Giorgilli v. Goldstein et al, No. 1:2013cv02544 - Document 32 (D. Md. 2014)

Court Description: MEMORANDUM OPINION. Signed by Magistrate Judge Susan K. Gauvey on 2/26/14. (dass, Deputy Clerk) (c/m 2/26/14)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JOHN AMERICO GIORGILLI, * Plaintiff * v. * HOWARD R. GOLDSTEIN & LATITUDE 26 INVESTMENTS, LLC, * * SKG-13-2544 * * Defendants. * CIVIL NO. * * * * * * * * * * MEMORANDUM Now pending is Defendants motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) & (6), or, alternatively, motion for summary judgment pursuant to Fed. R. Civ. P. 56. Briefing 105.6. is No hearing is necessary, Local Rule For the reasons set forth herein, this Court GRANTS Defendants Defendant complete. (ECF No. 10). motion Latitude to 26 dismiss Plaintiff s Investments, LLC, claims GRANTS against Defendants motion to dismiss Plaintiff s claims for punitive damages, and GRANTS Defendants motion for summary judgment. 1 I. Background1 On June 6, 2013, Plaintiff and Defendant Howard Goldstein ( Defendant Goldstein ) entered into a contractual relationship wherein Defendant Goldstein thousand dollars ($20,000). The purpose of the agreed to lend Plaintiff twenty (ECF No. 2, ¶5; ECF No. 10, Ex. 1). aforementioned contract was to provide Plaintiff with operating capital for two startup companies, a commercial crabbing business and a boat manufacturing business. (ECF No. 2, ¶5). On June 5, 2013, Defendant Goldstein wire transferred to Plaintiff the agreed upon twenty thousand dollars ($20,000). and (ECF No. 10, Ex. 2). Defendant Goldstein entered On August 1, 2013, Plaintiff into an additional contract providing for another loan of twenty thousand dollars ($20,000) with a revolving line of credit up to fifty thousand dollars ($50,000). (Id., Ex. 3). The August 1, 2013, agreement stated [a]ny requested advances on the Line of Credit shall be honored by [Defendant Goldstein] and paid to [Plaintiff] within Five (5) days. (Id.) Defendant Goldstein wire transferred the initial twenty thousand dollar ($20,000) loan to Plaintiff on August 1, 2013. (Id., Ex. 4). 1 Because, as will be discussed infra, the Court is of the opinion that summary judgment is appropriate, the facts and the inferences to be drawn therefrom are taken in the light most favorable to the party opposing the motion for summary judgment, Plaintiff. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008). 2 Thereafter, on August 8, 2013, Plaintiff sent a Notice of Intent to Defendant Goldstein s counsel making a written request for an additional twenty thousand dollars ($20,000), pursuant to the revolving line of credit in the August 1, 2013, agreement. (ECF No. 10, Ex. 5). Defendant Goldstein failed to transfer the twenty thousand dollars ($20,000) to Plaintiff within the fiveday payment contract. Goldstein period as agreed (ECF No. 2, ¶5). agreed to pay upon in the August 1, 2013, On September 3, 2013, Defendant Plaintiff thirty thousand dollars ($30,000) as the final draw on the line of credit unless and until the line of credit was reduced. Also action on September against Defendant Investments, LLC, performance, actual relief. II. 3, for 2013, and Plaintiff Goldstein breach of punitive (ECF No. 10, Ex. 6). and filed Defendant contract, damages, the Latitude seeking as present well 26 specific as other (ECF No. 1). Standard of Review A. Standard for Dismissal under Rule 12(b)(1) The burden of proving subject-matter jurisdiction is on the Plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (noting challenge may be either facial, i.e., complaint fails to allege facts upon which subject-matter jurisdiction can be based, or factual, i.e., jurisdictional allegations of complaint 3 are not true). See also Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (same); Richmond, Fredericksburg & Potomac Ry. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991) (same). the case district of a court factual to challenge, consider it is evidence permissible outside the In for a pleadings without converting the proceeding to one for summary judgment. Richmond, 945 F.2d at 768 (citing Adams, 697 F.2d at 1219). The court should grant the 12(b)(1) motion only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Richmond, 945 F.2d at 768. B. Standard for Dismissal under Rule 12(b)(6) A complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. (quoting (2007)). Bell Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) Atlantic Corp. v. Twombly, 550 U.S. 544, 570 Facial plausibility exists when the plaintiff pleads factual content that allows the court to draw the reasonable inference alleged. that possibility the defendant is liable Iqbal, 556 U.S. at 678. of plausible claim. misconduct is not Id. at 679. for the misconduct An inference of a mere sufficient to support a As the Twombly opinion stated, Factual allegations must be enough to raise a right to relief above the speculative level. 