The opinion of the court was delivered by: Chesler, District Judge
This matter comes before the Court on motion for summary judgment by Defendant Banco do Brasil, S.A. ("Banco") [docket entry 57] pursuant to Federal Rule of Civil Procedure 56(a). Banco also seeks to recover attorneys' fees. Plaintiffs have opposed the motion. The Court has opted to rule based on the papers submitted and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons expressed below, the Court grants Banco's motion for summary judgment and grants Banco's motion for attorneys' fees.
On June 27, 2008, Armur Realty, LLC ("Armur") and Banco entered into a retail lease agreement for rentable space located at 158-160 Ferry Street, Newark, New Jersey ("Premises"). Under the lease, Armur was to construct the shell of the building, based on architectural plans agreed upon by both Armur and Banco, for Banco's use as a tenant on the ground floor.
According to the lease, Armur was to deliver the Premises to Banco by December 1, 2008 ("Delivery Date"). Additionally, the lease provides that Banco would receive one free day of rent for every day Armur delayed delivery past the Delivery Date for a period of up to thirty days. If Armur still did not deliver the Premises to Banco within thirty days of the Delivery Date, Banco would thereafter receive an additional two free days of rent for every one day of delay. The lease also stipulates that Banco "shall have the right, starting on March 1, 2009 (the "Outside Delivery Date"), to terminate the lease and [Armur] and [Banco] shall have no further obligations to each other arising from th[e] lease." (Lease Agreement ¶ 1.5, June 27, 2008.)
By letter dated April 15, 2009, Banco terminated the lease agreement. Armur had not delivered the Premises to Banco by that time. Thereafter, on June 8, 2009, Plaintiffs filed a Complaint, alleging Banco improperly ended the lease, resulting in a breach of contract. Defendant Banco moves for summary judgment and for attorneys' fees.
Summary judgment is appropriate under FED. R. CIV. P. 56(a) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). "A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial." Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).
If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, . . . there can be 'no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts ...