-DEM Corbin Bernsen v. Innovative Legal Marketing, LLC, No. 2:2011cv00546 - Document 67 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION re: 50 MOTION for Summary Judgment by Corbin Bernsen. Accordingly, Bernsen's Motion for Summary Judgment on ILM's Counterclaim is HELD IN ABEYANCE until trial. IT IS SO ORDERED. Signed by District Judge Rebecca Beach Smith and filed on 9/6/12. Copies distributed 9/7/12.(ldab, )
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UNITED STATES EASTERN DISTRICT Norfolk CORBIN DISTRICT OF COURT VIRGINIA Division BERNSEN, Plaintiff, ACTION v. INNOVATIVE LEGAL MARKETING, NO. 2:llcv546 LLC, Defendant. MEMORANDUM This matter Judgment, together Legal with by an for Corbin the court Bernsen on LLC filed ("ILM") Judgment filed his in in its ("ILM's Reply a Motion ("Bernsen") Memorandum Summary Bernsen before accompanying Marketing, Motion and filed comes OPINION on June Response") on July 2012, Innovative to on Summary 21, Support. Opposition Support for Bernsen's July 11, 5, 2012, 2012. The matter is now ripe for review.1 I. The factual Recommended United 1 of that arguments are would be Civ. not P. 78(b); of and Procedural of a the a briefs adequately Local case is on and 7(J). out Fact Report the by in full in the section of the and August presented, R. laid 3, and oral as the Recommendation 2 012. record, unnecessary, significantly Civ. is History Material Judge's hearing hearing aided this Undisputed Magistrate requested examination determined history Findings States Bernsen Factual the After the court facts and decisional argument. full See has legal process Fed. R. ("R&R") filed Memorandum Order ILM To Agreement Section might Id. to briefly into an make any had through November 9, Agreement. summary Magistrate alleging The motion May recommendation. The R&R objected 5, matter of Agreement. July law that 18, was 2012, to ILM had was filed the not firms. to on R&R's doing with anything public and the Id. at contract that refused that 4. and action unjust counterclaim to the ILM a for moved United prepare 20, on breached 2012, a States report 2012. recommended its in Agreement instant a The disrepute. asserting in June waived 2. clause himself 27, R&R morality the referred 2012, corporation Agreement of Mem. Id. filed April 2-8; its campaign. into filed in ("Agreement") incidents. Bernsen On law clause ILM court R&R Bernsen, breach 4-5. a the to Bernsen 4-5. CASE from morality for and clients separate on on its five Answer Judge Bernsen this Virginia things, payments Compl. judgment. BIG 2011, 2011, See their claims a agreement terminated the in 7, See or by See is lawyers other ILM alleging enrichment. ILM for to ILM, additional actions ILM, 2012. prohibited 2011, October against 14, among violated his On of August spokesperson himself, June adopted related which In and services contained, bring 2012, summarize, a actor, VI, Bernsen 20, filed marketing entered Bernsen, June Order 3. providing on Bernsen finding rights and under as a the The court denying in August 14, language part 2012. of court the morality claim Bernsen clause, 10. for favor on of to as U.S. the a to of alleged breach in on that summary the however, Agreement motion on that clause; the ILM's grant law remained dismissed if element that of of fact the has (1986). as and of of dispute by ILM. Bernsen's claim. Id. judgment in his when finds A the on which Celotex no is should that grant party v. genuine Lobby, of most entitled adequate existence Corp. light is Liberty after the the party v. court in there moving party, case, appropriate and Anderson establish trial. is whole the (1986). party's at a that law. to 56 party, nonmoving failed proof Rule nonmoving 248-50 discovery, 323 waiver and under record matter 242, judgment 317, facts and Summary Judgment Standard the material judgment burden Bernsen's part Judgment of morality granted court judgment viewing favorable 477 to matter in ILM's Counterclaim. Summary issue and court the a granting Summary a material conduct II. court, as enrichment moves as included motion Order for found because The unjust now Motion court ILM's Bernsen's Order Memorandum ILM's Agreement denied concerning its The the the Mem. entered an will Catrett, to Inc., summary time for essential bear 477 the U.S. In the essence, [trier party. of the fact] Anderson, summary in See Inc. Pleasant v. 1993) ("A evidence id. that Conclusory suffice, nor does Causey the mere find must for summary ILM is to seek return undisputed that judgment without Balog, specific 162 existence be two First, F.3d of evidence of he not issue 163 be Anderson, of 477 which (4th Cir. by 249-50)). support, (4th scintilla Serv., sufficiently at 802 & for defeated not U.S. facts affidavits, evidentiary on the for Cir. 1998), evidence U.S. the jury do at in 252. could Id. Analysis arguments in alleges the monies fully on 160, which motion Supplies 'is 795, a position," he may 477 a genuine F.2d on non-moving beyond Med. or Anderson, go a M 981 the plaintiff." advances judgment. & the instead show M for defeat must colorable' Ill. Bernsen to Inc., summary plaintiff's "there reasonably v. To rely also Hosp., (quoting "[t]he of see 'merely statements, not Rather, 324; for is and "evidence find" party evidence Valley motion probative.'" support at present 252. nonmoving other trial. at