550 U.S. at 555. 4 A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. ¦ Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). motion to dismiss a court must Although when considering a accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555. C. Standard for Summary Judgment The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. (1986) (citing predecessor to current Rule 56(a)). Fed. R. 317, 322 The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. 144, 157 (1970). Adickes v. S.H. Kress & Co., 398 U.S. If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. Lobby, Inc., 477 U.S. 242, 248 See (1986). Anderson v. Liberty However, the mere existence of a scintilla of evidence in support of the [opposing 5 party s] position summary judgment. is insufficient Id. at 252. to defeat a motion for The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts genuine dispute for trial, Fed. R. Civ. P. 56(c)(1). showing a Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. III. Rule 56(c)(4). Discussion A. Motion to Dismiss - Subject Matter Jurisdiction Defendants contend that jurisdiction over this case. Plaintiff asserts this Court lacks subject matter subject matter The Court disagrees. that this Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332(a). That statute grants original jurisdiction to district courts in all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between . . . (2) citizens 6 of different states. Id. Defendants concede that complete diversity of citizenship exists in this case. that the (ECF No. 10, 14). amount in controversy Defendants dispute, however, exceeds the sum or value of seventy five thousand dollars ($75,000), exclusive of interests and costs. (Id. at 14-16). The burden of proving subject-matter jurisdiction is on the Plaintiff. Adams, 697 F.2d at 1219 (noting challenge may be either facial, i.e., complaint fails to allege facts upon which subject-matter jurisdiction can be based, or factual, jurisdictional allegations of complaint are not true). i.e., Here, Defendants have raised a factual challenge to the jurisdictional allegations of jurisdictional Accordingly, Plaintiff s amount this in Court complaint, specifically, controversy. (ECF may evidence consider No. 10, the 13-14). outside the pleadings without converting the proceeding to one for summary judgment. 1219). Richmond, 945 F.2d at 768 (citing Adams, 697 F.2d at Where, as here, the factual basis for the jurisdictional amount in controversy is challenged, the party seeking to invoke the jurisdiction of the federal courts carries the burden of proving that it does not appear to a legal certainty that its claim is for less than the jurisdictional amount. Wiggins v. N. Am. Equitable Life Assurance Co., 644 F.2d 1014, 1017 (4th Cir. 1981) (quoting McDonald v. Patton, 240 F.2d 424, 426 (4th Cir. 1957)). If it appears to a legal certainty that the Plaintiff 7 cannot recover the the case dismissed for want of subject matter jurisdiction. Id. Determining purposes of jurisdictional the federal value of subject minimum, the matter matter in will controversy jurisdiction is be for naturally decided under federal law; yet, in a diversity of citizenship case, federal courts must look to state law to determine the nature and extent of the right the Plaintiff is seeking to have enforced or protected. 14AA Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3702, at 268-69 (4th ed. 2011). This includes examining the forum the state s rules regarding measure of damages, availability of special and punitive damages, as well as a right to attorney s fees. Id. at 271-73. Sitting in diversity, this Court is bound to apply Maryland s rules for choice of law. See Klaxon 496 Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941); DiFederico v. Marriott Int l, Inc., 714 F.3d 796, 807 (4th Cir. 2013). On this point, Maryland law holds that the law of the jurisdiction where the contract was made controls its validity and construction (lex loci contractus). Commercial Union Ins. Co. v. Porter, 698A2d 1167, 1199 (Md. 1997); Kramer v. Ball s Park Place, Inc., 535 A.2d 466, 467 (Md. 1988). Here, the parties agree, and the August 1, 2013, contract expressly states, that Maryland law controls the agreement s validity and construction. (ECF No. 10, 7; ECF No. 2, ¶1; ECF No. 10, Ex 3). 