Censor v. ASC Techs. of Conn., LLC
| Decision Date | 28 September 2012 |
| Docket Number | Civil Action No. 3:11–cv–00597 (VLB). |
| Citation | 900 F.Supp.2d 181 |
| Parties | Martin CENSOR, Plaintiff, v. ASC TECHNOLOGIES OF CONNECTICUT, LLC, Lillian Shapiro, Thomas Ceconi, HR 360, Inc., John Does and Jane Does, Defendants. |
| Court | U.S. District Court — District of Connecticut |
OPINION TEXT STARTS HERE
Alexander Breiner, Meyers, Breiner & Kent, LLP, Fairfield, CT, Mordchai Krausz, Stephen G. Dickerman, Koven & Krausz, New York, NY, for Plaintiff.
Lewis S. Lerman, Michael S. Lynch, Bai, Pollock, Blueweiss & Mulcahey, Shelton, CT, Michael J. Cicero, Cicero, Mehta & Sprang, LLP, Washington, DC, Richard J. Schager, Jr., Stamell & Schager, LLP, New York, NY, for Defendants.
Plaintiff Martin Censor (“Censor”), an attorney specializing in human resources and employment law, brings this suit against ASC Technologies of CT, LLC (“ASC”), agents of ASC Thomas Ceconi (“Ceconi”) and Lillian Shapiro (“Shapiro”), and HR 360, Inc. (“HR 360”). Censor brings claims against the Defendants stemming from his contractual relationship with ASC governing the inception and operation of the website Benefits Essentials, including claims for breach of contract, breach of fiduciary duty and fraud under Connecticut law, and copyright infringementin violation of the Federal Copyright Act of 1976, 17 U.S.C. § 101, et seq. Currently pending before the Court are (1) Plaintiff's Motion for Partial Summary Judgment Directing an Accounting, (2) Defendant ASC's Motion for Summary Judgment, (3) Defendants Shapiro's, Ceconi's and HR 360's Motion for Summary Judgment, and (4) Defendants' Motion to Amend their Answer and file additional counterclaims.
As an initial matter, the Court notes that Fed.R.Civ.P. 56(c)(1) requires that
[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact.
Rules 56(c)(2) and (c)(3) declare that a “party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence” and that “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Additionally, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ... [or] grant summary judgment if the motion and supporting materials—including the facts considered disputed—show that the movant is entitled to it ...” Fed.R.Civ.P. 56(e)(2), (e)(3).
Further, Local Rules of this district impose several specific requirements on the parties when arguing a summary judgment motion. Local Rule 56 requires that a party filing a summary judgment motion annex a “concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried.” D. Conn. L. Civ. R. 56(a)(1). “All material facts set forth in said statement and supported by the evidence will be deemed admitted unless controverted by the statement required to be filed and served by the opposing party ...” Id. Local Rule 56(a)(2) requires that the papers opposing a motion for summary judgment shall include a document which states “whether each of the facts asserted by the moving party is admitted or denied” and must also include a “list of each issue of material fact as to which it is contended there is a genuine issue to be tried.” Each statement of material fact in a Local Rule 56(a)(1) or Local Rule 56(a)(2) statement, as well as each denial in a summary judgment opponent's Local Rule 56(a)(2) statement, “must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.” D. Conn. L. Civ. R. 56(a)(3).
In the present case, Defendants have submitted Local Rule 56(a)(1) statements in support of their Motions for Summary Judgment, along with Declarations in support thereof by Lillian Shapiro and Defendants' attorney Michael Cicero. [ See Dkts. 83–2 & 84–2, Ds' 56(a)(1) Statements; Dkt. 83–3, Shapiro Decl.; Dkt. 83–4, Cicero Decl.] Plaintiff, however, has failed to include a 56(a)(2) statement with his Memorandum in Opposition to Defendants' Motions for Summary Judgment. Plaintiff has, though, submitted a Declaration in support of his Opposition to Defendants' Motion for Summary Judgment. [Dkt. 89–1, Censor Decl.] Additionally, Plaintiff has filed a defective 56(a)(1) statement in support of his Motion for Partial Summary Judgment, in that the statement neither lists the material facts to which there is no genuine issue to be tried, nor cites to affidavits or evidence admissible at trial. Censor has also submitted an unsworn “Declaration” signed by his attorney who appears to have no personal knowledge of the facts to which he purportedly avers. In support of his Motion for Partial Summary Judgment Directing an Accounting, the Plaintiff submitted a signed and notarized affidavit. Defendants submitted a 56(a)(2) statement responding to Plaintiff's purported 56(a)(1) statement. Thus, although Plaintiff broadly fails to cite to “particular parts of materials in the record” under Fed.R.Civ.P. 56(c)(1) in his opposition to Defendants' motions and in his own Motion for Partial Summary Judgment, he has presented an affidavit and his attorney's declaration of unsupported factual and legal assertions in support of his positions. The Court therefore will consider Censor's declaration and the admissible evidence attached to it, as well as Censor's affidavit supporting his Motion for Partial Summary Judgment and the admissible evidence attached thereto. The Court will also consider Defendants' appropriately submitted 56(a)(1) Statements and the evidence in support thereof. Where Censor, in his declaration opposing summary judgment, either admits or does not oppose or object to the facts contained in those documents the Court will accept them as true. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ().
The Court also notes that notwithstanding Plaintiff's defective or nonexistent Local Rule 56 statements, Plaintiff claims he filed this action by way of verified complaint. “[A] party opposing a properly supported motion for summary judgment is not entitled to rely solely on the allegations of her pleading, but must show that there is admissible evidence sufficient to support a finding in her favor on the issue that is the basis for the motion.” Fitzgerald v. Henderson, 251 F.3d 345, 360–61 (2d Cir.2001). Verification of a complaint by the plaintiff is the equivalent of the oath that would be given with respect to an affidavit submitted in opposition to a motion for summary judgment under Fed.R.Civ.P. 56(c)(1)(A). See id. at 361 (); Dzugas–Smith v. Southold Union Free School Dist., 2012 WL 1655540, at *15 () (internal quotation marks and citations omitted). The complaint—while it does contain a signed certification that the matters contained therein are true to Plaintiff's own knowledge—is neither notarized nor sworn under penalty of perjury. Thus, Plaintiff may not rely on this unverified complaint in opposing Defendants' properly supported motions for summary judgment.
It is undisputed that on April 11, 2003, Plaintiff Martin Censor and Defendant ASC entered into a contract governing the parties' relationship in running a subscription website business called Benefits Essentials. [Dkts. 83–2 & 84–2, Ds' 56(a)(1) Statements at ¶¶ 1–2] The terms of the agreement—entitled the “Joint Venture Agreement” (the “Agreement”)—are likewise not in dispute.1 Article II of the Agreement sets forth the “Obligations of the Joint Venturers” as follows:
All parties share equally in the operations and decisions of the Joint Venture. The parties agree to a split of duties between themselves as follows:
Martin Censor is primarily responsible for updating the content.
ASC is primarily responsible for marketing and technology (i.e., site development and maintenance). ASC will host the site on its servers and/or at its expense.
[Dkt. 79–1, Censor Aff. at Exh. C, Article II; Dkt. 83–3, Shapiro Dec. at Exh. 1, Article II] Article III of the Agreement, “Allocations,” states as to profits and losses that
Commencing on the date hereof and ending on the termination of the business of the Joint Venture, all profits, losses and other allocations to the Joint Venture shall be allocated quarterly, as follows: Fifty percent (50%) to ASC...
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