Roberta L. Marcus, Inc. v. New Cingular Wireless PCS, LLC et al, No. 1:2012cv20744 - Document 91 (S.D. Fla. 2013)
Court Description: ORDER granting in part and denying in part 76 Defendants' Motion for Summary Judgment. Signed by Judge Robert N. Scola, Jr. on 9/3/2013. (rss)
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Roberta L. Marcus, Inc. v. New Cingular Wireless PCS, LLC et al Doc. 91 U N ITED STATES D ISTRICT COU RT SOU TH ERN D ISTRICT OF FLORID A Cas e N o . 12 -2 0 74 4 -Civ-SCOIA ROBERTA L. MARCUS, INC., Plaintiff, vs. NEW CINGULAR WIRELESS PCS, LLC, and BELLSOUTH TELECOMMUNICATIONS, LLC, Defendants. ______________________________/ ORD ER ON D EFEN D AN TS’ SU MMARY JU D GMEN T MOTION THIS MATTER is before the Court on the Defendants’ Motion for Sum m ary J udgm ent. For the reasons explained in this Order, the Motion is granted in part, and denied in part. J udgm ent is granted against m any of the claim s because they are barred by the statute of lim itations. A few claim s survive the statue of lim itations because they are continuing in nature, but the Plaintiff has not presented any evidence of actual dam ages. The Plaintiff is therefore only entitled to nom inal dam ages, assum ing it is able to m eet its burden of persuasion. I. Backgro u n d This case involves a dispute over a piece of telecom m unications equipm ent between the Plaintiff, Roberta L. Marcus, Inc. (“Marcus”), and the Defendants, New Cingular Wireless PCS, LLC and Bellsouth Telecom m unications, LLC. In 1996, New Cingular leased space in the Marcus Centre, a building owned by Marcus. The lease granted New Cingular the ability to install a cellular antenna on the roof of the Marcus Centre, and also to use an equipm ent closet to store electronic equipm ents related to the operation of the cellular antenna. A critical com ponent to New Cingular’s cellular operations at the Marcus Centre was a piece of equipm ent called a m ultiplexer (this com ponent is also the key point of contention in the present litigation). The m ultiplexer provided the necessary connection between a landline service and the cellular equipm ent in order for calls to be transported to and from the cellular equipm ent operating antenna. Without that connection, the cellular site at the Marcus Centre would have been useless. The m ultiplexer was provided to New Cingular by Bellsouth. Bellsouth was the entity that provided service to the landlines for the area around the Marcus Centre. Marcus and New Cingular got into a legal dispute over New Cingular’s decision to not renew the lease. In 20 0 3 the parties reached a settlem ent at m ediation and executed a Settlem ent Agreem ent and Term ination of Lease. As part of this settlem ent, New Cingular agreed to transfer the antenna and all of the cellular equipm ent in the closet to Marcus so Marcus could lease the site Dockets.Justia.com to another cellular carrier. Also in connection with the settlem ent, Marcus executed a general release as to New Cingular for all claim s, known or unknown. After the lease was term inated, Marcus sought other cellular carriers to lease the antenna and equipm ent to. As part of this plan, Marcus had insisted in the settlem ent discussions that New Cingular leave all of the equipm ent fully operational and powered on so that Marcus would be able to dem onstrate to a potential lessee that the equipm ent was in good working order and would be a “turn-key” operation. Early in 20 0 6, a technician for New Cingular presented him self to Marcus and asked to exchange a piece of equipm ent in the equipm ent closet. Marcus denied the technician access to the closet. In the conversation that followed, Marcus told the technician that he was thinking about shutting off the power to the equipm ent closet. The technician inform ed Marcus that shutting off the equipm ent in the closet could cause a disruption to telephone services in the area. After that m eeting, Marcus sent a letter to New Cingular to express his concern that New Cingular was violating the term s of their settlem ent agreem ent by continuing to use the cellular com ponents in the equipm ent closet. Marcus did not receive a response from either New Cingular or Bellsouth. Marcus did not follow up on this concern because, unfortunately, Marcus’s principal, Paul Marcus, becam e very sick with cancer, requiring intensive treatm en ts including m ultiple procedures and m onths of chem otherapy. Marcus continued to seek other cellular carriers to lease the antenna and equipm ent, but by 20 10 Marcus had