8 Accordingly, the Court shall look to Maryland law of contracts to determine whether Plaintiff s claim meets the jurisdictional minimum amount in controversy. First, the Court finds available to Plaintiff. that punitive damages are not In Maryland, punitive damages are not available in a pure action for breach of contract, even if the breach is malicious. Saval v. BL Ltd., 710 F.2d 1027, 1033 (4th Cir. 1983); Schaefer v. Miller, 587 A.2d 491, 492-93 (Md. 1991); St. Paul at Chase Corp. v. Manufacturers Life Ins. Co., 278 A.2d 12, 33-34 (Md. 1971). Punitive damages may only be awarded in a breach of contract case if a tort arises out of the contractual relationship. Am. Laundry Machinery Industries v. Horan, 412 A.2d 407, 417 (Md. 1980). arise out of the Further, where a tort does, in fact, contractual relationship, actual malice is required and the relationship between the tortuous conduct and the contract must be so intertwined that one could not be viewed in isolation from the other. Id.; General Motors Corp. v. Piskor, 381 A.2d 16, 21 (Md. 1977). Here, August 1, Plaintiff agreement. complaint Defendant 2013, within Goldstein agreement the concedes failing by that to five-day (ECF No. 10, 19). alleges injury [a]s window he breached the disburse funds to prescribed by the Although Plaintiff s amended a direct result of the defendant(s) tortuous acts in which they willfully, knowingly 9 and intentionally refused to advance the plaintiff the necessary funds (ECF No. 2, ¶9), Plaintiff has pled no facts constituting actual malice on the part of Defendants. Actual Malice being characterized as the performance of an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being deliberately and willfully injure the plaintiff. K & K Mgmt., Inc. v. Lee, 557 A.2d 965, 984 (1989) (citations omitted); Komornik v. Sparks, 629 A.2d 721, 725 (Md. 1993). particularized facts Because Plaintiff has failed to plead any showing actual malice, sufficient to satisfy Rule 9(b), it is a legal certainty that Plaintiff cannot recover punitive damages.2 Second, Plaintiff. attorney s In Maryland, fees are attorney s likewise fees are unavailable generally to only available to a plaintiff where: (1) the parties to the contract agree in that contract to pay attorney s fees; (2) a statute allows for such fees; (3) wrongful conduct of the defendant forced the plaintiff into litigation with a third party; (4) the plaintiff is forced to defend malicious prosecution; or (5) they are considered as an element of a punitive damages award. St. Luke Evangelical Lutheran Church, Inc. v. Smith, 568 A.2d 35, 39-41 (Md. 1990) (citations omitted). 2 None of these exceptions The Court hereby acknowledges Defendants Rule 12(b)(6) motion to dismiss Plaintiff s claims for punitive damages (ECF No. 10) and, for the foregoing reasons, GRANTS the motion. 10 applies in this case, in particular, the August 1, 2013, agreement only provides for the right to attorney s fees in the event of a collection Plaintiff, default. also a legal action following a (ECF No. 10, Ex. 3). certainty that Borrower, i.e., Accordingly, it is Plaintiff cannot recover attorney s fees. Finally, the actual damages. Court considers Plaintiff s entitlement to In Maryland, courts assess actual damages for breach of contract following the two-part principle established in Hadley v. Baxendale. See Burson v. Simard, 35 A.3d 1154, 1159 (Md. 2012) (citing Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854)). Under this standard, the non-breaching party in a breach of contract action may recover: (1) damages as may fairly and reasonably be considered to arise naturally from the breach of the contract itself (general damages); and (2) such damages as contemplation may of reasonably both be supposed parties, at the to have time been they in the made the contract, as the probable result of the breach of it (special damages). Id. (citing Lloyd v. General Motors Corp., 916 A.2d 257, 288 n.25 (2007)); CR-RSC Tower I, LLC v. RSC Tower I, LLC, 56 A.2d 170, 188-189 (Md. 2012). contract to lend money, the In the case of a breach of a borrower can get judgment for damages measured by his resulting injury so far as the defendant had reason to foresee such injury when the contract was made 11 . . . [d]oubtless, there are many cases in which [the lender] has no reason to foresee that the borrower will be unable to secure money elsewhere or that there will be special injuries; but if he has such reason he must make good the loss. at Chase Corp., 278 A.2d at 35-36 (citing St. Paul Restatement of Contracts § 343 (1932)). Here, on August 8, 2013, Plaintiff requested a twenty thousand dollar ($20,000) payment pursuant to the line of credit established under the August 1, 2013, agreement. Ex. 5). (ECF No. 10, Defendants concede that they breached that agreement when they failed to disburse those funds to Plaintiff within the five-day window prescribed by the contract. (ECF No. 10, 19). Accordingly, Plaintiff s general damages, such damages as may fairly and reasonably be considered to arise naturally from the breach of the contract itself, are fairly and reasonably on the order of twenty thousand dollars ($20,000), the requested sum. Plaintiff s amended complaint, however, asserts further that as a result of Defendants failure to timely disburse funds to him, Plaintiff s businesses irreparable harm. have suffered (ECF No. 2, ¶9-10). lost profits and Moreover, Plaintiff s proffers that, because his businesses are seasonal in nature and were near inception at the time of breach, he was particularly injured by Defendants breach. (Id. ¶¶ 5, 9). 12 Plaintiff, a pro se litigant, has pled few facts indicating entitlement to special damages. Specifically, the pleadings are lacking in facts showing that Defendants contemplated, at the time of contracting, that a breach would cause injury Plaintiff beyond those arising naturally from the breach. to The Court, however, finds that facts, including the seasonal and fledgling nature particularized inference of to that contracting, Plaintiff s allow the court Defendants that a businesses, to are draw contemplated, failure to timely Plaintiff would lead to special injuries. sufficiently the at reasonable the of funds disburse time to The Court, therefore, concludes that it does not appear to a legal certainty that Plaintiff cannot recover Defendants breach. special damages resulting from Although the Court finds it highly unlikely that Plaintiff is entitled to the actual damages pled in his amended complaint, standard for one million determining the dollars ($1,000,000), jurisdictional amount the in controversy is a lenient one and it is not clear to a legal certainty that Plaintiff cannot recover special damages sufficient to make the value of his claim greater than seventy five thousand dollars ($75,000). The Court, therefore, must DENY Defendants motion to dismiss for lack of subject matter jurisdiction. 13 B. Motion to Dismiss Failure to State a Claim Defendants also contend, pursuant to Fed. R. Civ. P. 12(b)(6), that Plaintiff s claims against both Defendants should be dismissed for failure to state a claim upon which relief may be granted and that Plaintiff s claim against Defendant Latitude 26 Investments, LLC should likewise be dismissed. 11-12). (ECF No. 10, The Court now addresses both motions. The present contract. case arises (ECF No. 2, ¶5). out of the August 1, 2013, That agreement provided for a loan of twenty thousand dollars ($20,000) and a revolving line of credit up to fifty thousand dollars ($50,000) between Defendant Goldstein, lender, and Plaintiff, borrower. 3). The August 1, 2013, agreement also (ECF No. 10, Ex. stated that [a]ny requested advances on the Line of Credit shall be honored by [Defendant Goldstein] and paid to [Plaintiff] within Five (5) days. (Id.) Moreover, the language of the agreement expressly states that the contract is by and between HOWARD GOLDSTEIN, a resident of the State of Maryland (hereinafter referred to as the Lender ) and JOHN A. GIORGILLI, a resident of the State of Maryland (hereinafter referred to as the Borrower ) and the document only contains the signatures of Howard Goldstein and John A. Giorgilli. (Id.) As discussed supra, this Court, sitting in diversity, is bound to apply Maryland law to determine the nature and extent 