EDUARDO C. ROBRENO, J.
I. INTRODUCTION ......................................... 2
II. FACTS & PROCEDURAL POSTURE ........................... 3
III. APPLICABLE LEGAL STANDARDS ........................... 8
IV. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S FIRST AMENDED COMPLAINT .............................. 9
A. No Genuine Issue of Material Fact Exists as to the Validity or Terms of the Parties’ Contracts .......... 9
1. Contract Formation: Eighty-Six Valid Contracts Exist 10
2. Contract Terms ...................................... 12
a. Price Term ..................................... 12
b. Terms on Reverse Side of Contract, Including Paragraph 15 Authority ......................... 13
c. Additional Terms on Reverse Side ............... 15
B. No Genuine Issue of Material Fact Exists as to Defendants’ Breach of Their Payment Obligation Under the Contracts ....................................... 17
C. Plaintiff’s Damages and Defendants’ Alleged Issues of Material Fact Regarding Credits-Owed and Plaintiff’s Breach .............................................. 21
1. Alleged Credits-Owed Issue .......................... 21
2. Plaintiff’s Alleged Breach .......................... 22
V. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON DEFENDANTS’ COUNTERCLAIM ........................................ 25
VI. CONCLUSION .......................................... 30
Plaintiff, Yellowbook, Inc., formerly known as Yellow Book Sales and Distribution Company, Inc. (“Plaintiff”), brings this action against Defendants, Always in Service, Inc., doing business as 24/7 Emergency Locksmith (“AIS”), Guy Halperin (“Halperin”), and Yuvall Attoun (“Attoun, ” and AIS, Halperin and Attoun, collectively, “Defendants”). Plaintiff alleges, generally, that Defendants breached the parties’ written contractual agreements for directory advertising services, and seeks recovery of the unpaid balance of $997, 842.61, together with interest and attorney’s fees. Pl.’s First Am. Compl., ECF No. 24.
Plaintiff’s First Amended Complaint (“Complaint”) pleads the following: Count I Breach of Contract against Defendant AIS; Counts II-III Breach of Contract against Defendants Halperin and Attoun, respectively; Count IV Account Stated; and Count VI pleads an alternative theory of Unjust Enrichment. Id. at 9-19. In response, Defendants deny the existence of any contracts between the parties and thus deny liability for any unpaid balance. Defendants have also asserted a counterclaim against Plaintiff, alleging Plaintiff’s breach of certain “oral” contracts. Defs.’ Answer & Countercl., ECF No. 27.
Pending before the Court are Plaintiff’s motions for summary judgment. Pl.’s Mot. Summ. J. on Plaintiff’s First Am. Compl., ECF No. 49; Plaintiff’s Mot. Summ. J. on Defs.’ Countercl., ECF No. 50. Because Defendants fail to meet their burden of production at this stage of the proceeding, the Court will grant Plaintiff’s motions for summary judgment.
II. FACTS & PROCEDURAL POSTURE
According to Plaintiff’s Complaint, the parties entered into a series of written contractual agreements with Plaintiff, contracting for advertising and related services to market and promote Defendants’ business, which included locksmith and security repair and installation services, and the repair, replacement, removal, installation, or alteration of windows, doors and garage doors. The Complaint alleges that, beginning in July 2009, Attoun personally, and on behalf of AIS, entered into multiple written contractual agreements with Plaintiff for several 2010 through 2011 Yellowbook publications. Similarly, beginning in February 2010, Halperin personally, and on behalf of AIS, entered into multiple written contractual agreements with Plaintiff for several 2010 through 2012 Yellowbook publications.
Relevant here, Plaintiff alleges that AIS entered into a total of eighty-six two-sided contracts, for which Plaintiff alleges a total balance of $997, 842.61 is due and outstanding. Of these eighty-six contracts, Plaintiff alleges that Attoun also personally bound himself for thirty-two contracts, for which Plaintiff alleges a $243, 519.50 balance remains outstanding; similarly, Plaintiff alleges that Halperin also personally bound himself for fifty-four contracts, for which Plaintiff alleges a $754, 323.11 balance remains outstanding. Pl.’s First Am. Compl. 8-9.