becom e weary of the now seven-year search. Marcus powered down the equipm ent in order to m ove the com ponents out of the closet. A New Cingular technician appeared at the Marcus Centre asking to look at the equipm ent room . This technician advised Marcus that the closet housed a fiber optic back-up unit for New Cingular’s service in the area. He convinced Marcus that leaving the equipm ent powered off could cause Marcus’s neighbors to lose service. As it turned out, the piece of equipm ent the technician was referring to was the m ultiplexer. There were som e back and forth com m unications between Marcus and the Defendants. Ultim ately the Defendants deactivated the m ultiplexer rem otely. Two years later, in J anuary 20 12, Marcus brought this lawsuit. The crux of this dispute is Marcus’s contention that the Defendants continued to use the m ultiplexer following the term ination of the 1996 lease agreem ent. The Defendants contend that they did not use the m ultiplexer at all, but that it m erely rem ained linked to their network, at Marcus’s request, ready to resum e service if Marcus ever leased the equipm ent to another cellular carrier. 2 II. Le gal Stan d ard s Sum m ary judgm ent is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and adm issions on file show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘m aterial’ if, under the applicable substantive law, it m ight affect the outcom e of the case.” Hickson Corp. v. N Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.20 0 4). “An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonm oving party.” Id. at 1260 . All the evidence and factual inferences reasonably drawn from the evidence m ust be viewed in the light m ost favorable to the nonm oving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970 ); Jackson v. BellSouth Telecom m s., 372 F.3d 1250 , 1280 (11th Cir. 20 0 4). Once a party properly m akes a sum m ary judgm ent m otion by dem onstrating the absence of a genuine issue of m aterial fact, whether or not accom panied by affidavits, the nonm oving party m ust go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and adm issions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24. The nonm ovant’s evidence m ust be significantly probative to support the claim s. Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249 (1986). The Court will not weigh the evidence or m ake findings of fact. Id.; Morrison v. Am w ay Corp., 323 F.3d 920 , 924 (11th Cir. 20 0 3). Rather, the Court’s role is lim ited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the nonm oving party. Id. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a m otion for sum m ary judgm ent. Scott v. Harris, 550 U.S. 372, 38 0 (20 0 7). III. D is cu s s io n A. Co u n ts 1, 3 , 4 , an d 10 Are Barre d By Th e Statu te Of Lim itatio n s an d Th e D e fe n d an ts Are N o t Equ itably Es to p pe d Fro m As s e rtin g Th at D e fe n s e . Marcus was aware that the m ultiplexer was still connected to the Defendants’ network as far back as 20 0 6. (Marcus Aff. ¶¶ 22-25, ECF No. 83-1; Marcus Dep. 81:8-19, 82:1-4, 83:4-8 , 84:1624, 110 :19-25, 113:23-114:12, 123:13-124:13, 134:19-24, ECF No. 82-1.) Marcus even com plained to New Cingular in 20 0 6 that the telephone com pany was “obviously” still using the equipm ent. (Letter from Paul Marcus to Michael Weeks (Mar. 27, 20 0 6), ECF No. 8 2-1; accord Marcus Dep. 83:4-8 , Feb. 27, 20 13, ECF No. 82-1.) Marcus threatened to shut down and rem ove the equipm ent if New Cingular did not pay him for the use of the m ultiplexer. (Id.) New Cingular did not respond to Marcus’s letter, and Marcus let the m atter go. Marcus’s decision to not follow up on his claim s and dem ands w as not due to any thing that the Defendants did. Instead, Marcus let the m atter 3 lapse because he becam e sick from cancer. (Marcus Dep. 91:17-92:14, ECF No. 82-1; Marcus Aff. ¶ 27, ECF No. 83-1.) 