14 of the right Plaintiff is seeking to have enforced or protected. See Klaxon, 313 U.S. at 496; DiFederico, 714 F.3d at 807. Here, the parties agree that the August 1, 2013, agreement constitutes a valid contract and that Maryland law controls the agreement s validity and construction. No. 10, Ex 3). law of (ECF No. 10, 7; ECF No. 2, ¶1; ECF Accordingly, the Court shall look to Maryland contracts to determine whether Plaintiff s amended complaint pleads a plausible claim for breach of contract. On this point, Maryland law holds that failure by one party to perform a valid and subsisting obligation to the other confers upon the non-breaching party the right to a cause of action for breach. RFC Northeast, LLC v. BAA Maryland, Inc., 994 A.2d 430, 442 (Md. 2010). Having considered Plaintiff s amended complaint, the Court finds that it contains sufficient factual matter, accepted as true, to state a plausible claim for breach of contract. Iqbal, 556 U.S. at 678. See Plaintiff s amended complaint contends that he requested the advancement of additional funds, per the terms of the contract, numerous times and by various means, and all requests were ultimately denied by defendant(s). Further, the amended complaint asserts that [a]s a (Id.) direct result of defendant(s) tortuous acts in which they willfully, knowingly and intentionally refused to advance the plaintiff the necessary funds, per the agreed upon contract, Plaintiff has 15 lost income and suffered irreparable harm. Moreover, Defendants own motion (Id. at ¶¶9-10). concedes that Defendant Goldstein breached the August 1, 2013, contract by failing to disburse the twenty thousand dollars ($20,000) owed to Plaintiff within the five-day window prescribed by the agreement. No. 10, 19). amended The complaint contract. Court, pleads therefore, a Defendants finds plausible Rule that claim 12(b)(6) (ECF Plaintiff s for breach motion of to dismiss Plaintiff s amended Plaintiff s claims against both Defendants is DENIED. The complaint Court, only however, pleads a finds plausible that claim for relief against Defendant Goldstein, not Defendant Latitude 26 Investments, LLC. Plaintiff and Defendant Goldstein are the only parties to the August 1, 2013, contract and Plaintiff has plead no facts demonstrating any form of contractual privity between himself and Defendant Latitude 26 Investments, LLC. Accordingly, Plaintiff has only plead sufficient factual content to allow the Court to draw the reasonable inference that Defendant Goldstein is liable for the misconduct alleged. 678. See Iqbal, 556 U.S. at Consequently, Defendant s Rule 12(b)(6) motion to dismiss Plaintiff s claim against Defendant Latitude 26 Investments, LLC is GRANTED. Heretofore, the Court shall refer only to Defendant Goldstein. 16 C. Motion for Summary Judgment Accord and Satisfaction Defendant Goldstein also asserts entitlement to summary judgment, pursuant to Fed. R. Civ. P. 56, because Plaintiff s claim is barred satisfaction. by the affirmative (ECF No. 10, 17). defense of accord and Because this Court is bound in this diversity case to apply Maryland s rules for choice of law, see Klaxon, 313 U.S. at 496; DiFederico, 714 F.3d at 807; the Court will likewise look to Maryland law affirmative defense of accord and satisfaction. governing the On this point, Maryland law holds that to prevail on the affirmative defense of accord and satisfaction, a Defendant must prove: (1) that a dispute arose between the parties about the existence or extent of liability; (2) that, after the dispute arose, the parties entered into an agreement to compromise and settle the dispute by the payment by one party of a sum greater than that which he admits he owes and the acceptance by the other party of a sum less than that which he claims is due; and (3) that the parties performed that agreement. Wickman v. Kane, 766 A.2d 241, 245 (Md. 2001) (citing Air Power, Inc. v. Omega Equip. Corp., 459 A.2d 1120 (Md. 1983)). compromise of a dispute between the parties will The serve as consideration for an accord and satisfaction when the dispute is bona fide: that is, the dispute is asserted in good faith and the subject matter is reasonably doubtful. v. Cearfoss, 51 A.2d 264, 267-68 (Md. Id. (citing Snyder 1947)). The latter element is required because forbearance of a claim which is not 17 asserted in good faith, i.e., is asserted for the purposes of vexation or in order to realize on its nuisance value, is of no value. Id. at 245-46 (quoting 1 Corbin, Contracts § 140 (1963 & Supp. 1971)). Similarly, when a claim is liquidated, payment of an undisputed claim or debt that is liquidated and presently due cannot support an accord and satisfaction. 