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Vasaturo Brothers, Inc. v. Alimenta Trading-Usa

July 22, 2011

VASATURO BROTHERS, INC.
D/B/A VESUVIO FOODS, PLAINTIFF,
v.
ALIMENTA TRADING-USA, LLC, ABC- XYZ CORPORATIONS AND JOHN DOE 1-50, DEFENDANTS.



The opinion of the court was delivered by: Chesler, District Judge

NOT FOR PUBLICATION

OPINION

This matter comes before the Court on two motions for summary judgment, pursuant to FED. R. CIV. P. 56: 1) the motion by Plaintiff Vasaturo Brothers, Inc. ("Plaintiff") [docket entry 58]; and 2) the motion by Defendant Alimenta Trading-USA, LLC ("Defendant") [docket entry 59]. 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 stated below, Plaintiff's motion will be granted in part and denied in part, and Defendant's motion will be denied in its entirety.

I. BACKGROUND

This action was initiated by Plaintiff after Defendant failed to deliver the full amount of Italian peeled tomatoes agreed upon by the parties in a contract (the "Agreement") they entered into on July 28, 2008. Pursuant to the Agreement, Plaintiff was to pay Defendant $380,000 on September 1, 2008, $370,000 on October 1, 2008, and $370,000 on November 1, 2008. In turn, Defendant was to deliver 50 full container loads of Italian peeled tomatoes in the following installments: 10 full container loads within September 2008, 10 full container loads within October 2008, 10 full container loads within November 2008, 10 full container loads within December 2008, and 10 full container loads within January 2009.

Plaintiff paid Defendant $380,000 in September 2008 and $370,000 in October 2008. According to Plaintiff's Complaint, as of November 1, 2008, when its third payment to Defendant became due, only 5 of the 20 loads of tomatoes had been delivered. As a result, Plaintiff refused to prepay the last installment of $370,000 on the November 1 deadline, since it had not received the "[containers of] tomatoes consistent with its previous payments of $750,000." (Pl.'s Summ. J. Mot. 3, Jan. 24, 2011.) As such, on November 20, 2008, Mr. Vasaturo, as president of Vasaturo Brothers, Inc., emailed Defendant, explaining that Plaintiff had not received the balance of the containers. Defendant responded that, while all the containers had not been delivered to Plaintiff, they would be arriving in the next few days. By November 24, 2008, the 15 missing containers still had not been delivered, nor had any of the additional 10 containers that were to be delivered within the month. As such, Mr. Vasaturo sent another email to Defendant, demanding adequate assurance that the shipments would be delivered. According to Plaintiff, Defendant failed to respond to its inquiry.

On March 20, 2009, Plaintiff filed the instant action, asserting the following counts arising out of Defendant's non-delivery of the tomatoes: 1) breach of contract; 2) breach of express warranty; 3) breach of implied warranty; 4) breach of implied warranty for a particular purpose; 5) unjust enrichment; 6) breach of good faith and fair dealing; and 7) misrepresentation. Defendant filed an Answer maintaining five counterclaims, all relating to Plaintiff's nonpayment of the third installment of $370,000: 1) breach of contract; 2) unjust enrichment; 3) breach of good faith and fair dealing; 4) quantum meruit; and 5) book account. Plaintiff has moved for summary judgment on the First Count of the Complaint for breach of contract and on Defendant's second and fourth counterclaims for unjust enrichment and quantum meruit.*fn1

Defendant has moved for summary judgment on its first counterclaim for breach of contract and on its third counterclaim for breach of the covenant of good faith and fair dealing.*fn2

II. LEGAL ANALYSIS

A. Standard of Review

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 ...


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