723 Fed.Appx. 22 (2nd Cir. 2018), 17-523, TrueNorth Capital Partners LLC v. Hitachi Metals, Ltd.

• Docket Nº: 17-523
• Citation: 723 Fed.Appx. 22
• Party Name: TRUENORTH CAPITAL PARTNERS LLC, TNCP, LLC, Plaintiffs-Appellants, v. HITACHI METALS, LTD., Hitachi Metals America, LLC, Hitachi Metals Automotive Components USA, LLC., Hitachi Metals Foundry Holdings, Inc., N/k/a Hitachi Metals America Holdings, Inc., Defendants-Appellees.
• Attorney: FOR PLAINTIFFS-APPELLANTS: LAWRENCE M. SEGAN, Law Office of Lawrence M. Segan, New York, NY. FOR DEFENDANTS-APPELLEES: DAVID B. SALMONS (with Troy S. Brown, Margot G. Bloom, and Michael E. Kenneally on the brief), Morgan, Lewis & Bockius LLP, Philadelphia, PA and Washington, DC.
• Judge Panel: PRESENT: DENNIS JACOBS, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges.
• Case Date: January 29, 2018
• Court: United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 22

723 Fed.Appx. 22 (2nd Cir. 2018)

TRUENORTH CAPITAL PARTNERS LLC, TNCP, LLC, Plaintiffs-Appellants,

v.

HITACHI METALS, LTD., Hitachi Metals America, LLC, Hitachi Metals Automotive Components USA, LLC., Hitachi Metals Foundry Holdings, Inc., N/k/a Hitachi Metals America Holdings, Inc., Defendants-Appellees.

No. 17-523

United States Court of Appeals, Second Circuit

January 29, 2018

Editorial Note:

This case was not selected for publication in the Federal Reporter and Not to be Cited as Precedent. (See Federal Rule of Appellate Procedure Rule 32.1)

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

Page 23

Appeal from a judgment of the United States District Court for the Southern District of New York (Daniels, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

FOR PLAINTIFFS-APPELLANTS: LAWRENCE M. SEGAN, Law Office of Lawrence M. Segan, New York, NY.

FOR DEFENDANTS-APPELLEES: DAVID B. SALMONS (with Troy S. Brown, Margot G. Bloom, and Michael E. Kenneally on the brief), Morgan, Lewis & Bockius LLP, Philadelphia, PA and Washington, DC.

PRESENT: DENNIS JACOBS, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges.

Page 24

SUMMARY ORDER

TrueNorth Capital Partners LLC and its subsidiary TNCP, LLC (collectively "TrueNorth") brought this contract action against various entities in the Hitachi, Ltd. corporate family (collectively "Hitachi"), claiming entitlement to a $6.8 million "Completion Fee" allegedly due under the parties’ written agreement. The United States District Court for the Southern District of New York (Daniels, J. ) granted summary judgment for Hitachi on two independent grounds, and TrueNorth now appeals. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

"In reviewing a written contract, a [ ] court’s primary objective is to give effect to the intent of the parties as revealed by the language they chose to use." Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992). When, as here, the operative language is unambiguous, the proper effect to give it is a question of law that may be resolved on summary judgment. See

id.

TrueNorth contracted to advise Hitachi in its efforts to invest in a "Target" company, which the contract defined as any "ductile iron producer having production facilities in the U.S., Canada and/or Mexico." App’x at 31. The contract guaranteed TrueNorth an up-front retainer and a monthly fee. A Completion Fee was contingent upon Hitachi’s "consummation of an[ ] Investment [in] a[ ] Selected Target ." Id. at 34 (emphasis added). The contract further provided that the parties "shall agree in writing" on which "Targets" constitute "Selected Targets."¹ Id. at 31. That unambiguous writing requirement dooms TrueNorth’s claim.

TrueNorth claims that when Hitachi consummated an investment in Waupaca Foundry, Inc.— which was undisputedly a Target under the parties’ contract— Hitachi was required to pay TrueNorth a Completion Fee of $6.8 million. Hitachi counters that TrueNorth’s claim is foreclosed because the contract allowed for a Completion Fee only if Hitachi invested in a Selected Target, and the parties did not "agree in writing" that Waupaca was a Selected Target. The district court cited the absence of a written agreement designating Waupaca a Selected Target as one ground for awarding Hitachi summary judgment. On de novo review, see Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012), we affirm on that ground.

TrueNorth argues that the writing requirement was (1) satisfied or (2) waived.

1. TrueNorth asserts that "writings between the parties ... conclusively establish[ed] an agreement that Waupaca was a Selected Target." Appellant’s Br. at 25. This assertion is belied by the record. It is undisputed that in March 2012, the parties agreed in writing to a list of 22 Selected Targets, which did not include Waupaca.² And TrueNorth points to no subsequent

Page 25

writing in which Hitachi manifested its assent to any modification to that...