pleadings, or must reasonably U.S. the the depositions, could 477 judgment, alleged non-movant support that paid performed to there him, the of his is motion no for basis for contending services that it required of him under Section I of the Agreement.2 extent that Bernsen Agreement, the Agreement includes material of Agreement. as to contract, has a of morality that Thus, 7. and a his the of the that Bernsen's a material performed VI further material To the under Section to whether constitute fully Supp. performance found as Order 10. Bernsen his clause, exists clause See Mem. on already fact this whether breach a alleged of the dispute remains duties under the and summary judgment on that ground is inappropriate. Bernsen ILM's court dispute violations relies See Mem. next claim of breach of the claim for that $595,791.773 Agreement. damages Bernsen's argues on services, an in there is damages See Mem. alleged contending no flowing Supp. absence that evidence to support from the alleged 9-11. of ILM value rests derived "[b]ecause ILM its from valued 2 As a corollary to this argument, Bernsen contends that ILM, in asking to recover the monies paid under the Agreement, is seeking rescission of the contract, which is inappropriate in a case in which partial performance has already occurred. S_ee Mem. Supp. 8. In its Response, ILM argues it is not requesting but merely rescission and a return to the status quo ante, seeking damages resulting from Bernsen's breach. See ILM's Resp. 2-3. While the remedy for which ILM has asked may be equivalent to rescission, ILM has pled its case as a breach of contract claim seeking damages, and it should be analyzed as such. See Sunrise Continuing Care, LLC v. Wright, 671 S.E.2d 132, 136 (Va. 2009) (acknowledging that the plaintiffs "pursued the remedy of rescission under the guise of a breach of contract claim," but nonetheless analyzing the case as a breach of contract 3 This claim seeking figure damages). represents the under the Agreement before infra note total amount its termination. 5. 5 ILM paid See to ILM's Bernsen Resp. 3; adequate performance $595,791.77, actual is that Morals and at ILM's 1 Brien engages clients ILM damages to satisfy trial. ILM's view ruling evidence burden." on the elements of ILM has its "[t]he a it met elements a standard the v. is a summary prism Liberty this breach of breach to Sunrise (Va. with reasonable 2009) 2004)). the the Attach. and proceed to the court a v. of 242, to determine (1) a v. by the Wright, George, 594 legally damages." (2) the (3) breach 671 of of S.E.2d S.E.2d "burden law, and obligation; the whether Virginia are 254 consider plaintiff; caused LLC case must evidentiary U.S. Under that bears amount 6 to Care, Filak plaintiff certainty of plaintiff (quoting to action defendant Continuing The action contract or 614 on of 477 juncture. violation (Va. the proof substantive present the contract at the in necessary of of Inc., defendant's 136 sufficient Lobby, a 132, Resp. judgment, for of obligation." to negatively ILM's judgment motion burden damage ILM." is obligation or reflects evidence enforceable injury contrary such breach of to Member, 4. "through Thus, that its evidence Managing behaves least of supporting summary the Anderson (1986) . value at determination ILM's that conduct Agreement sole Johnson, no has jury ILM's in argues Resp. a 4. spokesperson 4. In to Resp. from and Spokesperson entitled "[a] Clause the ILM's affidavit stating 1, is damages." an ILM ILM under 610, proving SunTrust Bank v. Farrar, Davis, if 675 574 the S.E.2d 191. Where reasonable 524 (Va. 2003)). are or the plaintiff Isle cases are particularly has met its RGI, Inc. Cir. 1992), that RGI v. "to breach of County v. Unified the damages for a the Shepherd burden is v. not met from uncertainties, Bank, 675 establish contract Nogiec, S.E.2d damages claim 704 "tremendous at with should S.E.2d The District defendants on the established that defendants' conduct. it 963 for be 83, 86 Court of could Id. any 659. 7 the In offered its summary RGI "had damages" Noting 660 alleging response to of stating information with respect for RGI." judgment put to Id. to the sufficiently resulting that (4th defendant's President, not in evidence as proprietary lost profits prove of ILM First, judgment disadvantage that at by whether 658, information. granted ground F.2d summary RGI situation damages. from one signed competitive instant assessing Inc., judgment, "results directly in in to proprietary disclosure the respect moved affidavit, defendant's UII," which with any damages summary to consider Industries, prove of similar to proof defendants single a facts useful of disclosure motion at burden could not alleged RGI fails the present and that This SunTrust Wight of (quoting 2011). Two the 2009) "derived speculation." certainty" dismissed. (Va. (Va. 514, damages contingencies, 191 alleged S.E.2d 187, the from the affidavit contained facts the only contemplated District held to "bald that allegations to Court's the be a grant genuine damages proven," of President's establish of the summary affidavit issue of but Fourth indicate[d] Circuit judgment. was Id. "simply material fact affirmed at too no 661. It conclusory with regard to damages." Second, plaintiffs support 4 under the as claim jury ILM as under contracted the could the Id. at 135. notes defendant's motion plaintiff's evidence, ILM's Resp. judgment or 4. a In for determine whether regard Anderson 1986) ("[T]he requires the the Liberty standards directed a verdict at than or at to a has met of apply and be to 8 is a his the from value the the for case. judgment applicable This stage. summary the court of proof burden the the of of action. 