Mitsubishi Caterpillar Forklift v. Superior Serv., Civ. 99-19-P-C.

• Decision Date: 08 December 1999
• Docket Number: No. Civ. 99-19-P-C.,Civ. 99-19-P-C.
• Citation: 81 F.Supp.2d 101
• Parties: MITSUBISHI CATERPILLAR FORKLIFT AMERICA, INC., Plaintiff, v. SUPERIOR SERVICE ASSOCIATES, INC. and Craig T. Burkert, Defendants.
• Court: U.S. District Court — District of Maine

81 F.Supp.2d 101

MITSUBISHI CATERPILLAR FORKLIFT AMERICA, INC., Plaintiff, v. SUPERIOR SERVICE ASSOCIATES, INC. and Craig T. Burkert, Defendants.

No. Civ. 99-19-P-C.

United States District Court, D. Maine.

December 8, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John Hubbard Rich, III, Fred W. Bopp, III, Perkins, Thompson, Hinckley & Keddy, Portland, ME, Thomas J. Collin, Thompson, Hine & Flory, PLL, Cleveland, OH, for Plaintiff.

Lee Bals, George J. Marcus, Michael Joseph Gartland, Marcus, Grygiel & Clegg, P.A., Portland, ME, for Defendants.

AMENDED ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

GENE CARTER, District Judge.

The United States Magistrate Judge having filed with the Court on October 1, 1999, with copies to counsel, his Memorandum Decision on Motions to Strike and Recommended Decision on Cross-Motions for Partial Summary Judgment (Docket No. 53); and Defendants having filed, on October 21, 1999, their appeal from the Memorandum Decision on Motions to Strike and objection to the Recommended Decision on Cross-Motions for Partial Summary Judgment (Docket No. 56), to which appeal and objection Plaintiff filed its response on November 8, 1999 (Docket No. 57); and this Court having reviewed and considered the Magistrate Judge's Memorandum Decision and Recommended Decision, together with the entire record; and this Court having made a de novo determination of all matters adjudicated by the Magistrate Judge's Memorandum Decision and Recommended Decision, and concurring with the decision and recommendations of the United States Magistrate Judge for the reasons set forth therein, it is ORDERED as follows:

(1) The Magistrate Judge's Memorandum Decision granting Plaintiff's Motion to Strike (Docket No. 43) is hereby AFFIRMED.

(2) The Magistrate Judge's Recommended Decision on Cross-Motions for Partial Summary Judgment is hereby AFFIRMED.

(3) Defendant's objection to the Magistrate Judge's Recommended Decision is hereby DENIED.

(4) Plaintiff's Motion for Partial Summary Judgment is hereby GRANTED as to Count I of the Amended Complaint.

(5) Plaintiff's Motion for Partial Summary Judgment is hereby GRANTED as to Counts I-IV and VII-VIII of the Counterclaim and is otherwise DENIED.

(6) Defendants' Motion for Partial Summary Judgment is hereby GRANTED as to Count III of the Amended Complaint and is otherwise DENIED.

(7) Defendants' Motion to Strike (Docket No. 40) is MOOT.¹

MEMORANDUM DECISION ON MOTIONS TO STRIKE AND RECOMMENDED DECISION ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT¹

DAVID M. COHEN, United States Magistrate Judge.

In this action arising out of a business relationship, the plaintiff, Mitsubishi Caterpillar Forklift America, Inc. ("MCFA"), moves for summary judgment on the first two counts of its five-count amended complaint and all counts of the defendants' counterclaim. The defendants, Superior Service Associates, Inc. ("SSA") and Craig T. Burkert, its president and owner of half of its shares, move for summary judgment on Counts II-V of the amended complaint and Counts I and II of their counterclaim. Count I of the amended complaint is asserted against SSA only. Counts III and V of the amended complaint are asserted only against Burkert. The plaintiff and the defendants have each filed motions to strike portions of the materials submitted by their opponents in connection with the motions. I grant one of the motions to strike, and I recommend that the court grant both summary judgment motions in part and deny them in part.

I. Summary Judgment Standards

Summary judgment is appropriate only 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute is resolved favorably to the nonmovant. By like token, `genuine' means that `the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party....'" McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (citations omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir.1997). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, "the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trial worthy issue." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548); Fed. R.Civ.P. 56(e). "This is especially true in respect to claims or issues on which the nonmovant bears the burden of proof." International Ass'n of Machinists and Aerospace Workers, AFL-CIO, v. Winship Green Nursing Center, 103 F.3d 196, 200 (1st Cir.1996) (citations omitted).

