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AT&T Corp. v. CPB International

June 22, 2007

AT&T CORP., PLAINTIFF
v.
CPB INTERNATIONAL, INC., AND JOHN DOES (1-10), DEFENDANTS
CPB INTERNATIONAL, INC., THIRD PARTY PLAINTIFF
v.
DON'T WORRY, INC. AND GORDON MELTZER, INDIVIDUALLY, THIRD PARTY DEFENDANTS



The opinion of the court was delivered by: Judge Jones

Magistrate Judge Blewitt

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 29, 2007, Magistrate Judge Blewitt issued a Report and Recommendation (doc. 81) recommending that this Court deny Third Party Defendants Don't Worry Inc. ("DWI") and Gordon Meltzer's ("Meltzer") motion for summary judgment. (Rec. Doc. 59). Objections to the Report and Recommendation were received on June 15, 2007 from DWI and Meltzer. (Rec. Doc.83). Accordingly, this matter is ripe for our review.

PROCEDURAL HISTORY

This breach of contract and unjust enrichment action was commenced on February 28, 2005 by Plaintiff AT&T Corp. ("AT&T") against Defendants CPB International Inc. ("CPB") and John Does (1-10). (Rec. Doc. 1). The Plaintiff invoked the diversity jurisdiction of the Court pursuant to 28 U.S.C. § 1332(a). AT&T and CPB consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and we entered an Order reassigning this case to Magistrate Judge Blewitt for pre-trial and trial purposes. (Rec. Doc. 13).

CPB was served with the complaint on or about May 6, 2005. On May 25, 2005 CPB filed a Motion for More Definite Statement pursuant to Fed. R. Civ. P. 12(e). (Rec. Doc. 6). On July 29, 2005, we issued an Order denying CPB's Motion. (Rec. Doc. 16).*fn1 On September 2, 2005, CPB filed an answer. (Rec. Doc. 18).

On September 8, 2005, CPB filed a third party complaint against DWI and Meltzer, alleging that CPB had retained DWI and Meltzer to perform consulting services regarding the installation of CPB's telecommunications and computer networks. (Rec. Doc. 19). The third party complaint contains three counts against both DWI and Meltzer, namely breach of implied contract (Count I), negligent misrepresentation (Count II), and negligence (Count III). After being served, DWI and Meltzer jointly filed a Motion to Dismiss the third party complaint. (Rec. Doc. 25). On March 21, 2006, Magisrate Judge Blewitt issued a Memorandum and Order denying DWI and Meltzer's motion to dismiss.

On March 31, 2006, DWI and Meltzer filed an answer and affirmative defenses to the third party complaint. (Rec. Doc. 35). On May 22, 2006, DWI and Meltzer indicated that they did not concur in the jurisdiction of Magistrate Judge Blewitt to handle all phases of the case, and requested a District Judge to handle the trial of the case. (Rec. Doc. 45). We entered an Order on May 24, 2006, reassigning the case to Magistrate Judge Blewitt for pre-trial purposes only.

Following the close of discovery, DWI and Meltzer filed a Motion for Summary Judgment. (Rec. Doc. 59). On May 29, 2007, Magistrate Judge Blewitt issued the instant Report and Recommendation (doc. 81), recommending that the Motion be denied in its entirety. Objections have been filed by DWI and Meltzer. This matter is therefore ripe for our review.

FACTUAL BACKGROUND

The following brief factual background is a summary of the facts which Magistrate Judge Blewitt found to be undisputed. See Rec. Doc. 81 at pp. 8-9.

In or about December, 2002 CPB engaged DWI and Meltzer for consulting services related to preparing, setting up and installing CPB's telecommunications and computer networks. DWI is a New York corporation that specializes in computer networking and installation, computer security and forensic computer analysis. Meltzer is an employee and corporate officer of DWI. CPB retained DWI to re-install their computer network after CPB's move to a new location in Bartonsville, Pennsylvania.

Meltzer, through another individual named Jim McGurran ("McGurran"), furnished a written quote to CPB's Controller on December 12, 2002 for the installation of 29 voice and data lines, hardware and labor associated with the installation of telecommunications and computer networking at CPB's new Bartonsville facility. At no time did Meltzer, McGurran or DWI furnish a written contract on DWI letterhead for CPB's review or approval. At all times prior to ...


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