Siever v. Bwgaskets, Inc.
| Decision Date | 27 October 2009 |
| Docket Number | Case No. 6:08-cv-1388-Orl-19GJK. |
| Citation | 669 F.Supp.2d 1286 |
| Parties | Robert SIEVER, Ginney Siever, Plaintiffs, v. BWGASKETS, INC., Bruce M. Williams, Ann P. Williams, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Kathryn Diane Weston, Cobb Cole, Daytona Beach, FL, Phillip D. Eaton, Law Office of Phillip D. Eaton, San Clemente, CA, for Plaintiffs.
Catherine M. Taylor, Gregory Dean Snell, Snell Legal, Ormond Beach, FL, for Defendants.
This case comes before the court on the following:
1. Motion for Summary Judgment by Defendants BWGaskets, Inc., Bruce M. Williams, and Ann P. Williams (Doc. No. 52, filed July 22, 2009);
2. Memorandum in Opposition to Defendants' Motion for Summary Judgment by Plaintiffs Robert Siever and Ginney Siever (Doc. No. 56, filed Aug. 3, 2009);
3. Motion for Partial Summary Judgment by Plaintiffs Robert Siever and Ginney Siever (Doc. No. 58, filed Aug. 6, 2009); and
4. Response to Plaintiffs' Motion for Partial Summary Judgment by Defendants BWGaskets, Inc., Bruce M. Williams, and Ann P. Williams (Doc. No. 60, filed Aug. 14, 2009).
Plaintiffs Robert and Ginney Siever filed this action against Defendants BWGaskets, Inc., Bruce M. Williams and Ann P. Williams (collectively, "Defendants") alleging a violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. §§ 501.201-213 (2008), common law fraud, breach of three separate contracts, and violation of the Florida Sale of Business Opportunities Act ("FSBOA"), Fla. Sta. §§ 559.801-815 (2008). (Doc. No. 26, filed Nov. 17, 2008.) Defendants move for summary judgment on each of the six counts alleged by the Plaintiffs. (Doc. No. 52.) Plaintiffs move for partial summary judgment with respect to liability for the breach of contract claims in Counts III, IV and V. (Doc. No. 58.)
The present action arises out of a business relationship between the Plaintiffs and the Defendants involving the exclusive use of the "Gasket Guy" trademark and trade name in the sale of commercial refrigeration gaskets. (Doc. No. 26 ¶¶ 7-29.) The relationship between the parties began when the Plaintiffs met Bruce Williams, owner of BWGaskets, at a business opportunity exposition in California. (Id. ¶ 7.) At the exposition, Bruce Williams advised the Plaintiffs that BWGaskets was selling the exclusive right to the use of the "Gasket Guy" trade name in various markets around the country, along with a "Gasket Guy" start-up package and training. (Id. ¶ 8.) Following a number of discussions between the parties, the Plaintiffs eventually entered into three separate agreements with the Defendants. (Id. ¶¶ 11, 15, 23.) These agreements conveyed to the Plaintiffs the exclusive right to use the "Gasket Guy" trade name in the Los Angeles, Orange County, and Las Vegas territories. (Id. ¶¶ 11, 15, 23.)
After entering into the agreements with the Defendants, the Plaintiffs discovered that other businesses were selling gaskets under the "Gasket Guy" trade name in the Los Angeles and Orange County territories. (Id. ¶ 18.) The Plaintiffs informed the Defendants of the infringement. (Id.) An attorney for BWGaskets subsequently sent cease and desist letters to the infringing "Gasket Guy" operators in the Los Angeles and Orange County territories; however, no further action was undertaken by the Defendants to protect the Plaintiffs from the reported third-party infringement. (Id. ¶ 18.)
