter Federal reviewed novo Bernsen the record of its portions objected. or Civil in those reject, the of Fed. modify, magistrate instructions. R. in judge, or 28 U.S.C. and having 636(b)(1). The made de court, novo Objection. forth in ILM's Motion IN right 5, July their further Bernsen's Id. of 2012. which the claim. breach judge on of ("Bernsen's Rule part, motion that 72(b). recommit § 19, to advised alleged magistrate ILM's Magistrate Recommendation Bernsen's The grant On to to dismiss were objections Report as 23-24. enrichment the motion the PART. determination having findings examined with Accordingly, R&R for At on are a respect the adopted Summary in part Motion is level, for Objection thereto, findings Judgment threshold ILM's Bernsen's sustains and and recommendations modified GRANTED IN however, Summary Bernsen's in PART in part, and making Judgment, the set and DENIED this court ADOPTS the recommended findings of undisputed material fact set forth in the R&R.1 I. Summary court, issue of judgment 477 judgment viewing favorable to the the as a if the has element that burden 317, of 323 To a that on v. Celotex that Corp. v. genuine grant party most Lobby, of the entitled adequate existence which no is should when light is Liberty after the the party court party, in there moving A case, trial. and Anderson establish appropriate finds the (1986). party's is whole party, nonmoving at a law. to 56 Inc., summary time an to for essential will bear Catrett, 477 the U.S. (1986). defeat go upon genuine motion beyond the for without Rather, find 1 See R&R 2-8. Causey "there for the for facts affidavits, insufficient. reasonably a issue statements, 1998) . Rule as and of failed proof party must relying fact 248-50 discovery, of record matter 242, judgment under nonmoving material U.S. Summary Judgment: Standard summary alleged depositions, trial. See specific v. Balog, must be judgment, in or at evidence 324. evidentiary 162 F.3d on instead to support, 802 which the 477 show Conclusory 795, Anderson, nonmoving pleadings, other id. evidence plaintiff." the the U.S. are (4th jury at Cir. could 252. II. Bernsen magistrate raises judge's waived its alleged one violation the to of the court of law, "ILM Bernsen's of the question. Id. "[w]hile Bernsen theoretically be to support "that ILM violations conduct both C(l) of for the some Virginia that For ILM has not on based the the any reasons set Objection. the See Elec. put to as Power the Co. v. the a ILM's the can evidence Resp. 1. allegation for knew his about R&R 9. unambiguous Norfolk that, Agreement him." 1; ILM jury clause any an alleged Response forth an waive raises company contains Obj. contract." Bernsen's terminating Bernsen's for clause." terminate Agreement & to matter whether non-waiver addressed to thus its a may Agreement in as the party and a failed clause prior under a the that R&R right the of that, agreement the non-waiver morality time that contends has R&R rights the clause ILM its the conduct, correct of agree, provision. Examining its he in its terminate waived, waived parties waiver by the waiver of Section clause. argues 2-3. is law contesting Agreement Bernsen's waived morality at R&R, of the finding Bernsen to matter morality the not right the R&R Recommendation to 1. a sustains provision its violations has Obj. anti-waiver waived objects as to terminate A. Bernsen Objection objection finding rights forth below, Bernsen's ILM's S. Ry. As anti- Resp. 1. Co., 278 Va. 444 law, (2009), an from the magistrate anti-waiver enforcing the provision terms done so previously." case similarly concluded prior to his an terms B. even the though Virginia defendant it had not provision, ILM not knew give of rise the Agreement." the magistrate Bernsen's to a conduct waiver of its Id. Waiver of an Anti-Waiver Provision "is legal under Given that the Agreement in this does of that, preclude agreement because termination Waiver the not anti-waiver "simply rights under the known of stated "did R&R 10.2 has judge judge the right. voluntary, It has two intentional essential abandonment elements: (1) of a knowledge 2 The court does not find Virginia Electric to be controlling on the issue the striking of waiver an & Co., address waiver. Supreme Court provision contract of As had of in a would fact." issue, Id. had Id. and developed