1. Sum m ary judgm ent will be granted on the breach-of-contract claim in favor of New Cingular. Sum m ary judgm ent is appropriate on Marcus’s breach-of-contract claim (Count 1) for three reasons: (1) the claim was released by Marcus, (2) the claim is barred by the statute of lim itations, and (3) the claim has no factual support. Marcus alleged that New Cingular breached the Mediation Settlem ent Agreem ent and the Term ination of Lease Agreem ent by continuing to operate the m ultiplexer after the lease was term inated. (Second Am . Com pl. ¶¶ 20 , 34, ECF No. 28; Marcus Dep. 10 8-0 9.) Marcus also alleges that New Cingular breached the Bill of Sale by failing to convey the m ultiplexer to Marcus. (Second Am . Com pl. ¶¶ 16, 35; Marcus Dep. 10 8 -0 9). Taking these allegations in order, the Mediation Settlem ent Agreem ent and the Term ination of Lease Agreem ent were signed on J uly 22, 20 0 3 and August 1, 20 0 3, respectively. The General Release was signed on August 4, 20 0 3. This General Release included “all m anner of actions . . . in law or in equity . . . arising out of any m atter . . . from the beginning of the world until the date of this General Release.” (Gen. Release, ECF No. 82-1.) But Marcus contends that New Cingular breached the Mediation Settlem ent Agreem ent and the Term ination of Lease Agreem en t im m ediately after executing these agreem ents by continuing to use the m ultiplexer as a “back up” unit. (See Marcus Aff. ¶ 33, ECF No. 83-1 (“[T]he room contained a fiber optic back up unit for [New Cingular’s] service in the area.”).) Because these agreem ents were allegedly breached before the General Release was executed, these claim s were necessarily included and extinguished by the General Release. The sam e reasoning applies with equal force to the allegation that the Bill of Sale was breached by failing to convey the m ultiplexer to Marcus. These allegations are also barred by the statute of lim itations. It is undisputed that Marcus was aware that New Cingular was allegedly continuing to use the m ultiplexer by March 26, 20 0 6. (Letter from Paul Marcus to Michael Weeks (Mar. 27, 20 0 6), ECF No. 82-1; accord Marcus Dep. 83:4-8 .) Since the statute of lim itations for a breach-of-written-contract claim is five years, Fla. Stat. § 95.11(2)(b) (20 12), the statute of lim itations for this claim expired on March 26, 20 11. But Marcus’s lawsuit was not filed until J anuary 20 12.1 (Defs.’ Stm t. Facts ¶ 1, ECF No. 78.) 1 Throughout the deposition of Paul Marcus, and occasionally in Marcus’s briefs, the Plaintiff drops subtle allegations of additional wrongs that New Cingular allegedly com m itted. For exam ple, Marcus com plains that New Cingular m ay have rem oved som e electronic equipm ent from the closet after the lease term ination, or that New Cingular was never authorized to coordinate with Bellsouth to have the m ultiplexer installed when the cell tower was operating. None of these allegations are legitim ately before the Court because they are not alleged in the Second Am ended Com plaint, and Marcus has not filed a m otion for leave to am end. But even if these claim s were 4 New Cingular is not equitably estopped from asserting the statute-of-lim itations defense because there are no facts dem onstrating that New Cingular caused Marcus to delay in bringing this action. The doctrine of equitable estoppel, which is based on principles of justice and fair play, arises “when one party lulls another party into a disadvantageous legal position.” Major League Baseball v. Morsani, 790 So. 2d 10 71, 10 76 (Fla. 20 0 1). The doctrine prevents a defendant from asserting a statute-of-lim itations defense when the defendant, through som e nefarious act, has prevented the plaintiff from tim ely bringing his or her lawsuit. ld. There are no facts in the record that support Marcus’s allegations that the delay in bringing this lawsuit was because of som ething that New Cingular did or said. Rather, it is clear that the delay is solely attributable to Paul Marcus becom ing sick. (Marcus Dep. 91:17-92:14; Marcus Aff. ¶ 27 (explaining that because he received no response to the March 20 0 6 letter and because no m ore technicians from New Cingular visited the Marcus Centre, Marcus “decided not to pursue the m atter further, also because of personal m atters including a serious cancer diagnosis and intensive treatm ent.”) ) From that tim e forward, Marcus’s only interaction with New Cingular was the occasional visit by a technician to the Marcus Centre. Th ese technicians purportedly told Marcus that the m ultiplexer was a back-up unit and that shutting the power off could disrupt telephone service for others in the area. (Marcus Aff. 33, ECF No. 83-1.) This allegation explains only why Marcus m ight not shut off the power to the m ultiplexer, it does not explain why Marcus would not bring suit for wrongs that he believed New Cingular com m itted. New Cingular’s actions and statem ents are not connected to Marcus’s failure to bring a lawsuit. Put sim ply, New Cingular did nothing at all to lull Marcus into a disadvantageous legal position. Nothing prevented Marcus from investigating his