Ada Liss Grp. (2003) Ltd. v. Sara Lee Corp.
| Decision Date | 03 September 2013 |
| Docket Number | 1:06CV610 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | ADA LISS GROUP (2003) LTD, formerly known as ADA LISS LTD, Plaintiff, v. SARA LEE CORPORATION (formerly d/b/a Sara Lee Branded Apparel), and HANESBRANDS, INC., Defendants. |
This matter is before the Court on several motions from both parties: (i) Plaintiff's renewed motion for partial summary judgment seeking to dismiss Counts I and II of Defendants' counterclaims and finding that Defendants breached the 2004 Distributorship Agreement as a matter of law (Docket Entry 218); (ii) Defendants' motion for partial summary judgment on Defendants' counterclaim for breach of the 2004 Distributorship Agreement (Docket Entry 224); (iii) Defendants' motion for partial summary judgment on Plaintiff's claim for breach of the 2004 Distributorship Agreement (Docket Entry 226); (iv) Defendants' motion to strike certain documents and portions of declarations submitted in support of Plaintiff's renewed motion (Docket Entry 247); (v) Defendants' second motion to strike portions of declarations submitted in support of Plaintiff's renewed motion (Docket Entry 260); and (vi) Plaintiff's motion to strike portions of Defendants' summary judgment materials (Docket Entry 264). A hearing was held before this Court on May 14, 2013.
For the following reasons, the Court will grant in part and deny in part Defendants' motions to strike. The Court will also grant in part and deny in part Plaintiff's motion to strike. Furthermore, the Court will recommend that Plaintiff's renewed motion for partial summary judgment be granted in part and denied in part, Defendants' motion for partial summary judgment as to Plaintiff's claim for breach of the 2004 Distributorship Agreement be denied, and Defendants' motion for partial summary judgment as to their counterclaim for breach of the 2004 Distributorship Agreement be granted in part and denied in part.
In 2006, Plaintiff originally filed suit alleging various claims against Defendants arising from two distributorship agreements and a setdement agreement entered between both parties in which Plaintiff was given an exclusive distributorship agreement to sell Defendants' Bali-branded intimate apparel in Israel.2 Plaintiff is a family-owned Israeli company that was a distributor of Defendants' Bali-brand intimate apparel in Israel. (Compl. ¶ 21; Answer ¶ 6.) The President of Plaintiff's company is Ervin Lissauer. (Compl. ¶ 22; Answer ¶ 22.) The Complaint was originally filed in Wake County Superior Court in February 2006. (Docket Entry 1-2.) The case was removed to the Eastern District of North Carolina on March 17, 2006 (Docket Entry 1), and later transferred to the Middle District of North Carolina after Defendants filed a motion to dismiss the case for improper venue or, alternatively, to transfer venue. (Docket Entry 7.)
Defendant Sara Lee thereafter filed an Answer to Plaintiff's Complaint. (Docket Entry 10.) Parties filed a Rule 26(f) report which the court approved (Docket Entry 16), and Defendant Sara Lee then filed a motion for judgment on the pleadings. (Docket Entry 23.) Shordy thereafter, on December 12, 2006, Plaintiff filed a motion to amend the Complaint. (Docket Entry 27.) On January 7, 2007, Plaintiff filed a motion to remand. (Docket Entry 34.) Plaintiff's motion to amend was granted, the motion to remand was denied, and Defendant's motion for judgment on the pleadings was rendered moot. (Docket Entry 45.)3 On April 12, 2007, Defendants filed a motion to dismiss the amended complaint which was granted in part and denied in part. (See Docket Entries 56 and 96.) Plaintiff filed a motion for voluntary dismissal without prejudice on July 12, 2007, which the Court granted subject to several conditions. (See Docket Entry 105.)