In time, to that court only notice forward. a is of a would calculated at prove J., Southern damages 533. its from a acts, Virginia to for prospectively contractual time trier is is instant right Thus, defense Electric a the course Electric "the estoppel the the in or dissenting). in affirmative contractual by viable contained waiver from precluded non-waiver one Virginia of Virginia waive judicial basis defense the a conduct, plaintiff viable reassert 522, the "by case, a fact. Norfolk Id. to factual assert it as the if Court alleged may (Koontz, the instant trier on defendant plaintiff 476-77 waiver the failing such party Virginia Supreme defense had ruling elements case." striking waiver "a chance the the including estoppel, thus for at for "the Virginia highlighted, plaintiff because this Electric, court's because in The grounds Virginia circuit waiver 466. found the the distinguishable after not case," judicial have at dissent contract this of In a established Va. the defense, dealing." absent were case. upheld defense 278 estoppel, affirmative instant alternative Id. judicial the Court estoppel Power not in Supreme affirmative judicial Elec. did of Virginia not an to be otherwise case, period advised right, of of and as, of the the prospective of the intent facts to basic to relinquish S.E.2d 722, 725 the exercise that (Va. of right." 1989).3 the right, Bergmueller (2) the Minnick, v. and 383 "Waiver need not be express: it may be inferred from the conduct of the waiving party." Co. v. AT&T 17432, Life at Comm'cns, *13 Ins. Inc., (4th Cir. Soc'y v. No. 92-2050, 13, 1993) July Grant, 38 S.E.2d existence of an anti-waiver clause an intent however, not themselves shown World, 38 conduct, S.E.2d Here, Obj. to 3. the rights to waiver." acts, decision as right. or a to be at conduct a waiver of its R&R 10, is thus whether a genuine World 1946)). {Va. contract rights under Id. the at course to no issue The is under 'no *14. of dispute evidence of the contract; "[l]ike waiver' all clause are Such waiver dealing." to the prior to the turns ILM's R&R that "for months, terminate Bernsen in 454 LEXIS can be Woodmen of 454. incidents statement intent. the App. of necessarily control," because, appears dispute 450, the U.S. (citing Woodmen in a The question of waiver thus contractual Bernsen's at there alleged material 3 The rights, subject "by prior relinquish "it does not contractual of the to 1993 Perry Enq'g to that his and even to Bernsen's is a relinquish pieces because termination does some years," on whether there three "simply knew of Agreement. intent points ILM not of ILM give its evidence knew rise of to rights under the terms of the Agreement," insufficient; the court must then examine dispute of material fact exists as to ILM's as creating ILM a jury continued potentially under of the the of from evidence, that the entirely ILM's and five contract's conduct courts a provision, ILM ILM of be at it as of a parties' who have clause to right in an notwithstanding an can by does collecting not . . enforce under of anti-waiver its However, under also a a intent contract of the course of by to morality ILM clause. declination intent provision. the Bernsen's exercising repeated are plausible. violative the evidence conduct rights non-waiver. is its 3. benefits affirmative that stating The its party 4-6, contest with payment enjoyment R&R found contract benefit . potentially subsequently a a of and with similarly the with see the characterizations of clause, Bernsen Resp. enjoyment incidents pay knows ILM's the to consistent continued payment, [after insufficient, Bernsen, consistent right ILM non-waiver. party "(1) reap to 4. waive: years continued entirely consistent use, two to advertisements Id. right contractual of intent continued is with continued entirely Other enforce use morality its its both separate waive ILM in by finds may bargained-for after (2) non-waiver provision." continued continuation almost characterizes consistent endorsement ILM's for customers." but court Agreement, to (3) contractual protected by a The and "conduct bargained-for Bernsen Bernsen its as conduct]; Agreement; this is use violative use payments to question to waive See to the Perry Eng'g Co., from 1993 AT&T's submitted the after can 38 be Even case 1987 U.S. late this stage Viewing a may or