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Marine Lumber Co. v. Precision Moving & Storage, Inc.

United States District Court, D. Hawaii

March 28, 2017

MARINE LUMBER CO., an Oregon corporation, Plaintiff,
PRECISION MOVING & STORAGE INC., a Hawaii corporation; DOE DEFENDANTS 1-50, Defendants.


          Leslie E. Kobayashi District Judge.

         Before the Court is Plaintiff Marine Lumber Co.'s (“Plaintiff” or “Marine Lumber”) Motion for Summary Judgment (“Motion”), filed on August 5, 2016. [Dkt. no. 17.] Defendant Precision Moving & Storage Inc. (“Defendant” or “Precision Moving”) filed its memorandum in opposition on October 10, 2016, and Plaintiff filed its reply on October, 17, 2016. [Dkt. nos. 28, 30.] This matter came on for hearing on October 31, 2016. On November 1, 2016, this Court issued an entering order granting Plaintiff leave to file a surreply, and Plaintiff did so on November 15, 2016. [Dkt. nos. 38, 40.]

         On January 31, 2017, this Court issued an entering order stating that Plaintiff's Motion was DENIED WITHOUT PREJUDICE (“1/31/17 EO Ruling”). [Dkt. no. 47.] The instant order supersedes the 1/31/17 EO Ruling. After careful consideration of the Motion, supporting and opposing memoranda, the arguments of counsel, and the relevant legal authority, Plaintiff's Motion is HEREBY DENIED WITHOUT PREJUDICE for the reasons set forth below.


         Marine Lumber filed its Complaint on June 30, 2016, based on diversity jurisdiction. [Complaint at ¶ 4.] The instant case arises from Precision Moving's alleged agreement to purchase certain materials from Marine Lumber. [Id. at ¶ 7.] The Complaint alleges the following claims: breach of contract (“Count I”); [id. at ¶¶ 6-15;] action on account (“Count II”); [id. at ¶¶ 16-18;] account stated (“Count III”); [id. at ¶¶ 19-22;] unjust enrichment (“Count IV”); [id. at ¶¶ 23-28;] quantum meruit (“Count V”); [id. at ¶¶ 29-32;] and assumpsit (“Count VI”) [id. at ¶¶ 33-35]. Plaintiff seeks the following relief: judgment against Defendant in the amount of $130, 690.00; ten percent interest from the date the amount was due until it is paid in full; reasonable attorneys' fees and costs; “disbursements incurred as a result of Precision Moving's conduct”; and any other just and equitable relief. [Id. at pg. 9.]

         I. Motion

         In the instant Motion, Plaintiff seeks summary judgment as to each of the claims alleged in the Complaint and an award of all of the relief prayed for in the Complaint. [Motion at 2.] Plaintiff submits the following evidence in support of its position.

         Plaintiff asserts that it had a binding agreement with Precision Moving, pursuant to which Precision Moving agreed to purchase certain materials from Marine Lumber and Marine Lumber agreed to provide the materials and to invoice Precision Moving for the cost. The period of the agreement began on or about January 29, 2016 and continued through June 3, 2016. Marine Lumber did provide Precision Moving with the materials at the agreed-upon prices and sent invoices to Precision Moving. Precision Moving retained the materials. The total amount of the invoices was $130, 690.00. [Pltf.'s Separate and Concise Statement of Facts in Supp. of Motion (“Pltf.'s CSOF”), filed 8/5/16 (dkt. no. 18), Decl. of Edward McGrath (“E. McGrath Decl.”) at ¶¶ 4-7.[1] Edward McGrath states that $130, 690.00 is the reasonable value of the goods that Marine Lumber provided to Precision Moving, at Precision Moving's request. [Id. at ¶ 12.] He also states that Marine Lumber “has performed all obligations required of it, or such obligations have been excused, and all other conditions precedent to Precision Moving's obligation to pay have occurred.” [Id. at ¶ 11.]

