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June 1, 2005.

CENTRAL LEWMAR, L.P., Plaintiff,

The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District


This case is before the Court on a motion by plaintiff Central Lewmar, L.P. ("Central Lewmar") for partial summary judgment pursuant to Fed.R.Civ.P. 56(c). This Court has jurisdiction over this matter pursuant to Title 28 U.S.C. § 1332. FACTS

  Plaintiff Central Lewmar, a New Jersey limited partnership based in Newark, New Jersey, is principally engaged in the distribution of paper products. (See Compl., ¶ 1). Defendant Thomas J. Gentilin ("Mr. Gentilin"), currently residing in Colorado, was employed by Central Lewmar as a Vice President of Sales and as a sales agent. (See id., ¶¶ 1, 6). Defendant Mesa Label, L.L.C. ("Mesa Label") is a Colorado limited liability corporation with its principal place of business in Colorado. (See id., ¶ 3). Mr. Gentilin is the sole owner and principal of Mesa Label. (See id.)

  While employed by Central Lewmar, Mr. Gentilin sold printable adhesive labels. (See Plaintiff's Statement of Uncontested Facts ("Plaintiff's SUF"), ¶ 6). On or about January 28, 1999, he solicited and obtained Wilmar Industries, Inc. ("Wilmar") as an account and customer for Central Lewmar. (See id.)

  Mr. Gentilin's employment with Central Lawmar ended on March 14, 2003. (See id., ¶ 2; see also Defendants' Response to Plaintiff's SUF (admitting ¶¶ 1-10)). While employed, Mr. Gentilin had received compensation and other benefits of employment from Central Lewmar. (See Plaintiff's SUF, ¶ 4).

  According to Central Lewmar, Mr. Gentilin incorporated Mesa Label while he was still employed by Central Lewmar. (See id., ¶ 11). Furthermore, plaintiff contends that while he was so employed, Mr. Gentilin solicited and obtained the Wilmar account for Mesa Label and away from Central Lewmar. (See id., ¶ 12).


  On October 1, 2003, Central Lewmar filed in this Court a seven-count Complaint against Mr. Gentilin and Mesa Label (collectively "defendants"). On November 10, 2004, this Court granted defendants' motion to amend their Answer. (See Central Lewmar, L.P. v. Thomas J. Gentilin and Mesa Label, LLC, Civil 03-4671 (Order) (GDH). The Amended Answer, filed on November 19, 2004, contained counterclaims against Central Lewmar for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, and (3) unjust enrichment. (See Am. Answer at 5-7).

  On January 24, 2005, Central Lewmar filed the current motion for a partial summary judgment, as to liability only, on three counts in the Complaint: Count Two (breach of the duty of loyalty); Count Three (intentional interference with prospective economic advantage); and Six (unjust enrichment). Defendants respond that the motion for summary judgment should be denied or continued pursuant to Fed.R.Civ.P. 56(f). (See Defendants' Br. at 7). DISCUSSION

  I. Standard for a Rule 56(c) Motion for Summary Judgment

  Federal Rule of Civil Procedure 56(c) provides that summary judgment should 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 also Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Kreschollek v. Southern Stevedoring Co., 223 F.3d 202, 204 (3d cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

  The Supreme Court has stated that in evaluating a defendant's motion for summary judgment:
[t]he judge must ask . . . not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. . . .
Anderson, 477 U.S. at 252. A fact is "material" only if it will affect the outcome of a lawsuit under the applicable law, and a dispute over a material fact is "genuine" if the evidence is such that a reasonable fact finder could return a verdict for the nonmoving party. (See id.)

  In order to survive a motion for summary judgment, a plaintiff must present more than a mere scintilla of evidence in his favor. (Id.) He "cannot simply reallege factually unsupported allegations contained in his pleadings." Anderson, 477 U.S. at 249; see also Clark v. Clabaugh, 20 F.3d 1290, 1294 (3d Cir. 1994). Only evidence that would be admissible at trial may be used to test a summary judgment motion; evidence with a deficient ...

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