a Olga's at waive adjustments to intent course its Kitchen (6th a infer waive generally Woodmen of *12 could intended party's support persistent the could of in the in Plumbing evidence find that of to dealing"). position v. Papo, Cir. Feb. in its No. 85- 16, in 1987) clause of course conduct of waive ^nonwaiver' ILM's respect that convincing burden. favor in the that ILM's judge's of the Inc., of intent the to its Similarly, evidence," function 3. is and that However, not "at himself 8 court after in a accepting Reeves (2000). concludes in "all that payment the a and incidents Agreement provision with other courts have demonstrated by "clear Bernsen to 150 repeated numerous draw party." 133, anti-waiver the must continued clause implied waiver must be Resp. U.S. ILM's morality waive court non-moving the of endorsement the 530 light, evidence to that clause.4 ILM argues litigation, Prods., Bernsen's demonstrate the in it See that 2205, violative and ILM LEXIS potentially 4 that acts, See inferences Sanderson use conduct, a price cases."). point. by ("One elapsed (holding lessor *14 approving of at payments."). reasonable jury all by App. agreement At v. "by ("A had 454 this (unpublished) lease at 17432, practice in cited makes LEXIS days deadline evidenced Response 1591, ten S.E.2d the App. consistent ten-day World, U.S. cannot summary weigh meet judgment the this stage evidence and held that waiver, even question best left Standard Life Ins. proof waiver see of also itself occurred the Co., Given a contradictory relates to the Bernsen's weight any that the court and entitled DENIES alleged and court, having determine is a reviewed the genuine Drawing finds all that issue of having truth issue of reasonable Bernsen intent to be instructed will need to determine Motion for and fact") ; 869, is 872 that contract, by an is of modification or course has potentially a valid evidence court matter Summary and as declines of law. Judgment it to As as to clause. made but a the whether to Objection cte determine in sufficient genuine clear issue and Bernsen's to R&R, with whether 477 Bernsen's the findings novo Anderson, presented on the the as Bernsen's matter it F.2d that Conclusion inferences has will waiver, trial." make, jury level. the of ... submitted judgment record for two the thus examined the of the morality Ill. The of to of 645 in waiver (noting a factfinder."). ILM's breach terra Jefferson trier modification recognition intent, the authority such interpretations is of for usually v. (1982) Shelton, other whether for v. is Assocs. 485 question Corp. provision, Link 479, waiver or court's ILM See Va. a like to ILM's that 223 Credit question the anti-waiver jury. "usually clause, and is an ("[T]he subject performance such, is 1981) 'anti-waiver' find to Westinghouse Cir. (10th of U.S. favor, the evidence for trial, convincing evidence there at 249. court on the as the standard rises to and that respect to approve the and of and The court set forth law on portion findings C(2]-(5) Agreement as the the ILM's that and the modify has court fact The court the DENIES copy R&R, of its clause in A the claim. recommendations concerning Motion part. the a under The to rights in ILM's Summary court Agreement declines its for conclusion the of Agreement, find as under dispute, motion as finds a namely to and that Order on claim. to counsel The Clerk for ILM's facts claim all a is morality of law intent alleged remain is unjust DIRECTED of law clause; that ILM because to a waive. breach in Finally, for GRANTED matter Agreement, waiver. Bernsen's a Bernsen's conduct motion as matter the material ILM's Judgment includes because this and Sections enrichment and rights adopt in morality findings clause, DISMISSES of the forth unjust Bernsen's concerning and in remains morality GRANTS of the hereby set the Bernsen's waiver of waived material C(l) ILM's DENIED the not does above. language however, concerning hereby potential discussed part R&R, Section to, recommendations of Accordingly, in and dismissal does in objected of dispute the court enrichment, to forward parties. ([ Rebecca Beach Smith it is so ordered. Chief United States District Judge REBECCA CHIEF Norfolk, August Virginia ^a , 2012 10 BEACH UNITED SMITH STATES DISTRICT JUDGE a
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