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BUZZMARKETING, LLC v. UPPER DECK COMPANY

May 6, 2004.

BUZZMARKETING, LLC, Plaintiff
v.
THE UPPER DECK COMPANY, LLC, Defendant



The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge

MEMORANDUM AND ORDER

Plaintiff Buzzmarketing LLC ("Buzzmarketing") brings this suit against Defendant The Upper Deck Company LLC ("Upper Deck") alleging four causes of action: (1) breach of written contract; (2) breach of oral contract; (3) breach of implied-in-fact contract; and (4) unjust enrichment/quantum meruit. Defendant has moved for summary judgment, arguing that Plaintiff cannot meet its burden of demonstrating the existence of any written, oral, or implied contract or any actions that would give rise to a quantum meruit claim. For the reasons set out below, the Court grants summary judgment in favor of Upper Deck.

I. FACTUAL BACKGROUND

  The following facts are undisputed, except where specifically noted otherwise. Buzzmarketing is an advertising firm incorporated in Pennsylvania (Compl. ¶ 1); Upper Deck is a California-based producer of toys (Compl. ¶ 2). In January 2003, Upper Deck contacted Buzzmarketing as part of a search for marketing firms to handle the launch of a new toy, named "Breakey." (Hughes Dep. at 59.) The following month, Upper Deck's Vice President of Sales Rich Henry attended an exhibition in New York, where he met with Buzzmarketing CEO Mark Hughes. After discussing the Breakey product, Henry requested that Hughes prepare a marketing proposal for Upper Deck to evaluate. (Id. at 69-70.) Upper Deck rejected each of the first four proposals, which were sent between March and April 2003. (Id. at 71-72, 157, 160-61; Def.'s Mot. for Summ. J. at 3-5.) On approximately April 15, Buzzmarketing sent to Upper Deck the final proposal, which is the proposal at issue in this case. (Hughes Dep. Ex. 18 at 2.) That proposal described a domestic marketing campaign that entailed, in relevant part, paying a popular music group to endorse the product. (See Hughes Decl. ¶ 6.) The proposal also contained a clause stating that "[t]his Agreement may be executed in counterparts and facsimile signatures shall suffice as originals." (Hughes Dep. Ex. 7 at 8.)

  On May 14, Henry and Hughes had a phone conversation regarding the final proposal. (Hughes Decl. ¶ 4; Def.'s Mot. for Summ. J. at 6.) The content of this conversation is in dispute: Buzzmarketing alleges that an oral contract was formed; Upper Deck states that it was merely a part of the ongoing negotiations. After the conversation, Hughes emailed an amended version of the final proposal to Upper Deck, along with a request for a $122,500.00 wire transfer. (Hughes Dep. Ex. 7 at 1.)

  On May 15, in response to Hughes's request for payment, Henry sent an internal email asking Upper Deck's marketing director Louise Curcio to "follow up on getting the contract signed and [Buzzmarketing's] money wired." (Hughes Dep. Ex. 11 at 1.)

  On May 30, Upper Deck's marketing manager Kristy Watson phoned Hughes to say that she would call him when the $122,500.00 was going to be wired. (Hughes Decl. ¶ 8.) That same day, Curcio left a voicemail for Hughes stating that he would be receiving the wire transfer on Monday or Tuesday of the following week. (Id. ¶ 9.)

  On May 31, an article appeared in Billboard Magazine quoting Jeff Greenfield, of the marketing firm 1st Approach, as stating that Upper Deck would be sponsoring a music group's domestic and European tours in exchange for that group's endorsement of a new Upper Deck product. See Liz Skinner, Bling! Bling! Ka-Ching!, BILLBOARD, May 31, 2003. Greenfield subsequently informed Hughes that someone from Upper Deck (either Curcio or spokesperson Don Williams) had asked the Billboard reporter to correct the article to reflect that the marketing arrangement only covered domestic, not European, advertising. (Hughes Dep. at 119-20.)

  On June 2, Upper Deck sent Hughes a revised version of the final proposal. (Hughes Dep. Ex. 15.) On June 3, Hughes sent Upper Deck further revisions to the written agreement. (Id. Ex. 16.) Later that day, Upper Deck responded with yet more revisions. (Id. Ex. 17.)

  Finally, on June 11, Henry called Hughes to inform him that Upper Deck would not be launching the Breakey product, and therefore Buzzmarketing's services would not be needed. (Hughes Decl. ¶ 10.) Henry also requested an itemized list of Buzzmarketing's costs for reimbursement, which Buzzmarketing submitted but Upper Deck never paid. (Id.)

 II. STANDARD OF REVIEW

  Summary judgment is appropriate when the admissible evidence fails to demonstrate a dispute of 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, 247-48 (1986). When the moving party does not bear the burden of persuasion at trial, that party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable jury to find for him at trial. Anderson, 477 U.S. at 248. In order to meet this burden, the opposing party must point to specific, affirmative evidence in the record and not simply rely on mere allegations, conclusory or vague statements, or general denials in the pleadings. Celotex, 477 U.S. at 324. In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not make credibility determinations or weigh the evidence in ruling upon the motion. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).

 III. DISCUSSION

  A. Count I: Breach of ...


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