The parties attempted but were unable to resolve their conflicts informally. Thus, on July 18, 2011, Plaintiff initiated this breach-of-contract action. Pl.’s Compl., ECF No. 1. Defendants Halperin and Attoun filed a Motion to Dismiss (ECF No. 12), and Defendant AIS filed an Answer and Counterclaim. Defs.’ Answer & Countercl., ECF No. 13. Following a hearing on the motion to dismiss, held on November 7, 2011, the Court issued a scheduling order granting Plaintiff leave to file an amended complaint by November 17, 2011. Order, Nov. 7, 2011, ECF No. 22. On November 17, 2011, Plaintiff filed its First Amended Complaint. Pl.’s First Am. Compl.
Initially, and without reason other than neglect for their tardiness, Defendants failed to appear, plead, or otherwise defend. Accordingly, default was entered against them on December 21, 2011. On December 22, 2011, Defendants filed an Answer to Plaintiff’s First Amended Complaint and Counterclaim.Defs.’ Answer & Countercl., ECF No. 27. Thereafter, on January 11, 2012, preferring to decide the case on the merits and given the lesser sanctions available, the Court granted Defendants’ Motion to Set Aside Default (ECF No. 26), and instead sanctioned Defendants $500 to compensate Plaintiff for having requested the entry of default. Order, Jan. 11, 2012, ECF No. 33.
On June 1, 2012, the Court conducted a discovery conference. At the conference, it became clear that considerable confusion existed regarding what claims Plaintiff was asserting under what contracts, and what defenses to those claims Defendants were raising. To streamline the litigation and join the issues, the Court ordered Plaintiff to file motions for summary judgment on both its First Amended Complaint and Defendants’ Counterclaim. Order, June 1, 2012, ECF No. 47. Additionally, the Court ordered Plaintiff to produce, among other discovery, records identifying any credits posted to Defendants’ accounts for mistakes, complaints, or similar communications recorded in call logs, emails, or similar correspondence between Plaintiff and Defendants. Id. The Court further instructed Defendants that if additional discovery was needed to respond to Plaintiff’s motions for summary judgment, Defendants could make such a demand under Rule 56(d) of the Federal Rules of Civil Procedure. Hr’g Tr. 39:4-25, June 1, 2012, ECF No. 58.
In accordance with the Court’s order, on June 18, 2012, Plaintiff filed the instant Motion for Summary Judgment on Plaintiff’s First Amended Complaint (ECF No. 49) and Motion for Summary Judgment on Defendants’ Counterclaim (ECF No. 50). Defendants filed a Response in Opposition to Plaintiff’s Motion for Summary Judgment on Plaintiff’s First Amended Complaint (ECF No. 54) and a Response in Opposition to Plaintiff’s Motion for Summary Judgment on Defendants’ Counterclaim (ECF No. 55). Defendants did not file a Rule 56(d) Affidavit. Hr’g Tr. 14:24-15:15, July 2, 2013, ECF No. 70. Plaintiff filed a Reply (ECF No. 60). Defendants filed a Surreply (ECF No. 61). Plaintiff filed a Response in Opposition to Defendants’ Surreply (ECF No. 62).
On July 2, 2013, the Court held a hearing regarding Plaintiff’s motions. During the hearing, Defendants represented to the Court that by responding to Plaintiff’s motions for summary judgment and not including a Rule 56(d) Affidavit, they had declined further discovery and instead wished to proceed to the merits of the motions, based on their submissions and the evidence before the Court. Hr’g Tr. 16:11-17:16, July 2, 2013 (representing to the Court, “We oppose on the merits.”).
Following the hearing, at the Court’s recommendation the parties met with a Magistrate Judge to conduct a settlement conference but were unable to reach an agreement. Plaintiff’s motions are thus now ripe for disposition.
III. APPLICABLE LEGAL STANDARDS
Summary judgment is appropriate if there are no genuine disputes as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact.”
Am. Eagle Outfitters v. Lyle & Scott Ltd. , 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986)). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson , 477 U.S. at 248.
In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. “After making all reasonable inferences in the nonmoving party’s favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.”
Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must “set forth specific facts showing that there is a genuine issue for trial.”
Anderson , 477 U.S. at 250. At this stage in the proceedings, a party may not decline to produce evidentiary support and simply rest on generalized denials or averments in the pleadings. Rather, the non-moving party must point to particular evidence of ...