On August 13, 2008, Plaintiff filed a motion to reopen the case and a new complaint was filed. The complaint alleged several claims against Defendants: (1) Count I-Breach of the 1994 Distributorship Agreement; (2) Count II-Breach of the 2004 Settlement Agreement; Count Ill-Breach of the 2004 Distributorship Agreement; (4) Count IV-Fraud; (5) Count IV-Negligent Misrepresentation; (6) Count Vl-Unfair and Deceptive Trade Practices; and (7) Count VII-Breach of Duty of an Implied Covenant of Good Faith and Fair Dealing. (See Compl. filed Aug. 13, 2008, Docket Entry 107.) On October 31, 2008, Defendants filed a motion to dismiss counts IV, V, VI, and VII of the new complaint.4(Docket Entry 121.) Plaintiff thereafter filed a motion for partial summary judgment seeking a finding that Defendants breached the 2004 Settlement Agreement. (Docket Entry 133.)
On April 28, 2010, the district court judge entered a memorandum order finding the following:
Defendants' Motion to Dismiss [Doc. # 121] is DENIED IN PART and GRANTED IN PART. Plaintiff's stand-alone claim for breach of the implied covenant of good faith and fair dealing is coextensive with the claim for breach of contract and will not be treated as a separate claim. Pursuant to Paragraph 12(c) of the Distributorship Agreement, Plaintiff may not recover consequential damages for breach of the 2004 Agreement . . . . Defendants' Motion to Dismiss [Doc. #121] as to the claims for fraud, negligent misrepresentation, and Unfair and Deceptive Trade Practices is DENIED.
(Order at 37-38, Docket Entry 175) (footnote omitted.) The Court also granted Plaintiff's motion for partial summary judgment and found that Defendants breached the 2004 Setdement agreement by failing to mark products according to the marking provision. (Id. at 38.) Defendants thereafter filed an Answer and asserted counterclaims against Plaintiff. (Docket Entry 176.) On June 28, 2010, Plaintiff filed a motion to dismiss counts III and IV of Defendants' counterclaims (Docket Entry 185) and a second motion for partial summary judgment (Docket Entry 187.) In response to the second motion for partial summary judgment, Defendants contend that they were entitled to conduct more discovery and that Plaintiff's motion was brought prematurely. The court agreed, and stayed Plaintiff's second motion for partial summary judgment until additional discovery was completed. (Docket Entry 206.)
On March 29, 2011, the district court judge adopted the recommendation of the United States magistrate judge and entered an order dismissing counts III and IV ofDefendants' counterclaims.5 On April 8, 2011, Plaintiff filed its renewed motion for partial summary judgment which is currendy before the Court. (Docket Entry 218.) Defendants thereafter filed two motions for partial summary judgment on Defendants' counterclaim for breach of the 2004 Distributorship Agreement and on Plaintiff's claim for Breach of the 2004 Distributorship Agreement. (See Docket Entries 224 and 226.) On May 12, 2011, Defendants filed a motion to strike portions of the second and third declarations submitted in support of Plaintiff's summary judgment briefing. (Docket Entry 247.) Defendants also filed a second motion to strike portions of Scott A. Miskimon's declarations. (Docket Entry 260.) On June 30, 2011, Plaintiff filed a motion to strike portions of declarations and exhibits in connection with Defendant's summary judgment motions. (Docket Entry 264.) The case was reassigned to the undersigned on January 9, 2013. A status conference was held on February 27, 2013 to apprise the Court of the parties' pending motions. The Court thereafter set an oral argument hearing on all pending motions which was held on May 14, 2013. The undersigned took the motions under advisement after hearing oral arguments.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); See Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). "Facts are 'material' when they mightaffect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." New & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact finder to return a verdict for that party. Anderson, 477 U.S. at 250; Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir. 1995).
When making the summary judgment determination, the court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997). On cross-motions for summary judgment, a review of each motion separately is necessary "to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation and citation omitted). "The court must take care to resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion. Id. (internal quotation and citation omitted.) "The fact that both...
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