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LO BOSCO v. KURE ENGG. LTD.

July 11, 1995

FRANK LO BOSCO, Plaintiff,
v.
KURE ENGINEERING LIMITED, et al., Defendants.



The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN, District Judge

 This matter is opened before the Court upon the motion of defendants for summary judgment. The motion has been decided upon the written submissions of the parties pursuant to Federal Rule of Civil Procedure 78. For the reasons given below the motion will be granted with respect to counts four, seven, eight, and nine only, and with respect to punitive damages. The motion will be denied as to the rest of the complaint.

 BACKGROUND

 Except as noted below, the facts that constitute the setting of this lawsuit are not disputed. Plaintiff Lo Bosco is an attorney presently employed at a respected law firm in this state. The events that give rise to this action occurred as he began his career. Upon graduating law school in 1987, plaintiff worked for a time at the accounting firm of Arthur Andersen & Company. There he met defendant, Mayling Woo, daughter of defendant Luther Woo. Luther Woo is the president and chief executive officer of defendant Kure Enterprises, a substantial Japanese corporation that markets industrial and automotive products.

 In 1988, plaintiff left Arthur Andersen to take up a judicial clerkship. Upon completion of the clerkship, he secured a position at the Newark law firm of Crummy, Del Deo, Griffinger & Vecchione ("Crummy Del Deo"). He remained at Crummy Del Deo for a short time only, from October of 1989 to January 1990. How he came to leave the firm is central to this lawsuit.

 Mayling and plaintiff were dating from the time plaintiff worked at Arthur Andersen. In August of 1989, after he completed his clerkship, the couple travelled to Hawaii. There Mayling introduced Lo Bosco to her father, Luther. Plaintiff testified that Luther and he discussed his career. Lo Bosco Dep. at 118-29. In September of 1989, Mayling returned from Hawaii and told plaintiff that she was going to quit her job at Arthur Andersen to work for her father. During these months, Mayling was actively searching for real estate ventures on her father's behalf. Mayling Dep. at 125, 298. Mayling inquired of plaintiff where she could get information on possible real estate investments in this country for her father to invest in. Id. at 154-55; Lo Bosco Dep. at 151. The social relationship between plaintiff and Mayling continued. Lo Bosco Dep. at 152.

 Plaintiff had some involvement with Mayling's prospecting efforts at this time. Plaintiff testifies that he did due diligence on a property called Pheasant Hollow at Mayling's request for Luther. Lo Bosco Dep. at 244-4; Mayling Dep. at 372. Plaintiff's 12G Statement ("Plaintiff's 12G"), Exhibit 63 (interview record of Dai-Ichi Bank). Luther provided plaintiff with real estate text books and covered expenses for plaintiff during this period. Luther Dep. at 79. In the end, plaintiff says he recommended against the investment, Lo Bosco Dep. at 206, 208-09 and Luther did not invest. Luther denies knowing that plaintiff investigated the investment for him. Luther Dep. at 67.

 In late 1989, plaintiff claims, Luther and Mayling began to solicit him to leave Crummy Del Deo and work for Luther on a full time basis. The evidence of this solicitation will be discussed more fully below. It suffices to say here that defendants dispute this version of events. Plaintiff alleges that Luther was favorably impressed with the work he did on the Pheasant Hollow prospect, and that Luther recognized that he needed plaintiff's expertise to invest in the United States.

 Plaintiff maintains that he was hesitant to fall in with this plan. Lo Bosco Cert. P 12; Mayling Dep. at 296-97. Plaintiff was allegedly worried about giving up his prestigious legal position for the uncertainty of a career of investing with the Woo family. Therefore, he claims, he negotiated an arrangement with Luther and Mayling in which he would have discretion over which company to buy, and he would receive a 50% equity share in any company acquired. In return, plaintiff would quit his job at Crummy Del Deo and devote his energies to searching for a company in which to invest. After the acquisition, plaintiff was to run the business and be compensated at a rate equivalent to his salary at the law firm. Plaintiff's Brief at 6-7; Complaint P 47. Plaintiff maintains that he asked for the agreement in writing, but was told by Mayling that this would not comport with the Japanese way of doing business and that the request would be taken as an insult to Luther's honor. Complaint P 50.

