The opinion of the court was delivered by: Lee, District Judge.
This case is before the Court on a Motion for Summary
Judgment by defendant, O.H. Materials Corp., (OHM), which
contends that all claims asserted by plaintiff, Project
Development Group, Inc. (PDG) are devoid of material issues of
fact and should be decided in favor of OHM as a matter of law.
In 1987, the Olin Chemical Corp. (Olin) decided to demolish
its unused chemical facility in Moundsville, West Virginia.
Environmental regulations required that the residue of
hazardous chemicals and the asbestos and other insulating
materials in the plant be removed and transported for disposal
before the demolition could be done.
OHM was one of the contractors on Olin's list of those
approved to submit bids for the decontamination and insulation
removal at the Moundsville plant. OHM submitted a joint
proposal with an insulation contractor known as Biscraft/Brand
(Brand) to Olin during the first round of bidding. Olin advised
OHM that the insulation bid submitted by Brand was high.
After the first round of bids, Olin decided to entertain lump
sum bids favoring a single contractor for both phases of the
project. OHM contends that the delay resulting from Olin's
decision to rebid afforded it the opportunity to do its own
estimates on the insulation phase of the project. Though OHM
considered bidding the entire project itself, it decided to
solicit bids from two other insulation contractors,
Ameral-Neumayer (Ameral) and PDG.
In March of 1988, OHM's representatives twice met with PDG's
Vice President, David D'Appolonia (D'Appolonia). At the first
meeting, on March 2, D'Appolonia expressed an interest in
submitting a bid to OHM, but claimed it would do so only if OHM
agreed to use PDG on an exclusive basis if OHM was awarded the
Olin contract. OHM contends that their representatives told
D'Appolonia there would be no exclusive contract, but PDG could
submit a bid as any subcontractor would.
At the second meeting on March 10, D'Appolonia met with Steve
Smith (Smith), OHM's Midwest Region Manager, and Doug Marquart
(Marquart), a Project Development Coordinator with OHM. OHM
contends that Smith and Marquart reiterated that there would be
no exclusive agreement with PDG. At that time, Smith allegedly
informed D'Appolonia that OHM had estimated the project itself,
and was considering submitting its own bid to self-perform the
insulation removal phase of the project. PDG was allegedly
informed that it could submit a bid for consideration as any
PDG contends that D'Appolonia informed Smith and Marquart
that if, after they've heard from Ameral, they were interested
in receiving PDG's proposal, OHM should contact D'Appolonia
because PDG's price and proposal would only be given under an
exclusive arrangement. On Friday,
March 11, 1988, Marquart allegedly called D'Appolonia and said
that OHM had not heard from Ameral and therefore was going to
use PDG. D'Appolonia contends that he believed that Marquart
was authorized to make the call and obtain PDG's proposal. On
that basis, D'Appolonia delivered a written bid proposal to OHM
on Saturday, March 12, 1988. PDG's proposal did not, however,
include the price. D'Appolonia had advised Marquart that he
would wait until Monday to supply such price, in case OHM heard
from Ameral at the last minute.
On Monday, March 14, 1988, D'Appolonia again spoke with
Marquart, and Marquart allegedly informed him that OHM had not
heard from Ameral. PDG alleges that D'Appolonia was then told
that PDG's bid would be in OHM's proposal. Following this
telephone conversation, D'Appolonia telecopied PDG's prices to
After OHM received and evaluated the various bid proposals,
OHM submitted its own lump sum bid on the decontamination and
asbestos removal phase of the project to Olin without any
references to any subcontractor. OHM contends that it utilized
public governmental regulations, as well as portions of PDG's
asbestos removal procedures*fn1 as part of its bid package. In
June of 1988, Olin awarded the lump-sum contract to OHM. OHM
self-performed both phases of the project utilizing its own
work force, and without the use of any subcontractor.
In August of 1988, PDG learned that OHM had secured the
contract from Olin and had begun self performing the
asbestos/insulation removal. PDG immediately contacted OHM,
demanding that it honor its agreement with PDG. OHM denied the
existence of any agreement, and PDG filed suit for breach of
During discovery of the breach of contract action, PDG
learned that OHM had copied portions of PDG's bid proposal
verbatim and had submitted it to Olin as its own work. PDG
alleges that the bid submitted by OHM as its own, was
essentially a "cut and paste" product derived from PDG's
proposal. PDG further contends that OHM copied verbatim from
PDG's written technical approach and appropriated other trade
secrets and proprietary information which PDG had shared with
OHM on a confidential basis.
PDG then brought an additional action against OHM for
copyright infringement, misappropriation of trade secrets,
conversion, and unjust enrichment. The two cases before the
Court*fn2 were consolidated, discovery was completed, and the
summary judgment motion filed pursuant to Rule 56(c) of the
Federal Rules of Civil Procedure*fn3 is ready for disposition.
In interpreting Rule 56(c), the United States Supreme Court
in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.CT. 2548, 91
L.Ed.2d 265 (1986) has ruled that:
"The plain language . . . mandates entry summary
judgment, after adequate time for discovery and
upon motion, 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 that party will bear the burden of proof at
trial. In such a situation, there can be `no
genuine issue as to any material fact,' since a
complete failure of proof concerning an essential
element of the non-moving party's case necessarily
renders all other facts immaterial."
Celotex, 477 U.S. at 322-323, 106 S.Ct. at 2552.
An issue of material fact is "genuine" only if the evidence
is such that a reasonable
jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Incorporated, 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party bears
the initial burden of identifying for the Court those portions
of the record which it believes demonstrate the absence of a
material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. To
overcome the movant's assertion that there is no material issue
of fact, the opposing party must point to specific evidence.
Williams v. Borough of West Chester, 891 F.2d 458, 463-64 (3d
In its Motion for Summary Judgment, OHM contends that no oral
contract was formed, PDG's bid proposal was merely an offer
which was not accepted, and that the ...