The opinion of the court was delivered by: Judge Cathy Bissoon
Pending before the Court are Defendant Shearer‟s Foods, Inc.‟s Motion for Summary Judgment (Doc. 73) and Defendant Shearer‟s Foods, Inc.‟s Motion to Strike the Affidavit of Ron Razete (Doc. 85). For the reasons stated herein, the Court will deny Defendant‟s motion to strike and grant Defendant‟s motion for summary judgment.
Ron and Marci Razete formed Plaintiff Marci‟s Fun Food LLC in 2001, and began making kettle corn. Def.‟s Concise Statement of Material Facts ("Def.‟s Facts") ¶ 1 (Doc. 74); Pl.‟s Responsive and Supplemental Concise Statement of Facts ("Pl.‟s Facts") ¶ 1 (Doc. 80); see also Ron Razete Dep. 18:22-19:24 (Doc. 76-1 at 6). Plaintiff sold kettle corn under the trademark "Marci‟s Old Fashioned Kettle Korn" in New York, Ohio, Indiana, Pennsylvania and West Virginia. See Ron Razete Dep. 82:8-15 (Doc. 76-1 at 22).
In 2006, Defendant Shearer‟s Foods, Inc. purchased Poppee‟s Popcorn, which gave Defendant the ability to manufacture popcorn products. See Kohman Dep. 5:6-25, 7:4-17 (Doc. 76-3 at 3). In the fall of 2006, Todd Brahler of Defendant contacted Mr. Razete and offered to produce kettle corn for Plaintiff. Ron Razete Dep. 112:16-113:14 (Doc. 76-1 at 29-30).
On April 17, 2007, Plaintiff and Defendant entered into a Production Agreement, in which Defendant agreed to produce kettle corn for Plaintiff. Production Agreement (Doc. 1-2).*fn1 In the Production Agreement, Plaintiff granted Defendant "a royalty-free license to the trademarks and to all patents, processes, formulas, technology and know-how (the "Processes‟) necessary to enable, and for the sole purpose of enabling, [Defendant] to meet its obligations under this Agreement, such license to be co-extensive with the Term." Production Agreement ¶ 7.a (Doc. 1-2 at 3).
In October 2007, Defendant sold its popcorn business, which became Poppee‟s Popcorn, Inc. ("Poppee‟s"). Kohman Dep. 9:21-23 (Doc. 76-3 at 4). Plaintiff continued to purchase kettle corn from Poppee‟s until April 2009. See Pl.‟s Facts ¶ 70 (Doc. 80); Def.‟s Facts ¶ 70 (Doc. 74).
Defendant formally terminated the Production Agreement in February 2008 due to Plaintiff‟s failure to satisfy minimum requirements under the Production Agreement. Kohman Dep. 30:11 -- 31:5 (Doc. 76-3 at 7).
Plaintiff brought this action against Defendant Shearer‟s Foods, Inc. ("Shearer‟s" or "Defendant") and Poppee‟s, asserting various causes of action related to the failed business relationships between Plaintiff and Shearer‟s and between Plaintiff and Poppee‟s. See Compl. (Doc. 1). On motions to dismiss, this Court dismissed certain counts of Plaintiff‟s complaint,Memorandum & Order, Oct. 8, 2010 (Doc. 45), and Plaintiff filed an amended complaint (Doc. 49).
Plaintiff‟s remaining claims are: (1) Misappropriation (Count I); (2) Intentional Misrepresentation, Fraud, Deceit (Count IV); (3) Tortious Interference With a Business Relationship (Count VI); (4) "Passing Off" Under the Lanham Act (Count VII); (5) False Advertising Under the Lanham Act (Count VIII); (6) Violation and/or Usurpation of Common Law Trademark Under the Lanham Act (Count IX); (7) Dilution by Blurring and/or Dilution by Tarnishment Under the Lanham Act (Count X); (8) Unfair Competition/Unjust Enrichment (Count XI); and (9) Violation of Pennsylvania Trade Secrets Act (Count XII). See Am. Compl. (Doc. 49).
Defendant Shearer‟s filed a motion for summary judgment (Doc. 73) on all remaining claims against it. Plaintiff and Poppee‟s reached a settlement, and all claims against Poppee‟s were dismissed with prejudice. Order, July 6, 2011 (Doc. 78). After Plaintiff filed its response (Doc. 79) to the motion for summary judgment, Defendant filed a motion to strike (Doc. 84) the Affidavit of Ron Razete that was included in Plaintiff‟s summary judgment appendix. ANALYSIS
To determine what evidence to consider on summary judgment, the Court will first resolve Defendant‟s motion to strike. Defendant asserts that the Affidavit of Ron Razete (Doc. 82-22) contradicts Mr. Razete‟s deposition testimony, because the facts identified in Mr. Razete‟s affidavit were not identified by Mr. Razete during his deposition when he was asked to identify the factual basis for various claims asserted by Plaintiff. Def.‟s Br. in Support of Mot. to Strike (Doc. 85). But Mr. Razete‟s testimony regarding his belief as to which facts support Plaintiff‟s legal claims does not limit which facts Plaintiff‟s attorney may rely upon in making legal arguments, and the facts identified in Mr. Razete‟s affidavit do not contradict any of the facts identified by Mr. Razete during his deposition. The Court, therefore, will deny Defendant‟s motion to strike and will consider Mr. Razete‟s affidavit as part of the summary judgment record.
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial responsibility of identifying portions of the summary judgment record which it believes demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may discharge this burden by showing that there is an absence of evidence to support the nonmoving party‟s case. Id. at 325. To survive summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party must show that there is a genuine dispute as to a material fact. See id. at 587; Fed. R. Civ. P. 56(c).
A.Misappropriation (Counts I and XII)
Plaintiff asserts the same cause of action for misappropriation of trade secrets under Pennsylvania law in Counts I and XII of the Amended Complaint.*fn2 For purposes of Defendant‟ssummary judgment motion, Defendant does not dispute that Plaintiff‟s recipe, production process, and sales strategies constitute trade secrets. Def.‟s Br. 6 n.6 (Doc. 75). Defendant contends that Plaintiff cannot establish that Defendant misappropriated any of those trade secrets. Id. at 6-9.
Under the Pennsylvania Uniform Trade Secrets Act ("PUTSA"), 12 Pa. C.S. § 5301, et seq., "misappropriation" includes: "disclosure or use of a trade secret of another without express or implied consent by a person who . . . at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was . . . acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use." 12 Pa. C.S. § 5302.*fn3 Plaintiff‟s theory of misappropriation appears to be that Defendant was obligated to keep Plaintiff‟s trade secrets confidential, and that Defendant‟s sale of its popcorn business constituted a disclosure of those trade secrets without Plaintiff‟s consent. See Pl.‟s Br. 13-16.
Plaintiff, however, identifies no evidence that Defendant made a disclosure "without express or implied consent." 12 Pa. C.S. § 5302. Plaintiff identifies no evidence that Plaintiff objected to Defendant‟s sale of its popcorn business. See Pl.‟s Br. 13-16. Indeed, after Defendant sold its popcorn business in October 2007, Plaintiff continued to purchase kettle corn from Poppee‟s until April 2009. See Pl.‟s Facts ¶ 70 (Doc. 80); Def.‟s Facts ¶ 70 (Doc. 74). Thus, there is no ...