With respect to the Las Vegas Agreement, Defendants disclosed to the Plaintiffs that John Grose was operating a business under the "Gasket Guy" trade name in the Las Vegas territory. Grose had allegedly defaulted on his agreement with the Defendants and was to be removed from the territory. (Id. ¶¶ 21-23.) The Plaintiffs maintain that the Defendants assured them that legal steps were being taken to remove Grose from the territory so that the Plaintiffs would be the exclusive users of the "Gasket Guy" trade name in the Las Vegas territory. (Doc. No. 58 ¶ 19.) In reliance on these representations, the Plaintiffs purchased the territory from the Defendants. (Id. ¶ 21.) Ultimately, Grose continued to operate under the "Gasket Guy" trade name in the Las Vegas territory despite the Defendants' efforts to remove him. (Id. ¶ 26.) As a result, the Plaintiffs chose to close down their operations in the territory. (Id. ¶ 27.)
A party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.2004). An issue of fact is "material" if, under the applicable substantive law, it might affect the outcome of the case. Hickson Corp., 357 F.3d at 1259. An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id. at 1260. A court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.; Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
The party moving for summary judgment has the burden of proving that: (1) there is no genuine issue as to any material fact, and (2) it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The court may not weigh conflicting evidence or weigh the credibility of the parties. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir.1993). If a reasonable fact finder could draw more than one inference from the facts and that inference creates an issue of material fact, a court must not grant summary judgment. Id. On the other hand, summary judgment must be granted "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 the party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. In addition, when a claimant fails to produce "anything more than a repetition of his conclusory allegations," summary judgment for the movant is "not only proper but required." Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981).
In the Second Amended Complaint, the Plaintiffs set forth a number of claims arising out of a business relationship with the Defendants. In Count I, Plaintiffs allege violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. §§ 501.201 et seq., for unfair trade practices including; false advertising, selling a non-existent product or service, violations of the Florida Sale of Business Opportunities Act, and violations of federal franchise law. In Count II, Plaintiffs bring a claim for fraud in the inducement, contending that the Defendants and their representatives made false statements regarding the "Gasket Guy" trade name and their ability and willingness to protect the mark from third-party infringement. In Counts III, IV and V, Plaintiffs allege breach of three separate agreements. Finally, in Count VI, Plaintiffs contend that the Defendants violated the Florida Sale of Business Opportunities Act ("FSBOA"). Fla. Stat. §§ 559.80 et seq.
Defendants move for summary judgment on the FDUTPA and fraud claims in Counts I and II claiming that neither the Defendants nor their representatives made false representations regarding the Los Angeles, Las Vegas, or Orange County Agreements. In addition, with respect to Count I, Defendants argue that the Plaintiffs fail to establish actual damages as required under FDUTPA. With respect to Counts III, IV and V, the Defendants argue that BWGaskets had the right to license the "Gasket Guy" trade name at the time it entered into the agreements with the Plaintiffs and did not breach the express terms of the exclusivity provision of the agreements. On Count V, the Defendants allege that the Las Vegas Agreement was subject to an valid oral modification taking into consideration the presence of an infringing third-party. Finally, on Count VI, the Defendants contend that the Plaintiffs fail to establish damages as required under FSBOA.
Plaintiffs move for partial summary judgment with respect to liability in the breach of contract claims of Counts III, IV and V. The Plaintiffs maintain that the Defendants failed to protect the Plaintiffs' territories from third-party infringement, as required by the agreements, and that the Defendants did not have the right to license the "Gasket Guy" trade name at the time they entered into the agreements purporting to grant such rights to the Plaintiffs.
In Count I of the Second Amended Complaint, the Plaintiffs allege that the Defendants' actions including false advertising, selling a non-existent product, violating the Florida Sale of Business Opportunities Act, and violating federal franchise law constitute unfair trade practices under Section 501.203(3) of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA").1 The Defendants maintain in their Motion for Summary Judgment that the Plaintiffs' allegations under FDUTPA fail as a matter of law because the agreements do not set forth an affirmative duty for the Defendants to protect the Plaintiffs' territories...
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