The mere fact that both parties seek summary judgment does not render summary judgment inappropriate. 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure ("Wright, Miller & Kane") § 2720 at 19. For those issues subject to cross-motions for summary judgment, the court must draw all reasonable inferences against granting summary judgment to determine whether there are genuine issues of material fact to be tried. Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 429 (1st Cir. 1992). If there are any genuine issues of material fact, both motions must be denied as to the affected issue or issues of law; if not, one party is entitled to judgment as a matter of law. 10A Wright, Miller & Kane § 2720 at 24-25.

II. Procedural Background

Before the pending motions for partial summary judgment were filed, Counts V and VI of the counterclaim were dismissed by stipulation. Docket No. 18. The defendants have now stated that summary judgment in favor of the plaintiff may be entered on Counts III, VII and VIII of their counterclaim. Objection of Defendants/Counterclaim Plaintiffs to Motion of Plaintiff for Partial Summary Judgment and Incorporated Memorandum of Law ("Defendants' Objection") (Docket No. 31) at [1] n. 1. Accordingly, the plaintiff's motion for partial summary judgment will be considered here only with respect to Counts I and II of the amended complaint and Counts I, II and IV of the counterclaim. The defendants' motion is unaffected by these events.

III. Factual Background

The summary judgment record includes the following appropriately supported material facts that are not in dispute.² MCFA is a Delaware corporation with its principal place of business in Houston, Texas and is in the business of manufacturing and distributing lift trucks and parts used in connection with lift trucks. Plaintiff's Statement of Material Facts as to Which There is No Genuine Issue to be Tried ("Plaintiff's SMF") (Docket No. 21) ¶ 1; Defendants'/Counterclaim Plaintiffs' (1) Response to Plaintiff's Statement of Material Facts, and (2) Opposing Statement of Material Facts Pursuant to D. Me. LR 56(c) ("Defendants' Opposing SMF") (Docket No. 32) ¶ 1. SSA is a Maine corporation with a former place of business in Gorham, Maine. Plaintiff's SMF ¶ 4; Defendants' Opposing SMF ¶ 4. Defendant Burkert is the president of SSA, owns 50% of its shares, and currently resides in Yarmouth, Maine. Plaintiff's SMF ¶ 5; Defendants' Opposing SMF ¶ 5.

SSA was an authorized dealer for MCFA pursuant to a Sales and Service Agreement dated November 4, 1994 and a Sales and Service Agreement dated March 6, 1995. Affidavit [of Thomas M. Labrador] ("Labrador Aff."), Item 1 in Volume 1, Appendices to Plaintiff's Motion for Summary Judgment, ¶¶ 5-6; Affidavit of Craig T. Burkert in Support of Objection of Defendants/Counterclaim Plaintiffs to Motion of Plaintiff for Partial Summary Judgment ("Second Burkert Aff.") (Docket No. 34) ¶¶ 17, 34. In 1993 Southworth-Milton, Inc., then an authorized dealer for Caterpillar lift trucks located in Maine, informed MCFA that it would discontinue its lift truck operations within 12 months. Affidavit [of Stephen R. Frohbieter] ("Frohbieter Aff."), Item 2 in Volume 1, Appendices to Plaintiff's Motion for Summary Judgment, ¶ 3. Burkert responded to an advertisement that appeared in The Wall Street Journal on August 25, 1994 seeking persons interested in a "major brand forklift dealership" for Maine, New Hampshire, Vermont, Massachusetts and/or New York. Second Burkert Aff. ¶¶ 2-4 & Item 3 in Defendants'/Counterclaim Plaintiffs' District of Maine Local Rule 26(c) List Filed in Conjunction With Objection to Motion of Plaintiff for Partial Summary Judgment ("Defendants' Documents") (Docket No. 33). Burkert met with representatives of MCFA in Texas, who gave him certain documents relevant to the Southworth-Milton dealership. Second Burkert Aff. ¶ 4; Deposition of Mitsubishi Caterpillar Forklift America Inc. ("Plaintiff's Deposition"), Item 1 in Defendants' Documents, at 81-83; Deposition of Craig T. Burkert ("Burkert Deposition"), Item 6 in Volume 2, Appendices to Plaintiff's Motion for Summary Judgment, at 33, 57-58, 107.

Burkert spent the majority of his time during the second half of October 1994 at Southworth-Milton's Portland facility, where the general manager arranged for him to have his own office. Burkert Deposition at 116-17. Burkert and MCFA executed a letter of intent dated October 21, 1994 in which MCFA expressed its intention to...