conclusions that New Cingular had obviously been using the equipm ent since 20 0 3, and nothing prevented Marcus from bringing a lawsuit then. Accordingly, New Cingular is not prevented from raising the statute of lim itations as a defense. And that defense, which is conclusively supported by the record, is a com plete bar to Marcus’s breach-of-contract claim . Finally, Marcus’s allegation that New Cingular breached the Bill of Sale by failing to convey the m ultiplexer to Marcus fails because it is not factually supported by the record. New Cingular and Bellsouth have both conceded that the m ultiplexer was conveyed in the Bill of Sale and is owned by Marcus. (Reply 7, ECF No. 87.) Given this concession, there is no factual support for Marcus’s claim that New Cingular breached the Bill of Sale by not conveying the m ultiplexer in 20 0 3. Sum m ary judgm ent m ust be granted in favor of New Cingular as to this claim as well. raised they would necessarily fail for the sam e reason the breach-of-contract claim fails. These claim s were released by Marcus because they arose before the General Release was executed. 5 2. Sum m ary judgm ent will be granted on the trespass-to-real-property claim against New Cingular. The tort of trespass to real property is “an unauthorized entry onto another’s property.” Coddington v. Staab, 716 So. 2d 850 ,851 (Fla. 4th DCA 1998) (quotation om itted). In this alternative claim , Marcus’s allegations proceed from the prem ise that the m ultiplexer was not conveyed in the Bill of Sale and thus still belonged to New Cingular or Bellsouth. Marcus’s theory of liability is that if the m ultiplexer still belonged to the Defendants after the lease agreem ent was term inated, then the act of leaving the m ultiplexer on Marcus’s property for all these years constituted a trespass upon Marcus’s land. (Second Am . Com pI. “ 45-46, 68, ECF No. 28.) This claim is not supported by the record since the Defendants have now conceded that the m ultiplexer was conveyed to Marcus in the Bill of Sale. At this point, the parties all agree that Marcus is the true owner of the m ultiplexer and has been since August 20 0 3. (Reply 7, ECF No. 87.) Given the undisputed record, sum m ary judgm ent m ust be granted in favor of New Cingular on the trespass-to-real-property claim . 3. Sum m ary judgm ent will be granted on the fraudulent-m isrepresentation claim in favor of New Cingular. Under Florida law, the heart of a fraudulent-m isrepresentation claim is a false statem ent concerning a m aterial fact. Butler v. Yusem , 44 So. 3d 10 2, 10 5 (Fla. 20 10 ). Here, Marcus has articulated two allegedly false statem ents m ade by New Cingular: (1) failing to disclose that it was not conveying the m ultiplexer in the Bill of Sale because New Cingular did not own it, and (2) failing to disclose that New Cingular would continue to use the m ultiplexer after executing the Lease Term ination Agreem ent. (Marcus Dep. 130 :6-18 , ECF No. 82-1.) 2 The first claim has no factual support, and the second is barred by the statute of lim itations. Marcus contends that New Cingular m isled Marcus to believe that all of the com ponents in the electronics closet would be conveyed in the Bill of Sale. According to Paul Marcus, New Cingular’s prom ises were false because the m ultiplexer was not actually conveyed to Marcus. But since both Defendants have conceded that the Bill of Sale did include the m ultiplexer, this claim for m isrepresentation has no factual support in the record. Marcus also contends that New Cingular 2 Again Marcus hints at another claim that is not actually pleaded: that the Rooftop Lease Agreem ent only perm itted New Cingular to use the Marcus Centre to conduct cellular com m unications and that any use of the Marcus Centre to facilitate land-line com m unications was inconsistent with that agreem ent. At his deposition, Paul Marcus com plained about New Cingular’s failure to tell Marcus about the m ultiplexer and its function (to convey land line com m unications). (Marcus Dep. 124:20 -127:16, ECF No. 82-1.) As articulated, this claim necessarily arose at the tim e the m ultiplexer was first installed in the Marcus Centre, near the beginning of the Rooftop Lease Agreem ent in J une 1996. (See id) This claim was therefore released as part of the General Release, executed on August 4, 20 0 3. 