255 factual by which Care, 242, given was of judgment cause U.S. 'first benefits however, the guided summary Sunrise Continuing Care's holding of 477 whether must the motion plaintiff value evidence care summary verdict, Inc., been To "they in conclusion either they case. Continuing the elements had "no between the the 'actual' poor directed jury that the Sunrise Lobby, determination to care in substantive submission evidentiary both v. a of the amount contended they However, heard rather with the that in 132,4 difference if difference responding motion to the total issue the value average was must See of S.E.2d plaintiffs contract and calculate correctly the for value the at damages the 671 to contract damages, benefits on the receive to Care, equivalent for received." presented the damages their between [they] Continuing sought entitled class' Sunrise defendants had paid were in (U.S. dispute substantive is true stages."). to this at Thus, case. contracted-for Id. Because upon which resorting Court for services the plaintiffs the to held jury of defendants. they This court of damages issue material reasonable S.E.2d Managing 86 contains the (Va. is has ILM. affidavit which at Bernsen's this ILM, to stage, it is allegation made were of if that bound by this ILM evidence damages Virginia the a without Supreme prima judgment in facie claim favor of the presented ILM's "to on the genuine issue at County that indicate damaged in accept as court incurred to ILM. were to some RGI, ILM. the is of any light See the that RGI, accept of no value the most damages, to to services 658. affidavit it to conclusory Bernsen's ILM's a must, favorable F.2d it facts extent court bald, 963 ILM's that specific the 704 that allegation While true in of with Nogiec, Johnson, demonstrate degree 9 v. in clause would damages Brien bald Managing Member value of issue morals not a establish Wight that the has establish affidavit evidence to ILM officer's acts the absolutely no Even evidence proven view not to does alleged of The violates be to failed corporate who contemplated of establish entered Isle akin spokesperson The sufficient award evidence 2011). a an to conclusory ILM only "present received." 136-137. too Member, not actually conjecture," and certainty," 83, services base "failed finds fact. did or contract" Id^ at the could speculation that breach and would as not be enough to damages. entitle Like has not the the offered difference reduce the the value ILM the value of fact that the of value to ILM offered no evidence caused, a damages jury ILM suggest would BIG that it to without resorting ILM failed at this sufficient to raise is given required, R&R 4, and it were is utterly violations. which to to the As determine breach assessing incurred It would as alleged of it clause services upon which However, alleged Bernsen's incapable morals ILM measure received.5 ILM. Bernsen's actual Care, for campaign," the its could services performed CASE of jury the whatsoever that be the the services because value of "Bernsen devoid in which of pale reduction from of Continuing services the any Sunrise violation a used determination the beyond has in Bernsen's clients ILM jury value of that to a evidence the undisputed several any possible to plaintiffs between contracted and certainly ILM may have amount speculation of and conjecture.6 Because specific material evidence fact 5 Moreover, with before even able benchmark respect to Bernsen use from which the late November 7, 2012. signed date to measure 6 Discovery in this case for to damages, juncture a an to genuine essential identify issue of element of as one of the alleged violations of the morals clause occurred be has No is the of contract, the damages. concluded, further stage. 10 a alleged See R&R and the discovery is jury would violations not as a 4. jury trial permitted is at set this its breach proof contract trial, at of the claim court on finds judgment as a matter of law.7 Summary Judgment trial.8 The on Clerk Memorandum Opinion IT IS SO ILM's is to which ILM Bernsen bears will Accordingly, Counterclaim DIRECTED counsel is for the burden of entitled be to Bernsen's Motion for HELD IN forward to the ABEYANCE a copy until of this parties. ORDERED M. Rebecca Beach Smith Chief United States District Judge REBECCA CHIEF Norfolk, 6, case will proceed ILM's which case the jury's verdict, ILM as the to contract the the specifics before the Counterclaim supra See be counterclaim. currently notes supra to defense, will the See STATES DISTRICT JUDGE 2012 contract, on UNITED SMITH Virginia September The BEACH note 5 and trial and on Bernsen's Bernsen's presented to court then of will its Lacking court, judgment and will it 6. 7. 11 not claim the damage any claim of jury. entertain claim of waiver, after upon a from for proffer its breach specifics will entered be of Depending further be breach submitted than for to of that Bernsen the jury.
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