 In any event, in January of 1990, plaintiff resigned from Crummy Del Deo. Plaintiff testifies as to numerous business opportunities he investigated. By August of 1990, plaintiff had identified a company called National Bottlers that made specialty soft drinks. The purchase price was $ 700,000. Luther was made aware of the business. It was at this time, on August 26, 1990, that Mayling and plaintiff were married.

 To plaintiff's dismay, Luther refused to provide the money to purchase National Bottling. Plaintiff alleges that this was in breach of an enforceable agreement he had with Luther and Mayling and it is the gravamen of this action. In June of 1991, plaintiff and Mayling separated, and they were divorced by an Illinois court in 1992. Plaintiff successfully contended that the court lacked jurisdiction over him, so the divorce was entered in default. This action was filed the following year.

 DISCUSSION

 1. The Summary Judgment Standard

 Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). In making this determination, a court must draw all reasonable inferences in favor of the non-movant. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). Whether a fact is "material" is determined by the substantive law defining the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); United States v. 225 Cartons, 871 F.2d 409, 419 (3d Cir. 1989).

 "At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. Id. Further, when a non-moving party who bears the burden of proof at trial has failed, in opposition to a motion for summary judgment, to raise a disputed fact issue as to any essential element of his or her claim, summary judgment should be granted because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 When the non-moving party's evidence in opposition to a properly-supported motion for summary judgment is merely "colorable" or "not significantly probative," the Court may grant summary judgment. Anderson, 477 U.S. 242 at 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505. "The mere existence of a scintilla of evidence will be insufficient." Id. at 252. The inquiry is whether, "seen through the prism of the substantive evidentiary burden," a reasonable jury could render a verdict for the burdened non-movant. Id. at 254-55. Thus, in this case, plaintiff must make a showing sufficient for a reasonable jury to find that he is entitled to a verdict by a preponderance of the evidence. Id. at 252.

 The non-movant may not "rest upon mere allegations, general denials, or . . . vague statements." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.), cert. denied, 502 U.S. 940, 116 L. Ed. 2d 327, 112 S. Ct. 376 (1991); see Fed. R. Civ. P. 56(e). The "unsupported statements of counsel in memoranda submitted to the court are even less effective in meeting the requirements of Rule 56(e) than are unsupported allegations in the pleadings." Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). The summary judgment procedure enables a party "who believes there is no genuine issue as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990).

 2. The Contract Theories

 In the complaint, plaintiff bases his claim on the theory that there was a contract between himself and the defendants. Kure's refusal to fund the purchase of National Bottlers is alleged to be a breach of this contract. Defendants attack on this allegation relies on the argument that the terms of this alleged contract are too vague and indefinite to be enforceable.

 A contract is unenforceable for vagueness when its terms are too indefinite to allow a court to ascertain with reasonable certainty what each party has promised to do. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435, 608 A.2d 280 (1992). The New Jersey courts focus on the performance promised in testing an agreement for vagueness. See Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 474, 395 A.2d 222 (App. Div. 1978) ("An agreement so deficient in the specification of its essential terms that the performance by each party cannot be ascertained with reasonable certainty is not a contract, and clearly is not an enforceable one.") (citing Friedman v. Tappan Dev. Corp., 22 N.J. 523, 531, 126 A.2d 646 (1956)), certif. denied, 79 N.J. 488 (1979). This does not mean that each term must be exactly spelled out. Where the court can determine the contract's "essential terms" to which the parties manifested an intent to be bound, the contract is enforceable. Ryan, 128 N.J. at 435. The Court notes by analogy New Jersey law providing that a contract for the sale of goods will not fail if the parties intended to agree and there is a "reasonably certain basis" for crafting a remedy even though some terms are left open. N.J.S.A. 12A:2-204; Truex v. Ocean Dodge, Inc., 219 N.J. Super. 44, 50, 529 A.2d 1017 (App. Div. 1987). *fn1"

