United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [#43]
PAGE HOOD CHIEF JUDGE.
10, 2016, Plaintiff PAT GD JV LLC (“PAT”) filed a
Complaint against Defendants Brunswick Insurance Agency, Inc.
(“Brunswick”) and Phenix Services, Inc.
(“Phenix”) alleging Breach of Contract (Count I),
Unjust Enrichment (Count II), and violation of the Michigan
Conversion Statute, MCL § 600.2919a (Count III). (Doc #
1) PAT filed an Amended Complaint on June 13, 2017 and added
First Mountain Bancorp. (“First Mountain”) and
Gerald Dinkins Sr. (“Dinkins”) as defendants.
(Doc # 16) On May 11, 2017, the Court entered a Stipulated
Order and dismissed Brunswick as a defendant. (Doc # 14) On
September 21, 2018, Default Judgment was entered against
First Mountain and Dinkins. (Doc # 35; Doc # 36) Phenix is
the only remaining defendant in this case.
20, 2019, PAT filed a Motion for Summary Judgment. (Doc # 43)
Phenix has not responded to Plaintiff's Motion. This
Motion is currently before the Court and a hearing was held
on July 31, 2019.
uncontested facts are as follows. On an unidentified date, PAT
entered into a contract with the U.S. Army Corps of Engineers
(“USACE”)-contract W912ER-14 for Phase Two
Solicitation W912ER-13-R-0050, Piers and Dredging, located in
Umm Qasr, Iraq. (Doc # 1, Pg ID 3) PAT subsequently
contracted with Brunswick in order to obtain surety bonds for
a project and transferred $610, 000 to Brunswick on May 8,
2014 for two surety bonds. (Id.) PAT claims that
Brunswick involved Phenix in the bond transactions.
the two surety bonds issued by Brunswick through First
Mountain were not accepted by the USACE. (Id.) As a
result, on June 24, 2014, PAT sought a refund of the $610,
000 from Brunswick. (Id.) On August 24, 2014,
Brunswick only refunded PAT $137, 250, which allegedly left
an outstanding balance of $472, 250. (Id. at 9.) PAT
alleges that despite numerous requests to obtain the
remaining $472, 250, Defendants, including Phenix, have
refused to issue PAT the money it is allegedly owed.
(Id. at 3.)
requests $472, 250 for its Breach of Contract and Unjust
Enrichment claims. Consequently, PAT seeks $1, 416, 750 for
Defendants' alleged violation of the Michigan Conversion
Statute, MCL § 600.2919a, since plaintiffs who succeed
with claims brought forward under the statute are entitled to
three times the amount of actual damages. See MCL
§ 600.2919a. PAT requests a total amount of $1, 416, 750
with applicable costs, interest, and reasonable
attorney's fees. As Phenix is the only remaining
Defendant, PAT is requesting the total amount of damages from
Standard of Review
56(a) of the Federal Rules of Civil Procedures provides that
the court “shall grant summary judgment 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 presence of factual
disputes will preclude granting of summary judgment only if
the disputes are genuine and concern material facts.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute about a material fact is
“genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id. Although the court must
view admissible evidence in the light most favorable to the
nonmoving party, where “the moving party has carried
its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). Summary judgment must be entered against a party who
fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on
which that party will bear the burden of proof at trial. In
such a situation, there can be “no genuine issue as to
any material fact, ” since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.
Celotex Corp., 477 U.S. at 322-23. A court must look
to the substantive law to identify which facts are material.
Anderson, 477 U.S. at 248.
Plaintiff's Motion for Summary Judgment
not expressed by PAT explicitly, PAT implies that it has met
its burden for its Motion for Summary Judgment due to
Phenix's unresponsiveness, which PAT argues demonstrates
that there are no genuine issues of material fact. The Court
is inclined to agree with such a proposition. According to
the uncontested facts, the Court finds that PAT prevails as
to one of the three counts.
Breach of Contract
state a claim for breach of contract in Michigan, a plaintiff
must allege: (1) the existence of a valid contract; (2) the
terms of the contract; (3) breach of the contract; and (4) an
injury caused by the breach. See Webster v. Edward D.
Jones & Co., L.P., 197 F.3d 815, 819 (6th Cir.
1999). In Michigan, the paramount goal when interpreting a
contract is to give effect to the intent of the contracting
parties. Old Kent Bank v. Sobczak, 243 Mich.App. 57,
63-64 (2000). The court is to read the agreement as a whole
and attempt to apply the plain language of the contract
itself. Id. If the intent is clear from the language
of the contract itself, there is no place for further
construction or interpretation of the agreement. Farm
Bureau Mut. Ins. Co. v. Nikkel, 460 Mich. 558, 566
(1999). A contract provision that is clear and unambiguous
must be “taken and understood in [its] plain, ordinary,
and popular sense.” Mich. Mut. Ins. Co. v.
Dowell, 204 Mich.App. 81, 87 (1994). “Express
provisions for termination ...