246 (citing Reece v. Reece, 212 A.2d 468 (Md. 1965)) Id. at In that instance, there must be some collateral consideration beyond the past consideration to constitute an accord. Id. (citations omitted). As to the present case, Defendant Goldstein concedes that he breached the August 1, 2013, agreement by failing to disburse the twenty thousand dollars ($20,000) owed to Plaintiff within the five-day window prescribed by the agreement. 19). (ECF No. 10, Defendant Goldstein, however, asserts that, on September 3, 2013, the parties reached a mutually agreeable resolution of the present dispute whereby Defendant Goldstein paid Plaintiff thirty thousand Plaintiff s dollars agreement to ($30,000) settle Defendant Goldstein s prior breach. any in consideration disputes arising (Id., Ex. 4). for from The Court, therefore, will consider whether such an agreement constitutes an accord and satisfaction settling Plaintiff s present claim. Defendant Goldstein contends that his breach only entitles Plaintiff to the twenty thousand dollars ($20,000) he failed to 18 pay under the August 1, 2013, agreement. (ECF No. 10, Ex. 4). Conversely, Plaintiff s amended complaint makes clear that he claims one million dollars ($1,000,000) in actual damages, two million dollars ($2,000,000) in punitive damages, as well as the right to attorney s fees and costs. (ECF No. 2). Defendant Goldstein has submitted written proof that on September 3, 2013, he tendered which thirty Plaintiff thousand accepted. dollars (ECF No. ($30,000) 10, Plaintiff, 6). Ex. to Moreover, Defendant Goldstein has filed an affidavit on his behalf and proffers therein that the thirty thousand dollar ($30,000) payment was made in consideration for Plaintiff s agreement to compromise the dispute arising from Defendant Goldstein s prior breach. (Id., Ex. 4). Plaintiff contesting has the offered evidence no evidence submitted either by supporting Defendant regarding the September 3, 2013, transaction. or Goldstein In particular, Plaintiff has not acknowledged or disputed receipt of the thirty thousand dollar ($30,000) payment nor has Plaintiff contested that the payment agreement Goldstein s to was settle prior made in consideration any dispute breach. Faced arising with a for out motion Plaintiff s of Defendant for summary judgment, Plaintiff may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine 19 dispute for trial, Fed. R. Civ. P. 56(c)(1). Where, as here, a party fails to address the opposing party s assertion of fact, as required by Rule 56(c), the court may: (2) consider the fact undisputed for purposes of the motion; and (3) grant summary judgment if the motion and supporting materials including the facts considered undisputed show that the movant is entitled to it. Fed. R. Civ. P. 56(e). Having considered the present motion, the Court finds that Defendant Goldstein has established his entitlement to summary judgment. The record demonstrates that Defendant Goldstein tendered payment of a sum greater than that which he admits he owes, Plaintiff accepted a sum less than that which he claims is due, and thirty thousand dollars ($30,000) was tendered to Plaintiff in consideration for the compromise of the dispute presently before this Court. See Wickman, 766 A.2d at 245. These facts are undisputed, Fed. R. Civ. P. 56(e). Accordingly, the Court finds that Defendant Goldstein has established the affirmative defense of judgment is appropriate. VI. accord and satisfaction and summary A separate order shall issue. Conclusion For the foregoing reasons, Defendants motion to dismiss for lack of subject matter jurisdiction is DENIED; Defendants motion to dismiss for failure to state a claim upon which relief 20 may be granted is DENIED; Defendants motion to dismiss Plaintiff s claims for punitive damages is GRANTED; Defendants motion to dismiss Plaintiff s claims against Defendant Latitude 26 Investments, LLC is GRANTED; summary judgment is GRANTED. Date: _2/26/2014_ and Defendants motion for A separate order shall issue. ___________/s/__________________ Susan K. Gauvey United States Magistrate Judge 21