Feldman v. Birger

• Decision Date: 09 May 1962
• Docket Number: Civ. A. No. 60-809-C.
• Citation: 205 F. Supp. 87
• Parties: Ellis R. FELDMAN, d/b/a Lawrence Plastic Container Company, Plaintiff, v. Jordan BIRGER and Marvin Birger, d/b/a Orkney Associates, Defendants.
• Court: U.S. District Court — District of Massachusetts

205 F. Supp. 87

Ellis R. FELDMAN, d/b/a Lawrence Plastic Container Company, Plaintiff, v. Jordan BIRGER and Marvin Birger, d/b/a Orkney Associates, Defendants.

Civ. A. No. 60-809-C.

United States District Court D. Massachusetts.

May 9, 1962.

Stuart DeBard, Weston, Patrick & Stevens, Boston, Mass., for plaintiff.

Albert R. Mezoff, Boston, Mass., for defendant.

CAFFREY, District Judge.

This is an action of contract which is before the Court on defendants' motion for summary judgment and on plaintiff's motion for summary judgment as to defendants' counterclaim.

The plaintiff, Ellis R. Feldman, doing business as Lawrence Plastic Container Company, is a resident of Philadelphia, Pennsylvania, where he has his place of business. The defendants, Jordan Birger and Marvin Birger, co-partners doing business as Orkney Associates, are residents of Massachusetts with a usual place of business in Cambridge. Jurisdiction of this Court is based on diversity of citizenship and an allegation that damages exclusive of interest and costs exceed $10,000.

The defendants' motion for summary judgment is based on the pleadings, cross-interrogatories and answers thereto, and the affidavit of Jordan Birger filed in support of the motion. Plaintiff's motion is based on "the three depositions and the pleadings including the reply of defendants' Counterclaim."

It appears that on December 12, 1958, plaintiff and defendants executed a contract (copy of which marked "A" is appended to and incorporated in the complaint), by the terms of which defendants were made

"the exclusive selling agent for the plastic squeeze bottles, related to the housewares field now being manufactured by LAWRENCE, and * * the exclusive selling agent for all other houseware items or items related to the houseware field which may be developed and/or manufactured by LAWRENCE for the territory as set forth in Schedule `A'."

Schedule "A" defines the territory as comprising New England, New York, New Jersey, Pennsylvania, Maryland, Delaware, and Washington, D. C. Amendment No. 1 to Schedule "A" provided that defendants were exclusive agents for plaintiff in all 48 States until June 1, 1959, and thereafter only if a certain contingency occurred. It is undisputed that the contingency did not occur, so that from and after June 1, 1959, defendants' exclusive agency was operative only in the States listed in the first sentence of this paragraph. As will appear subsequently in this Opinion, the time period crucial to the decision in this case is well after June 1, 1959.

The contract required plaintiff to pay defendants a ten per cent commission on all completed sales on the 10th day following the month in which goods were shipped. It provided that it is the entire agreement between the parties, that there are no other verbal agreements, and that "this contract is deemed to be mutually exclusive on all blow-molded housewares produced by LAWRENCE. ORKNEY shall handle no competing plastic blow-molded lines and LAWRENCE shall consider ORKNEY as exclusive sales agents as set forth above." The contract remained in force and effect until August of 1960, when it was terminated upon mutual agreement of the parties.

In the amended complaint plaintiff charges that defendants, during the calendar year 1960, represented other manufacturers selling plastic blow-molded lines of houseware items; manufactured and sold on their own account through companies controlled by them competing plastic blow-molded lines of houseware items; sold through agents engaged by them competing plastic blow-molded lines of houseware items; and failed to exercise their best efforts to be the exclusive selling agent for plaintiff for his line of plastic blow-molded houseware items. Plaintiff says that this activity resulted in large sales of merchandise to the Walgreen Drug Company and others which should have inured to plaintiff, whereby plaintiff was deprived of much business during the year 1960 and thereafter, to plaintiff's damage in the amount of $25,000.

Defendants, in their answer, challenge the fact that the jurisdictional amount is involved herein, charge plaintiff with failure to perform his obligations under the contract, and deny the allegations of wrongdoing on their part summarized above. Defendants counterclaim for $3696.22, alleging that figure to be the unpaid balance of a judgment entered in Pennsylvania in favor of defendants in the amount of $4194.20, on the basis of a judgment note given by plaintiff to defendants by reason of commissions due and owing from plaintiff to defendants.

Plaintiff, in his answer to the counterclaim, admits the execution of the judgment note and entry of judgment on October 6, 1960; denies that all of the judgment debt is outstanding; requests an order directing that the Execution issued pursuant to the Pennsylvania judgment be filed with the papers in the instant case; and prays for an injunction against defendants' levying Execution upon the Pennsylvania judgment.

A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. may not be allowed if there exists as between the parties a genuine issue of a material fact. The formalities of the pleadings cannot substitute for the need of real or genuine issues, however, and the Court may look beyond the pleadings to determine whether a genuine issue actually exists. Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F. 2d 766, 772 (1949); Orvis v. Brickman, D.C., 95 F.Supp. 605, 607 (aff'd 90 U.S. App.D.C. 266, 196 F.2d 762 (1952)); United States v. Kansas Gas and Electric Co., 287 F.2d 601, 603 (10 Cir. 1961). An issue of fact cannot be presumed when none is apparent. Converse & Company v. Polaroid Corporation, 141 F. Supp. 631, 632 (D.Mass. 1956). See, also Brisk Waterproofing Co. v. A. Belanger & Sons, 209 F.2d 169, 172 (1 Cir. 1954). If the interrogatories and affidavits of the parties set forth the factual basis of plaintiff's claim with sufficient clarity, and if it is apparent that no factual issue exists which would justify the Court's refusing to direct a verdict, on that claim, then defendant upon motion for summary judgment is entitled to prevail as a matter of law. Jeffress v. Weitzman, 95 U.S.App.D.C. 261, 221 F.2d 542 (1955).

In order to recover in the instant case plaintiff must prove that there has been either a breach by defendants of some material part of the contract between the parties or a breach by defendants of a fiduciary relationship with the plaintiff.

The record in this case establishes that plaintiff seeks to fasten liability upon the...