6 engaged in actionable m isrepresentations through its continued operation of the m ultiplexer in the Marcus Centre after entering into the Term ination of Lease Agreem ent. (Second Am . Com pl. ¶¶ 1516, 18, 20 -22.) But it is undisputed that by March 26, 20 0 6 Marcus was aware that New Cingular was purportedly still using the m ultiplexer. (Letter from Paul Marcus to Michael Weeks (Mar. 27, 20 0 6), ECF No. 82-1; accord Marcus Dep. 83:4-8 .) Since the statute of lim itations for a fraudulent-m isrepresentation claim is four years, Fla. Stat. § 95.11(3)(j) (20 12), this claim expired in March 20 10 . But Marcus’s lawsuit was not filed until J anuary 20 12. (Defs.’ Stm t. Facts ¶ 1, ECF No. 78.) Once again, it is undisputed that New Cingular did nothing to keep Marcus from filing a claim ; the delay was solely attributable to Paul Marcus’s health issues. (Marcus Dep. 91:17-92:14; Marcus Aff. ¶ 27.) For these reasons, sum m ary judgm ent m ust be granted in favor of New Cingular as to the fraudulent-m isrepresentation claim . 4. Sum m ary judgm ent will be granted on the conspiracy claim in favor of New Cingular. Marcus alleges that New Cingular “conspired [with Bellsouth] to benefit from the contractual relationship [New Cingular] had with [Marcus] for cellular transm issions, only. With access to the Building via said contractual relationship, the Defendants, in concert, conspired to install equipm ent necessary for fiber optic transm issions, which neither Defendant contracted or paid for.” (Second Am . Com pl. ¶ 84.) The crux of the conspiracy was to “bargain for use of a cellular antenna locale but in reality to surreptitiously install and run fiber optics operations out of the Building without disclosing and/ or paying for the sam e.” (Id. ¶ 87.) The Defendants “conspired to run fiber optics operations out of the building without paying for the sam e as early as J une 19, 1996, but no later than August 3, 20 0 3.” (ld. ¶ 86.) This claim is barred for several reasons. First, Marcus is claim ing dam ages for wrongs that occurred during the pendency of the Rooftop Lease Agreem ent (i.e., claim s that occurred “no later than August 3, 20 0 3”). (Second Am . Com pl. ¶ 8 6; accord Marcus Dep. 140 :13-19, ECF No. 82-1.) This claim was discharged by the General Release, executed on August 4, 20 0 3. Next, Marcus is claim ing dam ages for the continued operation of the m ultiplexer after the lease agreem ent was term inated. (Marcus Dep. 140 :20 -23.) 3 Marcus was aware of this claim since March 20 0 6 but failed to bring suit until J anuary 20 12. (Marcus Dep. 134:19-24; Defs.’ Stm t. Facts ¶ 1, ECF No. 78.) Once again, it is undisputed that New Cingular did nothing to keep Marcus from filing a claim ; the delay was solely attributable to Paul Marcus’s health issues. (Marcus Dep. 91:1792:14; Marcus Aff. ¶ 27.) For these reasons, the conspiracy claim is barred by the statute of 3 Paul Marcus explains that there are three claim s under this Count. (Marcus Dep. 140 -141.) But, as articulated, the first and the third claim s are for the sam e alleged wrong (i. e., the use of the Marcus Centre to facilitate land line com m unications when the Rooftop Lease Agreem ent only allowed for cellular com m unications). (Id.) 7 lim itations, and New Cingular is not estopped from asserting that defense. Accordingly, sum m ary judgm ent will be granted in favor of New Cingular on the conspiracy claim . B. Th e re Is A Ge n u in e Is s u e Of A Mate rial Fact As To Liability Fo r Co u n ts 2 , 5 , 6 , 8 , an d 9 , Bu t Marcu s H as Fa ile d To Es tablis h Th e Exis te n ce Of An y Actu al D am age s Fo r Th e s e Co u n ts . Su m m ary Ju d gm e n t W ill Be En te re d Lim itin g Marcu s ’s D am age s To N o m in al D am age s On ly. 1. The claim s addressed in this Section are not barred by the statute of lim itations. This Section addresses three causes of action: (a) trespass to personal property (Counts 2 & 6), (b) unjust enrichm ent (Counts 5 & 8), and (c) conversion (Count 9).4 The claim s avoid the application of the statute of lim itations because, as presented, they are continuing torts. Marcus contends that the Defendants are liable for these claim s because they continuously used the m ultiplexer in the Marcus Centre from the term ination of the original lease until J une 20 10 when the m ultiplexer was disconnected from Bellsouth’s telephone network. (See, e.g., Second Am . Com pl. ¶¶ 40 -42, ECF No. 28.) “A continuing tort is established by continual tortuous acts. Black Diam ond Props. v. Haines, 69 So. 3d 10 90 , 10 94 (Fla. 5th DCA 20 11) (quotation om itted). “A trespass m ay constitute a continuing tort.” Suarez v. City of Tam pa, 987 So. 2d 681, 685 (Fla. 2d DCA 20 0 8). A trespass