  The law generally and in New Jersey does not favor voiding a contract for vagueness. See E. Allen Farnsworth, Contracts § 3.27 at 208-09 (2d ed. 1990); Paley v. Barton Savs. & Loan Ass'n, 82 N.J. Super. 75, 83, 196 A.2d 682 (App. Div.), certif. denied, 41 N.J. 602 (1964). The courts will not scruple at filling gaps or interpreting ambiguous terms where there is evidence of a manifestation of assent to enter into a bargain. See Paley, 82 N.J. Super. at 83; Heim v. Shore, 56 N.J. Super. 62, 73, 151 A.2d 556 (App. Div. 1959); 4 Samuel Williston, Williston on Contracts, § 4:18 at 421-22 (4th ed. 1990). Thus, a promise to provide "the usual sponsorship fees" for a bowling team was sufficient. Leitner v. Braen, 51 N.J. Super. 31, 39-40, 143 A.2d 256 (App. Div. 1958). Likewise, an agreement by a savings and loan association to hold $ 100,000 available to buy mortgages that a real estate developer hoped to obtain from the future buyers of unbuilt houses was sufficiently definite. Paley, 82 N.J. Super. at 82-84.

 A contract may be sufficiently certain even though one party has discretion to choose between material terms. Kleckner v. Mutual Life Ins. Co., 822 F.2d 1316, 1319 (3d Cir. 1987). Partial performance by one side of the bargain may, by the specifics of that performance, cure an indefinite term of the agreement. Merrick v. United States, 846 F.2d 725, 726 (Fed. Cir. 1988); Restatement (Second) of Contracts, § 34(2) (1979); Joseph M. Perillo, Corbin on Contracts, § 4.7 at 606-08 & n.2 (rev. ed. 1993). Likewise, even if uncertainty remains, where one party has acted in reliance on an indefinite agreement the courts will act to protect that reliance whether through a contractual or non-contractual remedy. *fn2" Restatement, supra § 34(3); see also Heim, 56 N.J. Super. at 73.

 With regard to contracts for services in return for a percentage of some yet-to-be-determined number, such as profits, sales, etc., the courts look to whether there are certain dates of commencement and termination. See Lind v. Schenley Indus., Inc., 278 F.2d 79, 86-87 (3d Cir.), certif. denied, 364 U.S. 835 (1960). As with any problem of ambiguity in a contract, the court may look to extrinsic circumstances to determine the dates of termination. Id. at 87. Of course, the variable to which the percentage rate is applied need not be determined at the time of contracting for the contract to be enforceable.

 In this case, defendants argue that there is no genuine issue as to several facts that show the contract should be overturned for vagueness. They argue that there is no specificity as to the amount of financing Kure was obligated to provide. Defendants claim that there was no agreement as to the percentage of ownership in the acquired enterprise to which plaintiff would be entitled, or whether this ownership share was to be subject to the financing. Defendants argue that there was no termination date to the contract, no limit to the number of businesses Lo Bosco could demand that Kure purchase, and no bounds on the discretion with which plaintiff was invested in choosing the companies to be purchased.

 The count of the complaint alleging breach of contract does not disclose what type of contract is thought to have been breached in this case. Defendants, in their moving papers, have cast it in terms of an employment contract. Plaintiff, in opposition, calls it a joint venture. It is alleged that plaintiff, Mayling, Luther and Kure were joint venturers in the search and planned acquisition of companies.

 A joint venture is predicated on the same legal event as an employment, partnership, contract or other relationship: an agreement between the parties. Sullivan v. Jefferson, Jefferson & Vaida, 167 N.J. Super. 282, 289, 400 A.2d 836 (App. Div. 1979); Wittner v. Metzger, 72 N.J. Super. 438, 443, 178 A.2d 671 (App. Div.), certif. denied, 37 N.J. 228 (1962). However, the joint venture relationship may be less formal. Hellenic Lines, Ltd. v. Commodities Bagging & Shipping, Process Supply Co., 611 F. Supp. 665, 679 (D.N.J. 1985). It may be implied wholly or in part from the acts and conduct of the parties. Id. Where there is an explicit agreement, it "need contain no particular form of expression, nor is formality of execution necessary." Wittner, 178 N.J. Super. at 444.

 A joint venture agreement will contain some or all of the following elements:

 
(A) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking;
 
(B) A joint property interest in the subject matter of the venture;
 
(C) A right of mutual control or management of the enterprise;
 
(D) Expectation of profit, or the presence of 'adventure,' as it is ...

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