         The invoices dated January 29, 2016, March 31, 2016, and April 13, 2016 were each due within sixty days of the date on the invoice; and the June 2, 2016 and June 3, 2016 invoices were each due within thirty days of the date on the invoice. [E. McGrath Decl., Exhs. A-E (1/29/16 Invoice, 3/31/16 Invoice, 4/13/16 Invoice, 6/2/16 Invoice, 6/3/16 Invoice (collectively “the Invoices”)).[2] Precision Moving has not paid anything to Marine Lumber on the Invoices. [E. McGrath Decl. at ¶ 10.] On or about June 17, 2016, Marine Lumber provided Precision Moving with a statement of account and, upon the provision of the statement, Precision Moving was indebted to Marine Lumber in the amount of $130, 690.00 for the materials that Precision Moving purchased. [Pltf.'s CSOF, Decl. of Scott Tracy (“Tracy Decl.”) at ¶ 5.[3] Mr. Tracy spoke with Michelle Rodrigues of Precision Moving on or about June 17, 2016 about the outstanding Invoices. According to Mr. Tracy, Ms. Rodrigues did not object to the amount owed, apologized for any inconvenience they had caused, and promised that Precision Moving would promptly make payment in full. Precision Moving, however, never made payment. [Id. at ¶¶ 5-7.]

         Plaintiff's counsel submitted a declaration authenticating emails that he sent to Ms. Rodrigues and William Fraser in June 2016. [Pltf.'s CSOF, Decl. of Joshua D. Stadtler (“Stadtler Decl.”) at ¶¶ 3, 5-7, 9, Exhs. G-J.] Mr. Stadtler states that he spoke with Mr. Fraser on or about June 29, 2016. According to Mr. Stadtler, Mr. Fraser acknowledged the debt and proposed a payment plan, but Marine Lumber never received any payment from Precision Moving. [Id. at ¶¶ 7-8.]

         II. Memorandum in Opposition

         Defendant asserts that all of the material facts described in the Motion are in dispute, and almost $40, 000 of Marine Lumber's purported damages are attributable to materials purchased by and provided to one of Precision Moving's competitors. [Mem. in Opp. at 2.] Defendant submitted a declaration by its president: 1) denying that he entered into an oral contract with Marine Lumber on behalf of Precision Moving; and 2) stating that none of his employees did so, nor were any of them authorized to do so. [Def.'s Concise Statement of Facts in Opp. to Motion (“Def.'s CSOF”), filed 10/10/16 (dkt. no. 29), Decl. of William A. Fraser (“Fraser Decl.”) at ¶¶ 2-4.] Mr. Fraser states that the agreement, or agreements, alleged by Marine Lumber were never formed, and that no meeting of the minds occurred. [Id. at ¶ 6.] Mr. Fraser states that Precision Moving “did not contract for or receive, and has no record of receiving [the] materials [referred to in the 6/2/16 Invoice and the 6/3/16 Invoice], as well as others that Marine Lumber Company is suing on.” [Id. at ¶¶ 8-9.] He also states, in the context of describing a June 29, 2016 conversation with Mr. Stadtler: “To the extent Plaintiff shipped any goods to Defendant, the goods were unwanted and defective goods from China that Defendant did not request, that Defendant rejected, and that Plaintiff for some inexplicable reason refused to take back.” [Id. at ¶ 9.] Mr. Fraser states that the Stadtler Declaration and Mr. Stadtler's letters contain numerous false statements. [Id. at ¶ 10.] Mr. Fraser states that he never acknowledged to Mr. Stadtler or anyone else that Precision Moving owed a debt to Marine Lumber and he never proposed a payment plan to Mr. Stadtler or anyone else. [Id. at ¶¶ 11-14.] According to Mr. Fraser, because he never acknowledged the debt, he “did not respond to Mr. Stadtler's self-serving emails.” [Id. at ¶ 11.]