claim will be deem ed a continuing tort where the defendant’s m anner of trespassing is abatable; that is, if the defendant’s intrusion can be suspended but later resum ed. See Baker v. Hickm an, 969 So. 2d 441, 444 (Fla. 5th DCA 20 0 7). The nature of the trespass in Baker was flooding that occurred only during m ajor rain events. Id. at 442. The flooding was caused by the way that the plaintiff’s neighbor’s hom e was constructed. Id. The court determ ined this was a continuing tort because the trespass (the overflow condition) was abatable, and in fact had been abated. Id. at 444. A cause of action for unjust enrichm ent is an equitable claim that im plies a contract as a m atter of law even though there is no actual contract between the parties. 14th & Heinberg, LLC v. Terhaar & Cronley Gen. Cont’rs, Inc., 43 So. 3d 877, 8 80 (Fla. 1st DCA 20 10 ). In an action to recover for unpaid installm ent paym ents, a new claim accrues, and the statute of lim itations begins to run, upon each period of non-paym ent. See Isaacs v. Deutsch, 80 So. 2d 657, 660 (Fla. 1955). Marcus’s claim s for trespass to personal property and conversion are continuing torts because both of these claim s are abatable, and have in fact been abated. The Defendants’ use of the m ultiplexer in the Marcus Centre could be prevented by shutting off the power to the equipm ent closet, and later resum ed by restoring the power to the equipm ent. Marcus did in fact shut down the m ultiplexer in April 20 10 . (Marcus Aff. ¶ 31, ECF No. 83-1.) Marcus’s claim s for unjust 4 All of these claim s have a statue of lim itations of four years. Fla. Stat. § 95.11(3)(h) (20 12) (trespass to personal property & conversion); Fla. Stat. 95.11(3)(k) (20 12) (unjust enrichm ent). 8 enrichm ent are continuing torts because these claim s m ay be fairly construed as seeking installm ent paym ents from the Defendants. Any claim s that occurred m ore than four years ago are still barred by the statute of lim itations. The continuing tort doctrine does not save stale claim s. But since these are continuing torts (i.e., new causes of action were continuing to arise) Marcus m ay reach back four years from the date this lawsuit was first filed and proceed forward on those claim s. Since it is undisputed that the m ultiplexer was deactivated in J une 20 10 , the actionable period of these claim s is from J anuary 25, 20 0 8 to J une 20 10 . 2. There is a genuine issue as to liability on these claim s so sum m ary judgm ent is not appropriate on the issue of liability. Having determ ined that the Section B claim s are not barred by the statute of lim itations or som e other affirm ative defense, the next question is whether there is any disputed fact that the Defendants continuously used the m ultiplexer as alleged. Paul Marcus explained that representatives from one or both of the Defendants told him that shutting off power to the m ultiplexer “could” cause a disruption to telephone services in the area. (Marcus Aff. ¶¶ 23, 33, 35.) But it is undisputed that “no service was lost or im pacted when [Marcus] tem porarily powered down the m ultiplexer in April 20 10 .” (Schneider Aff. ¶ 25, ECF No. 75.) Marcus argues that the Defendants’ conduct “suggests” that shutting off the m ultiplexer in April 20 10 adversely affected the Defendants’ custom ers in the area. (Pl.’s Stm t Facts ¶ 10 4, ECF No. 84.) But Argum ent is not evidence, and allegations and speculation are not enough on sum m ary judgm ent. Marcus has not presented an y evidence that any custom ers lost services because the m ultiplexer was shut off. Marcus could have filed affidavits or taken the depositions of som e of his neighbors who allegedly lost service. Or Marcus could have sent a request for production to the Defendants to get their service records for that tim e period, in that area, to show that som e custom ers lost service. Marcus m ay not sim ply rest on his allegations in the face of the Defendants’ contrary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). So, the evidence shows that Defendants were not using Marcus’s m ultiplexer as a critical com ponent to deliver services to Marcus’s neighbors. On this point there is no dispute.5 But there is one additional allegation that lingers. Paul Marcus testified that a New Cingular technician inform ed him that the m ultiplexer in the Marcus Centre was being used as a “back-up unit” for New Cingular’s service in the area. (Marcus Aff. ¶ 33, ECF No. 83-1.) The Defendants have presented evidence that the m ultiplexer “did