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Travelers Express Co., Inc. v. Checks 54th

August 9, 2010


The opinion of the court was delivered by: Anita B. Brody, J.



In this breach of contract action, Plaintiff Travelers Express Company, Inc. ("Travelers") moves for partial summary judgment against Defendant Diane Rosetsky with respect to Count VI of its Complaint, alleging that Ms. Rosetsky failed to indemnify Travelers for its loss in accordance with a personal guaranty.*fn1 Ms. Rosetsky, acting pro se, filed a Response in opposition to Travelers' motion, to which Travelers replied. Ms. Rosetsky subsequently amended her Response and Travelers filed its second Reply soon thereafter. For the reasons that follow, I will grant Travelers' Partial Motion for Summary Judgment as to Count VI of the Complaint.


Checks 54th, Inc. ("Checks 54th") is a check-cashing business which was incorporated under the laws of Pennsylvania on May 31, 2000. Pl.'s Second Reply, Ex. A, at 17. At its incorporation, Defendant Norman Rosetsky was named the president of Checks 54th and Diane Rosetsky was named secretary/treasurer.*fn3 Def. Ms. Rosetsky's Resp. ¶¶1-2. On June 29, 2000, to facilitate its ongoing operations, Checks 54th entered into a contractual relationship with Travelers in the form of a Master Trust Agreement ("MTA"), wherein Checks 54th agreed to serve as a special agent of Travelers in providing money transfer services. Compl. ¶7. Pursuant to the MTA, Checks 54th was to act as a trustee for Travelers' benefit for all fees received from money transfer services sold by Checks 54th. Id. at ¶8. Checks 54th was required to maintain a separate account in which the fees and other charges were to be deposited and ultimately remitted to Travelers. In connection with the MTA, Travelers required all owners of Checks 54th to sign a Personal Indemnity and Guaranty document ("Guaranty"). Pl.'s Partial Mot. for Summ. J., Ex. A, MTA & Guaranty. At the time, both Norman and Diane Rosetsky were owners of Checks 54th and therefore both were required to sign the Guaranty.*fn4 As guarantors, the Rosetskys, jointly and severally, guaranteed the performance of Checks 54th under the MTA, including the payment of any and all expenses due to Travelers during the course of business and in the event that Checks 54th failed to perform its obligations under the MTA. Id.

On August 2, 2002, Diane Rosetsky was removed as an owner and secretary/treasurer of Checks 54th ab initio by its president, Norman Rosetsky via an amendment to the company's Articles of Incorporation. Pl.'s Second Reply, Ex. A, at 35-37. Neither of the Rosetskys informed Travelers of this change in ownership. Diane Rosetsky claims that Norman Rosetsky was responsible for notifying Travelers of this change, and that she believed Norman would inform Travelers of her removal from Checks 54th's ownership. Def. Ms. Rosetsky's Resp. ¶3; Pl.'s Second Reply, Ex. A, Ms. Rosetsky Dep. 40:5-11, June 7, 2010. Ms Rosetsky admits that she has no evidence that Travelers was ever informed of the change in Checks 54th's ownership. Ms. Rosetsky Dep. 49:13-25.

On September 23, 2008, Travelers sent Checks 54th and the Rosetskys, as guarantors, a statement of account setting forth the funds and charges due to Travelers, totaling $94,820.50. When Travelers did not receive the payment in a timely manner, it commenced this action against Defendants on December 19, 2008.


Summary judgment is appropriate "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)(2); Kornegay v. Cottingham, 120 F.3d 392, 395 (3d Cir. 1997). A fact is "material" if the dispute "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is a "genuine" issue of material fact if the evidence would permit a reasonable jury to find for the nonmoving party. Id. The "mere existence of a scintilla of evidence" is insufficient. Id. at 252.

The party moving for summary judgment bears the initial burden of demonstrating that there are no material facts supporting the non-moving party's legal position. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts"). The nonmoving party cannot rely upon "bare assertions, conclusory allegations or suspicions" to support its claim. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Instead, the party opposing summary judgment must go beyond the pleadings and present evidence, through affidavits, depositions, or admissions on file, to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. In determining whether the nonmoving party has established each element of its case, the court must draw all reasonable inferences in the nonmoving party's favor. Matsushita, 475 U.S. at 587.


In Count VI of the Complaint, Travelers alleges that the Rosetskys, as guarantors, are each individually liable for the unremitted funds and that their failure to remit the funds is a breach of the Guaranty. Ms. Rosetsky's principal argument in opposition to Travelers' Partial Motion for Summary Judgment is that at the instant she was removed as an owner of Checks 54th in 2002, her liability under the Guaranty was extinguished, and therefore she is not responsible for indemnifying Travelers for Checks 54th's failure to remit $94,820.50. Ms. Rosetsky's secondary argument is that Travelers breached the MTA by failing to ensure that Checks 54th was properly insured, thereby absolving Ms. Rosetsky of any liability. Ms. Rosetsky's arguments fail to demonstrate that she is not liable to Travelers. To the contrary, the Guaranty and the MTA clearly show that Ms. Rosetsky is liable for the amount due to Travelers. Therefore, I will grant Travelers' Partial Motion for Summary Judgment.

A. The Terms of the Master Trust Agreement and Guaranty

The MTA stipulates that Minnesota law governs. Compl., Ex. A, MTA at ¶ 27. Under Minnesota law, "[t]he primary goal of contract interpretation is to determine and enforce the intent of the parties. Where there is a written instrument, the intent of the parties is determined from the plain language of the instrument itself." Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004) (internal citations omitted). "[W]hen a contractual provision is clear and unambiguous, courts should not rewrite, modify, or limit its effect by a strained construction." Id. Moreover, "under Minnesota law, unless there is an ambiguity, documents ...

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