Comenos v. Viacom Intern., Inc.

• Decision Date: 06 July 1994
• Docket Number: Civ. A. No. 93-72231.
• Citation: 857 F. Supp. 1160
• Parties: John COMENOS, Plaintiff, v. VIACOM INTERNATIONAL, INC., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

857 F. Supp. 1160

John COMENOS, Plaintiff, v. VIACOM INTERNATIONAL, INC., Defendant.

Civ. A. No. 93-72231.

United States District Court, E.D. Michigan, Southern Division.

July 6, 1994.

Charles Gottleib, Southfield, MI, for plaintiff.

William Sargent and Honigman Miller, Detroit, MI, for defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

GADOLA, District Judge.

On April 28, 1994, defendant filed a motion for summary judgment and plaintiff filed a partial motion for summary judgment. On May 9, 1994, plaintiff filed a response to defendant's motion. Defendant responded to plaintiff's motion May 12, 1994. Plaintiff filed a reply brief May 17, 1994. Defendant filed a reply brief May 16, 1994. Pursuant to LR 7.1(e)(2) (Jan. 1, 1992, E.D.Mich.), the court determined that no oral argument was necessary. Discovery closed in this case March 18, 1994.

I. Facts

Plaintiff John Comenos began working as General Sales Manager of the radio station, WLTI, Southfield, Michigan, for Viacom Broadcasting, Inc., a wholly owned subsidiary of defendant Viacom International, Inc., in March 1989. On March 1, 1989, plaintiff and Viacom Broadcasting, Inc. signed a letter agreement (the "1990 Contract") setting forth the terms of plaintiff's employment, including an agreement that the Term of Employment would extend "for a period through and until December 31, 1990." Exhibit A to Complaint.

In December 1990, the parties entered into a new employment agreement which is dated to commence "as of January 1, 1991" (the "1991 Contract"). The 1991 Contract differs from the 1990 Contract in only a few material respects: inter alia, it calls for an increase in plaintiff's compensation, defines the Term of Employment as extending "through and until December 31, 1991," and is between plaintiff and Viacom International, Inc. ("Viacom"), the parent company, instead of Viacom Broadcasting, Inc., the subsidiary. Exhibit B to Plaintiff's Motion. Both the 1990 and 1991 Contracts contain a choice of law clause whereby the parties agree that "This Agreement and all matters or issues collateral thereto shall be governed by the laws of the State of New York applicable to contracts entered into and performed entirely therein." Exhibit A to Complaint (1990 Contract) and Exhibit B to Plaintiff's Motion (1991 Contract), both at para. 12.

In December 1991, the parties agreed orally to renew the terms of the 1991 Contract with the modification that plaintiff would receive another increase in compensation for the 1992 year. Plaintiff, however, was not asked to sign a new contract for 1992; rather, his boss, Terry Wood, gave him a memorandum, dated January 8, 1992, indicating what plaintiff's compensation would be for 1992. The parties agree that with respect to other matters the terms of the 1991 Contract applied and that contract effectively was renewed for the 1992 Term.

In December 1992, plaintiff discussed with Wood the possibility of receiving another increase in compensation for 1993. Wood told plaintiff that he would send to Viacom officers the necessary paperwork requesting the increase.

However, sometime in the latter part of 1992, George Wolfson, Senior Vice President of Operations for Viacom International, Inc., had begun monitoring WLTI's performance because Viacom suspected that the radio station was not being managed as well as it could be. In early January 1993, Wolfson fired Wood as station manager. Three months later, on March 5, 1993, Wolfson also fired plaintiff.

Plaintiff filed the instant action in Oakland County Circuit Court in May 1993, alleging that under New York law his contract had been implicitly renewed, and that the March termination of his employment therefore violated his contract with Viacom for a one-year Term of Employment. Defendant removed the action to federal court on May 27, 1993, alleging diversity jurisdiction. Defendant disputes some of plaintiff's factual claims, and alleges in its defense that plaintiff was aware that defendant did not wish to enter into a new contract for 1992, and that plaintiff was working as an at-will employee between January 1, 1993 and March 5, 1993.

The parties agree that on or about the day that Wolfson fired Wood, Wolfson also had a meeting with plaintiff. The parties disagree, however, as to what was said at that meeting. Plaintiff testified at his deposition that he asked Wolfson at that meeting whether he would be getting the raise he had requested through Wood. Plaintiff claims that Wolfson's responded by saying the following:

There are some problems, in my perception, at the radio station. I don't know if the problem is you, I don't know if the problem is Terry Wood, I don't know if the problem is Marge. I don't know what I'm going to do. In the meantime, we'll continue the 1992 deal.

Plaintiff's Deposition at 156. Wolfson, on the other hand, claims that at that meeting he told plaintiff "I have turned down your raise that was submitted in December. And ... we are not renewing your contract." Wolfson's Deposition at 105-07.

The parties also disagree about the events, (and the significance thereof), that occurred in the fall of 1992. Defendant claims that plaintiff's performance was substandard and that Wolfson and others had had many meetings with plaintiff concerning his poor performance. Plaintiff, on the other hand, claims that Wolfson's discussions with him did not specify that his performance was poor but rather dealt generally with defendant's concerns about the radio station's overall performance. The court finds, for the following reasons, that these factual disputes create genuine issues of material fact upon which summary judgment may not be entered.

II. Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "A fact is `material' and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect the application of appropriate principles of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citation omitted). The Court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact; rather, "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 Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861.

To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986),

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the nonmovant's evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

(Citations omitted); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Fed.R.Civ.P. 50(a). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant's own pleadings and affidavits. Id.

III. Analysis

A. Choice of Law

It has long been established that a federal court, in a diversity litigation, must apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Defendant claims that Michigan law provides that contracts which are to be performed in Michigan are to be adjudicated in accordance with Michigan laws. As support for this proposition, defendant cites to two cases: Meijer, Inc. v. General Star Indem. Co., 826 F.Supp. 241 (W.D.Mich.1993) and Fireman's Fund Ins. Cos. v. Ex-Cell-O Corp., 750 F.Supp. 1340 (E.D.Mich.1990). Both of these cases are inapposite, however, because neither involves a contract that contains a choice of law clause.

"The...