Clearplay, Inc. v. Nissim Corp.

• Decision Date: 21 December 2011
• Docket Number: CASE NO. 07-81170-CIV-HUCK/BANDSTRA
• Parties: CLEARPLAY, INC., Plaintiff, v. NISSIM CORP. and MAX ABECASSIS Defendants.
• Court: U.S. District Court — Southern District of Florida

CLEARPLAY, INC., Plaintiff,

v.NISSIM CORP. and MAX ABECASSIS Defendants.

CASE NO. 07-81170-CIV-HUCK/BANDSTRA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Dated: December 21, 2011

ORDER GRANTING DEFENDANTS

SUMMARY JUDGMENT ON REMAINING CLAIMS

On September 2, 2011, this Court granted in part Defendants' Nissim Corporation's and Max Abecassis' ("Nissim"¹ ) motion for summary judgment on ClearPlay's tortious interference claims and the portion of ClearPlay's Florida Deceptive and Unfair Trade Practices ("FDUPTA") claim alleging that Nissim's third-party communications violated FDUPTA. See ClearPlay, Inc. v. Nissim Corp., 2011 U.S. Dist. LEXIS 99154 *47 (S.D. Fla. Sept. 2, 2011). This Court denied without prejudice ClearPlay's breach of contract claim allowing Nissim to file a renewed motion and declined to address the portion of Clearplay's FDUPTA claim relating to Nissim's entering into the Settlement and License Agreement² in bad faith and breaching the agreement. Id. As a result, Nissim filed a renewed motion for summary judgment on these remaining claims. D.E. #401. Responses and replies to Nissim's motion have been filed, D.E. #408, 412, 415-417, and the motion is ripe for adjudication.³ For the reasons discussed below,the Court GRANTS summary judgment in favor of Nissim with respect to all of the remaining claims.

A. Summary Judgment Standard

Summary judgment is proper only where the moving party "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). The purpose of summary judgment is "to pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986) (quoting Fed. R. Civ. P. 56 advisory committee's note). In Celotex Corp., the Court held that summary judgment should be entered only against

a party who fails 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. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of the case with respect to which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

To prevail, the moving party must do one of two things: (1) show that the non-moving party has no evidence to support its case, or (2) present "affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en banc); Young v. City of Augusta. Ga., 59 F.3d 1160, 1170 (11th Cir. 1995). In making this determination, the court must view the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir.1998) (citations and quotations omitted).

If the moving party successfully discharges this initial burden, the burden shifts to the non-moving party to establish, by going beyond the pleadings, that there is a genuine dispute asto facts material to the non-moving party's case. Young, 59 F.3d at 1170. The non-moving party must do more than rely solely on its pleadings, and simply show that there is some metaphysical doubt as to the material facts. Matsushita, 475 U.S. at 586-87. A genuine dispute of material fact does not exist unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict in its favor. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986); Ritch v. Robinson-Humphrey Co., 142 F.3d 1391, 1393 (11th Cir. 1998); EEOC v. Amego, 110 F.3d 135, 143(1st Cir. 1997); Thornton v. E.I. Du Pont De Nemours and Co., Inc., 22 F.3d 284, 288 (11th Cir. 1994). A dispute is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). A dispute is "material" if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson, 477 U.S. at 248; Allen, 121 F.3d at 646.

A mere "scintilla" of evidence in favor of the non-moving party, or evidence that is merely colorable or not significantly probative is not enough to meet this burden. Anderson, 477 U.S. at 252. See also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (conclusory allegations and conjecture cannot be the basis for denying summary judgment). Where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a general issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989).

