United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Chief United States District Judge
Shells & Fish Import and Export Company ("Shells
& Fish") and SFC Logistics, Inc. ("SFC")
bring this diversity action against Process Engineering and
Fabrication, Inc. ("Process Engineering"), seeking
recovery for state-law contract and fraud claims. The case is
presently before the court on plaintiffs' motion for
summary judgment. The court notified Process Engineering as
required by Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), but Process Engineering has not filed a response
and the time for doing so has passed. For the reasons set
forth below, the motion will be granted.
Shells & Fish is a Florida corporation engaged in the
wholesale seafood business. Plaintiff SFC is an affiliate of
Shells & Fish. Defendant Process Engineering is a
Virginia corporation in the business of selling and
installing fish packing and refrigeration systems.
within the first half of 2012, Process Engineering agreed to
deliver and install fish packing and refrigeration units in
an Ecuadorian facility owned by SFC's parent company.
Def.'s Resp. to Pis.' Interrogs., Dkt. 47-1; Dec. of
Carlos Omana, Dkt. 47-3. Representatives from Process
Engineering negotiated the contract with Carlos Omana
("Omana"). Dec. of Carlos Omana, Dkt. 47-3. At the
time, Omana was an employee of Shells & Fish.
Id. All invoices for payment were sent from Process
Engineering to SFC. Invoice Nos. 3864-1, 3864-2, Dkt. 16-1.
Process Engineering received payment of $50, 000 from Shells
& Fish and $361, 568.38 from SFC. Def.'s Resp. to
Pis.' Interrogs., Dkt. 47-1; Dec. of Carlos Omana, Dkt.
47-3. This sum amounted to ninety percent of the total
purchase price. See Custom Spiral Proposal 3864A for Shells
& Fish, Dkt. 1-1.
through a sworn declaration, answers to plaintiffs'
interrogatories, and emails between Process Engineering
representatives and Omana, plaintiffs have demonstrated the
following: Process Engineering represented to Shells &
Fish that the refrigeration unit had been ordered and would
be shipped in January of 2013. See Email from Jimmy Sokora to
Carlos Omana (January 24, 2012), Dkt. 16-1. After shipping
and installation delays, representatives from Process
Engineering and Omana met in person. Dec. of Carlos Omana,
Dkt. 47-3. At this meeting, a Process Engineering
representative made a phone call, in the presence of Omana,
purporting to place an order for the refrigeration unit. Li
The alleged recipient of the order later confirmed that it
had not been contacted by Process Engineering regarding such
an order. Id. To date, only the fish packing
equipment and a portion of the refrigeration unit has been
delivered and installed. Def.'s Resp. to Pis.'
Interrogs., Dkt. 47-1.
award of summary judgment is appropriate "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). In determining whether a
genuine dispute of material fact exists, the court must
"view the facts and all justifiable inferences arising
therefrom in the light most favorable to the nonmoving
party." Libertarian Party of Va. v. Judd, 718
F.3d 309, 313 (4th Cir. 2013). To withstand a summary
judgment motion, the nonmoving party must produce sufficient
evidence from which a reasonable jury could return a verdict
in its favor. Anderson v. Liberty Lobby, Inc.. 477
U.S. 242, 248 (1986). "When the non-movant fails to
respond to the motion, the court should enter summary
judgment for the movant where judgment as a matter of law is
warranted." CIT Small Bus. Lending Corp. v.
Kamguia. No. 4:10CV00021, 2011 WL 182116, at *2 (W.D.
Va. Jan. 20, 2011) (citing Fed.R.Civ.P. 56(e)(2) and
Custer v. Pan American Life Ins. Co.. 12 F.3d 410,
416 (4th Cir. 1993)).
Breach of Contract
& Fish and SFC have asked for summary judgment on the
breach of contract claim, arguing that Process Engineering
failed to complete the delivery and installation of the
refrigeration unit despite being paid ninety percent of the
contracted purchase price. Under Virginia law, the elements
of a cause of action for breach of contract are: "(1) a
legally enforceable obligation of a defendant to a plaintiff;
(2) the defendant's violation or breach of that
obligation; and (3) injury or damage to the plaintiff caused
by the breach of obligation." Filak v. George,
267 Va. 612, 619 (2004). Here, there is no dispute that Process
Engineering agreed to deliver and install complete
refrigeration and fish packing units or that Process
Engineering failed to deliver and install a portion of the
refrigeration unit. See Def.'s Resp. to Pis.'
Interrogs., Dkt. 47-1. Shells & Fish and SFC have
produced evidence that Omana, an employee of Shells &
Fish, negotiated the contract and that invoices were billed
to SFC. Dec. of Carlos Omana, Dkt. 47-3; Invoice Nos. 3864-1,
3864-2, Dkt. 47-1. Process Engineering has failed to present
any evidence in rebuttal. Therefore, the court believes that
plaintiffs have established a legally enforceable obligation
of the defendant and a breach of that obligation.
it is undisputed that SFC and Shells & Fish paid $ 411,
568.38, ninety percent of the contract price, for the
delivery and installation of fish packing and refrigeration
units. Def.'s Resp. to Pis.' Interrogs., Dkt. 47-1.
Moreover, the documents sent on April 30, 2012 to Omana from
Process Engineering suggest that the total cost of the
refrigeration unit was $150, 000. See Custom Spiral Proposal
3864A for Shells & Fish, Dkt. 1-1. Because part of the
refrigeration unit was not delivered or installed, yet
plaintiffs have paid for ninety percent of the purchase price
of both units, the court determines that plaintiffs have
established injury. The court will thus grant plaintiffs'
motion for summary judgment as to the breach of contract
& Fish and SFC also ask the court to grant
plaintiffs' motion for summary judgment on the fraud in
the inducement claim. In order to prevail on a fraud claim, a
plaintiff must demonstrate the following: (1) a false
representation, (2) of material fact, (3) made intentionally
and knowingly, (4) with intent to mislead, (5) reliance by
the party misled, and (6) resulting damage to the party
misled. Meridian Title Ins. Co. v. Lilly Homes,
Inc., 735 F.Supp. 182, 185 (E.D. Va. 1990) (quoting
Winn v. Aleda Construction Co., 227 Va. 304, 308
(1984)). "[I]t is not necessary that fraud be proved by
direct and positive ...