not, and could not” provide any 5 Even if Marcus was able to present evidence that service was disrupted when the m ultiplexer was shut down, this fact would not alter the conclusion , in this Section, that Marcus has presented no evidence of dam ages and is thus lim ited to nom inal dam ages only. 9 services to any custom ers in the area. (Schneider Aff. ¶ 21, ECF No. 75.) Unlike the previous exam ple, the Defendants’ evidence on this allegation does not go the extra step, but rather sim ply and directly contradicts Marcus’s evidence. In other words, there is a genuine issue as to the m aterial fact of whether the Defendants were using Marcus’s m ultiplexer in som e m anner as a back-up for services in the area. In this m anner, it is plausible that the Defendants could have received som e value, even if it was m erely the reassurance that if their prim ary units in the area went down, they could activate Marcus’s unit as a back-up. There is no evidence that they ever did activate the unit, but the sim ple fact that they allegedly could is enough to support Marcus’s allegation that the m ultiplexer was being used by the Defendants in som e beneficial way. 3. Marcus has presented no evidence of any actual dam ages, and no evidence of any purported benefit. The Defendants contend that Marcus has failed to adduce any evidence of dam ages for its claim s. Citing to the deposition of Paul Marcus, the Defendants argue that Marcus “has produced zero evidence to substantiate or establish the existence of any of its alleged dam ages. In fact, [Paul Marcus] adm itted at his deposition that Marcus . . . does not have evidence of any . . . dam ages.” (Defs.’ Mot. Sum m . J . 20 , ECF No. 77 (citing Marcus Dep. 146:8-12, 148:15-24, 151:2-14); see also Defs.’ Stm t Facts ¶¶ 58-63, ECF No. 78.) Likewise, Marcus has not presented any evidence as to the value of any benefit that the Defendants received by allegedly having the m ultiplexer available as a back-up unit. If anything, the evidence shows that there could not have been m uch benefit, if any, because the m ultiplexer was obsolete by 20 10 . (Schneider Aff. ¶¶ 24, 27, ECF No. 75.) In response, Marcus argues that actual dam age is not a necessary elem ent for the claim s of unjust enrichm ent, conversion, and trespass. (Pl.’s Resp. 18 , ECF No. 83.) Marcus contends that it is entitled to “judgm ent for nom inal dam ages and costs even without later proving actual dam ages.” (Id.) The Defendants have presented probative evidence dem onstrating that Marcus has not suffered any actual dam ages. It is thus Marcus’s obligation to “go beyond the pleadings . . . and designate specific facts showing that there is a genuine issue” that it has sustained actual dam ages. See Celotex, 477 U.S. at 323-24. Marcus has failed to do so. (Pl.’s Resp. 18, ECF No. 83.) Additionally, Marcus has not offered any evidence of the value of the purported benefit that the Defendants allegedly received. Marcus’s Response Brief essentially adm its that there is no evidence of actual dam ages because Marcus fails to argue the point, and fails to cite to any record evidence to support the point. In doing so, Marcus has forfeited any argum ent that actual dam ages exist or that the benefit allegedly received by the Defendants had any value. See Benoit v. U.S. Dep’t of Agric., 60 8 F.3d 17, 21 (D.C. Cir. 20 10 ). At this point, by its own adm ission, only nom inal dam ages are in play. 10 IV. Co n clu s io n For the reasons explained above, the Defendants’ Motion for Sum m ary J udgm ent (ECF No. 76) is GRAN TED in p art, an d D EN IED in p art. Sum m ary judgm ent is granted in favor of the Defendants as to Counts 1, 3, 4, and 10 because these claim s are barred by the statute of lim itations, have been released, or have no factual support in the record. Sum m ary judgm ent is denied as to liability for Counts 2, 5, 6, 8, and 9 – there is still a dispute over whether the Defendants actually used the m ultiplexer as a back-up unit and that dispute is for the fact-finder to resolve. But, partial sum m ary judgm ent is granted as to dam ages for Counts 2, 5, 6, 8, and 9 to the extent that even if Marcus is able to m eet its burden of persuasion on these Counts, it m ay only recover nom inal dam ages because it has failed to present any evidence of actual dam ages. D ON E an d ORD ERED in cham bers, at Miam i, Florida, on Septem ber 3, 20 13. ______________________________ ROBERT N . SCOLA, JR. U N ITED STATES D ISTRICT J U D GE 11
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