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See, Inc. v. See Concept SAS

United States District Court, E.D. Michigan, Southern Division

February 28, 2017

SEE, INC., a Michigan corporation, Plaintiff,
v.
SEE CONCEPT SAS, a French company, and AMEICO, INC., a Connecticut corporation, Defendants.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE [22]

          Nancy G. Edmunds United States District Judge

         This case involves two eyeglass sellers that cannot see eye-to-eye regarding their settlement obligations. Plaintiff SEE, Inc. alleges that Defendant See Concept SAS breached the terms of their settlement, and Defendant contests that claim. The matter now before the Court is Defendant's motion for summary judgment. For the reasons below, Defendant's motion is DENIED without prejudice to summary judgment on other grounds.

         I. Background

         The settlement at issue resulted from a lawsuit that Plaintiff commenced in January 2015. In that suit, which was also before this Court, Plaintiff claimed that Defendant was selling eyeglasses under a SEE CONCEPT trademark that infringed Plaintiff's SEE marks. See 2:15-cv-10047-NGE-RSW. Plaintiff specifically alleged trademark infringement, unfair competition, and a violation of the Michigan Consumer Protection Act. All of those claims were then resolved in October 2015 when the parties agreed to settle the case. The parties stipulated to an order of dismissal, which the Court entered later that month.

         As to the settlement agreement itself, the parties have not submitted a copy, so the Court must rely on the parties' claims regarding its terms According to the parties, the agreement requires Defendant to "[d]iscontinue all use" of its SEE CONCEPT mark in the United States after January 31, 2016 and in the rest of North America after April 30, 2016. (Dkt. 15-1, at 1.) The agreement further provides that a breaching party has ten days to cure its breach after it receives a notice of breach. (Dkt. 6 at ¶ 35; Dkt. 22, at 10.)

         Seven months after the parties memorialized their settlement, Plaintiff sent Defendant a letter on May 31, 2016, claiming that Defendant was in breach (the "Notice of Breach"). This Notice of Breach specifically alleged that: (1) Defendant's website was still available to users in North America and was replete with the SEE CONCEPT mark; and (2) Defendant continued to use the SEE CONCEPT mark on numerous social media websites. (Dkt. 15-1, at 1.) The Notice of Breach also outlined steps Defendant could take to cure what Plaintiff termed "material breaches of the Settlement Agreement." (Id. at 2.) These steps included: (1) discontinuing the use of SEE CONCEPT in North America; (2) removing SEE CONCEPT from all websites and social media sites that can be accessed in North America; (3) confirming that it was no longer selling products bearing the SEE CONCEPT mark in North America; and (4) informing Plaintiff of the new name Defendant planned to use. (Id.) The Notice of Breach further emphasized that Plaintiff would seek to enforce the settlement agreement if Defendant did not comply. (Id. at 1.)

         Seven days later, on June 7, 2016, Defendant's principal, Charles Brun, initiated a sequence of email correspondence with Plaintiff's principal, Richard Golden. (Dkt. 15-2.) He insisted that Defendant had complied with all of Plaintiff's requests: "[W]e confirm [to] you that we are totally respecting the settlement agreement and all the mentioned dates and requests." (Id. at 25.) Brun elaborated: "Since the 31st of January 2016, we have blocked all the online sales to the U.S. and since the 30th of April 2016, we have blocked all the online sales to Canada and Mexico. . . . Concerning the social networks and especially our Facebook page, this is a worldwide page and we also totally avoid [talking] about the US, Canada or Mexico[.]" (Id.)

         Three days after that, on June 10, Golden replied, contesting Brun's claim that Defendant was in "full compliance" with the settlement agreement. (Id. at 24.) Golden stated that Plaintiff had evidence of Defendant's informing customers in North America that they could buy Defendant's glasses online as recently as June 5, 2016. (Id.) He added that Plaintiff would offer Defendant a "solution" outlining steps that must be taken immediately to avoid enforcement of the agreement. (Id.) Furthermore, Golden reiterated that Plaintiff would file a lawsuit in this Court if Defendant did not comply.

         Pursuant to that email, Plaintiff's counsel sent a letter to Defendant's counsel on June 23, which restated verbatim the demands that Plaintiff made in the Notice of Breach. (Dkt. 18-4, at 3.) This letter added that if Defendant did not comply with Plaintiff's demands within ten days, Plaintiff would file an action to enforce the settlement agreement. (Id.)

         Meanwhile, direct correspondence between Brun and Golden continued, although it was decidedly one-sided for a while. Beginning on June 14, Brun sent a series of emails that went unanswered for three weeks. These emails informed Golden of the trademark Defendant would use in the future, continued to maintain that Defendant had not breached the settlement agreement, and requested further clarification regarding the alleged breaches. (Dkt. 15-2, at 15-21.) Brun never mentioned the June 23 letter.

         Finally, on July 5, Golden acknowledged receiving Brun's messages. Three days later, on July 8, Golden presented a "solution" to "resolve the matter amicably." (Id. at 12.) He did not mention the June 23 letter, and the proposed "solution" diverged slightly from the demands issued in the Notice of Breach and the June 23 letter. Specifically, Golden proposed that Defendant would need to agree to the following within seven days to resolve the matter: (1) cease any behavior characterized as "passive selling"; (2) block North American access to Defendant's website, as well as any other websites containing the mark SEE CONCEPT that are owned or controlled by Defendant; (3) block North America from accessing all social media sites controlled by Defendant and containing the mark SEE CONCEPT; and (4) confirm that Defendant was no longer selling any SEE CONCEPT branded goods to anyone in North America. (Id.) Seven days later, Brun replied, claiming that Defendant had fully complied with Defendant's proposal. (Id. at 11-12.)

         The parties next exchanged a series of emails in which they disputed whether Defendant had actually ceased selling its products in the United States in accordance with the settlement agreement. (Id. at 1-10.) That argument never resolved, so Plaintiff filed this lawsuit on September 9, 2016, alleging breach of contract and reasserting the claims from the parties' previous lawsuit. Then, on November 23, 2016, Defendant filed a motion to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6). (Dkt. 15.) Defendant's motion argued that Plaintiff's claims should be dismissed either because (1) Defendant cured the alleged breaches within the ten day cure period or (2) the parties agreed to waive the ten day cure period. In support, Defendant submitted copies of the Notice of Breach, the email correspondence between Brun and Golden, and an affidavit from Brun. Plaintiff responded on December 19, 2016 with exhibits of its own, including, but not limited to, a declaration from Golden and a copy of the June 23 letter from Plaintiff. On January 5, 2017, given the nature of Defendant's arguments and the parties' submissions, the Court converted Defendant's motion to dismiss into one for summary judgment. (Dkt. 21.) The Court further ordered supplemental briefing related to whether Defendant was entitled to summary judgment on the grounds alleged in Defendant's motion to dismiss, and it instructed the parties to submit all relevant evidence. (Id.) Now, having received the parties' supplemental briefing (neither party submitted additional evidence), the Court issues this Opinion and Order.

         II. Applicable Standard

         Summary judgment under Federal Rule of Civil Procedure 56(a) is proper when 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.” Id. When reviewing the record, “the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (internal citation omitted). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the ...


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