B. Breach of Contract Claim⁴ - Applicable Law

In interpreting the Settlement and License Agreement, the parties have stipulated that Florida law governs (see Section 12.4). Since there is no strong public policy preventing this Court from respecting Florida as the chosen forum, this Court must enforce this choice-of-law provision. See Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1341 (11th Cir. 2005) (quoting Mazzoni Farms, Inc. v. E.I. DuPont de Nemours & Co., 761 So. 2d 306, 311 (Fla. 2000) ("[C]ourts will enforce 'choice-of-law provisions unless the law of the chosen forum contravenes strong public policy.'"). Under Florida law, "[t]he interpretation of a contract is a question oflaw to be decided by the court." Hartford Ins. Co. v. BellSouth Telecomms., Inc., 206 Fed. App'x 952, 954 (11th Cir. 2006) (citing Barone v. Rogers, 930 So. 2d 761, 764 (Fla. 4th Dist. Ct. App. 2006)). "As such, it is particularly susceptible to determination as a matter of law." Diversified Servs., Inc. v. Simkins Indus., Inc., 974 F. Supp. 1448, 1451 (S.D. Fla. 1997).

"Contract interpretation principles under Florida law require us to look first at the words used on the face of the contract to determine whether that contract is ambiguous." Rose. v. M/V "Gulf Stream Falcon," 186 F.3d 1345, 1350 (11th Cir. 1999). "It is well settled that the actual language used in the contract is the best evidence of the intent of the parties and, thus, the plain meaning of that language controls." Id. The Florida Supreme Court has "long held that under contract law principles, contract language that is unambiguous on its face must be given its plain meaning." Green v. Life & Health of Am., 704 So. 2d 1386, 1391 (Fla. 1998). Thus, "[a] party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract." Med. Ctr. Health Plan v. Brick, 572 So. 2d 548, 551 (Fla. Dist. Ct. App. 1990) (citations omitted).

Accordingly, "it is settled in Florida that a court may resort to the process of interpretation only when the words used in a contract are unclear." Boat Town U.S.A., Inc. v. Mercury Marine Div. of Brunswick Corp., 364 So. 2d 15, 17 (Fla. Dist. Ct. App. 1978). "The ambiguity must exist on the face of the document itself before extrinsic matters may be considered by the court." Id.

C. ClearPlay's Asserted Breaches

In its Third Amended Complaint, ClearPlay asserts that Nissim breached the following sections of the Settlement and License Agreement: 4.6., 4.7, 5.4, 4.2, 12.3 and 12.5. ClearPlay also asserts that Nissim breached the implied covenant of good faith and fair dealing. Each will be considered in turn.

1. Section 4.6⁵

First, ClearPlay asserts that Nissim breached Section 4.6 of the Settlement and License Agreement by "[f]iling a motion to enforce with this Court to address filter disputes and notsubmitting its filter disputes to a special master for expeditious and economical resolution in violation of Section 4.6." D.E. # 185, Third Amended Complaint at ¶ 123(a).

Section 4.6 is a dispute resolution provision relating specifically to disputes over the "ClearPlay CustomPlay OC Maps." This term means "Customplay OC Maps" generated by ClearPlay (see Section 1.4). CustomPlay OC Maps are video segments that comprise a beginning frame and an ending frame and are coded with the following filters: an objectionable content category (there are 12 such categories),⁶ a level of explicitness (there are 4 such levels)⁷ and an action (skip or mute) (see Sections 1.7, 1.8 and 1.14). Section 4.6 provides the following in pertinent part:

Mapping Dispute Resolution: During the term of this Agreement, in the event Nissim determines that a ClearPlay CustomPlay OC Map has not been created in good faith compliance with this Agreement, Nissim will provide ClearPlay with email or written notice of the same. If the parties are unable to amicably resolve the issue raised in the email or written notice, the matter may be submitted by either party to a Special Master jointly appointed by the parties to determine if Clearplay was compliant with the terms of this Agreement related to creation of ClearPlay CustomPlay OC Maps. If the parties are unable to agree upon the selection of a Special Master, they may submit the matter to the American Arbitration Association for such selection (emphasis added).

The agreement also contains, in Section 10.2, the following general dispute resolution provision, in pertinent part:

Dispute Resolution: Any dispute arising under or relating to this Agreement or in any dispute arising with respect to or related to the subject matter of the Patents-In-Suits [i.e., the 5 patents licensed under the Agreement], which cannot be resolved by negotiation in good faith between the parties hereto, shall be resolved by an action

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