         Defendant submitted a declaration by Ms. Rodrigues, who, at all relevant times, worked in Precision Moving's accounting department. [Def.'s CSOF, Decl. of Michelle Rodrigues (“Rodrigues Decl.”) at ¶ 2.] She states that the Tracy Declaration makes numerous false statements. [Id. at ¶ 3.] She denies that she spoke with anyone “named Scott Tracy regarding any alleged outstanding balance due and owing” to Marine Lumber. [Id. at ¶ 4.] She denies that she: acknowledged to anyone that Precision Moving owed any money to Marine Lumber; apologized for any inconvenience caused by the purported non-payment to Marine Lumber; or promised that Precision Moving would pay Marine Lumber any money. She states that she does not have the authority do any of those things. [Id. at ¶¶ 5-7.]

         The Complaint alleges: “Precision Moving also breached its agreement with Marine Lumber by anticipatorily repudiating its payment obligations for the invoices dated June 2, 2016, and June 3, 2016.” [Complaint at ¶ 11.] Defendant argues that this is an acknowledgment that Precision Moving did not want the materials that Marine Lumber was shipping to it. [Mem. in Opp. at 5-6.] Further, not only are the Invoices for materials that Precision Moving did not order, two of them - totaling almost $40, 000 - are for materials shipped to Crown Relocations (“Crown”), not Precision Moving.[4] [Id. at 6 (citing Pltf.'s Exhs. D-E).[5] Defendant argues that the there is no evidence in the record that Precision Moving received any of the materials referred to in the Invoices. [Id.]

         Defendant argues that the statements in the Stadtler Declaration, the Tracy Declaration, and the E. McGrath Declaration are disputed by the Fraser Declaration, the Rodrigues Declaration, and the declaration of Earnest Moritomo[6] show that the material facts of this case are in dispute. Defendant argues that all six of Plaintiff's claims are based upon disputed material facts because the parties dispute whether any contract was formed or any meeting of the minds existed.

         III. Reply

         Plaintiff argues that the transactions at issue in the instant case followed the same pattern as a prior transaction between the parties in 2015, except that Precision Moving paid for those materials. [Reply at 2.] Mr. Tracy states that, in early 2015, he began discussing with Mr. Fraser the possibility of Precision Moving ordering materials from Marine Lumber. They exchanged emails and spoke on the phone. [Statement of Objections in Response to Def.'s CSOF (“Pltf.'s Reply CSOF”), filed 10/17/16 (dkt. no. 31), Reply Decl. of Scott Tracy (“Tracy Reply Decl.”) at ¶¶ 3-4, Exhs. K-L.] Around June 2015, Mr. Fraser placed a phone order on behalf of Precision Moving with Mr. Tracy. Mr. Tracy arranged for the materials to be shipped to Crown and for Precision Moving to pick up the materials from Crown. [Tracy Reply Decl. at ¶ 5, Exh. M (email dated 6/25/15 to Lezlie St. Germain of Crown from Tracy - with copy to Fraser - regarding Fraser picking up materials from Crown).] According to Mr. Tracy, Crown is

a moving company with offices in several states in the U.S., including Hawaii. Marine [Lumber] regularly ships containers with inventory to Crown in Hawaii, both for Crown's local business operations and Crown's customers. Whenever there is an excess of Marine [Lumber] inventory in transit or already delivered to Crown, Marine [Lumber] typically offers it to other customers.

[Id. at ¶ 5.] On July 1, 2015, Lisa McGrath sent an invoice dated June 26, 2015 for the materials to Mr. Fraser via email, with a copy to Mr. Tracy.[7] [Def.'s Reply CSOF, Decl. of Lisa McGrath (“L. McGrath Reply Decl.”) at ¶ 3, Exh. N.] The upper right corner of the invoice states “Marine Lumber Inventory” with Crown's name and address. According to Lisa McGrath, this notation “means that the container of wooden crates that Precision purchased from Marine [Lumber] was either in transit or already delivered to Crown's Mililani warehouse. Whenever Marine [Lumber] sells goods to customers in this manner, that same ‘Marine Lumber ...

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