Odyssey Travel Center, Inc. v. Ro Cruises, Inc.

• Decision Date: 09 May 2003
• Docket Number: No. CIV.A. DKC 2002-0032.,CIV.A. DKC 2002-0032.
• Citation: 262 F.Supp.2d 618
• Parties: ODYSSEY TRAVEL CENTER, INC. v. RO CRUISES, INC.
• Court: U.S. District Court — District of Maryland

Page 618

262 F.Supp.2d 618

ODYSSEY TRAVEL CENTER, INC. v. RO CRUISES, INC.

No. CIV.A. DKC 2002-0032.

United States District Court, D. Maryland.

May 9, 2003.

COPYRIGHT MATERIAL OMITTED

James L Marketos, Washington, DC, Maryellen Noone, Berliner Corcoran and Rowe LLP, Washington, DC, for Plaintiff.

Michael E Unger, Freehill Hogan and Mahar LLP, New York, NY, John H West, III, West and Moore LLC, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

CHASANOW, District Judge.

Presently pending and ready for resolution in this case are the motion of Defendant RO Cruises, Inc. ("ROC")¹ for summary judgment and the conditional motion of Plaintiff Odyssey Travel Center, Inc. ("Plaintiff or "Odyssey") for leave to file an amended complaint. The issues have been fully briefed and no hearing is deemed necessary. Local Rule 105.6. For the reasons set forth in this opinion, Defendant's motion for summary judgment will be granted in part and denied in part, and Plaintiffs motion for leave to file an amended complaint will be denied.

I. Background

The following facts are uncontroverted or set forth in the light most favorable to Plaintiff. Odyssey is a small, 30 year-old travel agency based in Bethesda, Maryland and owned by Dan Patras ("Patras"). Odyssey's principal customer base is the Greek American community of the Washington metropolitan area. Odyssey organizes individual and group travel, including cruises, to Greece, the Carribean, and elsewhere. For most of its existence, Odyssey has conducted business with ROC and its predecessors-in-interest by arranging for travel by Odyssey's customers aboard cruises promoted by ROC.

Defendant ROC is a New York corporation that serves as the North American sales and marketing agent for a cruise ship operator, which Defendant contends is Royal Olympic Cruises, Ltd. ("ROC, Ltd."), based in Piraeus, Greece. Plaintiff, on the other hand, relies on documents filed by Royal Olympic Cruise Lines, Inc. ("ROC, Inc.") with the Securities and Exchanges Commission ("SEC"), demonstrating that ROC and ROC, Ltd. are both wholly-owned subsidiaries of ROC, Inc., which is a public company incorporated in Liberia and based in Greece. See Paper no. 22, Ex. B. Plaintiff states that ROC, Inc., operating through subsidiaries, including the two mentioned above, operates an integrated cruise line business under the trade name "Royal Olympic Cruises." See id. Defendant ROC employs a sales staff in its New York City office to market cruises aboard vessels, including the Olympic Countess, through distribution of brochures and other promotional materials.

In March 1998, Odyssey received a brochure describing Caribbean and South American cruises for the upcoming 1998-99 winter season.² See Paper no. 22, Ex. E. Among the cruises advertised in the brochure was a round-trip cruise on January 15-25, 1999 aboard the Olympic Countess³ from San Juan, Puerto Rico to the Orinoco River ("Orinoco Cruise"). Id. Based largely on the brochure, Odyssey began in early 1998 planning a "4th Grand Hellenic" Caribbean group cruise for Odyssey's customers aboard the Olympic Countess during the Orinoco Cruise.

In the course of planning the "4th Grand Hellenic" group cruise, Odyssey had numerous communications with ROC, both in writing and orally. On May 29, 1998, Patras went to New York City to meet with Arne S. Egeland ("Egeland"), then ROC's Vice President of Sales and Marketing, to discuss the group cruise idea and to negotiate terms of ROC's promotional contribution. Following the meeting, Patras had further telephone conversations with Egeland and his staff about Odyssey's planned cruise. By letter dated July 20, 1998, Egeland confirmed certain details of the arrangements. See Paper no. 21, Ex. 5. Specifically, Egeland offered Odyssey special net fares for 4th Grand Hellenic group cruise members, complimentary cabins for members of the band hired by Odyssey, and financial contributions for promotion of the cruise. See id. ROC sent Odyssey a "Group Confirmation" contract, which in the "Remarks" section at the bottom of the page instructs the recipient to "[p]lease see enclosed Group Policy for terms/conditions." ⁴

Paper no. 21, Ex. 6. On July 24, 1998, Egeland sent Patras a fax supplementing the terms of the promotional contributions promised in the earlier letter.

Odyssey made substantial efforts to promote the 4th Grand Hellenic cruise aboard the Olympic Countess, and between May 1998 and October 30, 1998, devoted most of its efforts to promoting the cruise, foregoing other business opportunities. Odyssey's promotional activities included engaging a band, for which Odyssey entered into an $11,000 contract, printing and distributing flyers and brochures, and placing advertisements in various Greek American newspapers. See Paper no. 2, K 26. On October 30, 1998, Odyssey called ROC to register additional passengers on the cruise and was informed for the first time by a ROC representative, Robert Bush, that the Orinoco Cruise had been cancelled. ROC claimed that the cruise was cancelled in late October 1998 due to poor passenger bookings and revenue projections. ROC offered Odyssey alternative arrangements for the 4th Grand Hellenic group cruise aboard the vessel Stella Solaris, but the alternative involved different sailing dates, a longer itinerary, and higher pricing for Odyssey's group members. See id., ¶ 32. As a result of ROC's cancellation of the Orinoco Cruise, Odyssey cancelled the 4th Grand Hellenic cruise. In addition to the promotional expenses incurred, Odyssey alleges that it lost anticipated profits that it would have made on the cruise and ROC's promised contributions toward promotional expenses. Odyssey also alleges that it suffered considerable embarrassment, loss of good will, and injury to its reputation, especially among Greek American customers.

By letters dated March 23 and May 11, 1999, Odyssey submitted claims to ROC for its alleged expenses and losses arising from the cancellation of the Orinoco Cruise. ROC replied in a letter dated September 30, 1999 containing a counteroffer to pay Odyssey compensation of $5,700.70, which Odyssey rejected. Odyssey brought this action in the Circuit Court for Montgomery County, Maryland, and ROC removed it to this court on January 2, 2002. Odyssey alleges five counts against ROC arising from these events: (1) breach of contract; (2) promissory estoppel (in the alternative to breach of contract); (3) negligent misrepresentation; (4) intentional misrepresentation by concealment; and (5) constructive fraud (in the alternative to intentional misrepresentation by concealment). Odyssey seeks actual and consequential damages for these counts, as well as punitive damages for the intentional misrepresentation count. ROC seeks summary judgment on all counts.

II. Standard of Review

It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Pulliam Inv. Co., 810 F.2d at 1282, citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979).

When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial." Celotex Corp., All U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, All U.S. at 256, 106 S.Ct. 2505.

In Celotex Corp., the Supreme Court stated:

In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."

Celotex Corp., All U.S. at 324, 106 S.Ct. 2548. However, "`a mere scintilla of evidence is not enough to create a fact issue.' " Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984), quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary...