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PAT GD JV LLC v. Brunswick Insurance Agency, Inc.

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

August 22, 2019

PAT GD JV LLC, Plaintiff,
v.
BRUNSWICK INSURANCE AGENCY, INC., PHENIX SERVICES, INC., FIRST MOUNTAIN BANCORP., GERALD DINKINS SR., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [#43]

          DENISE PAGE HOOD CHIEF JUDGE.

         I. BACKGROUND

         On May 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.[1]

         On May 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.[2]

         The uncontested facts are as follows.[3] 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. (Id.).

         Ultimately, 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.[4] (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.)

         PAT 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 Phenix.

         II. ANALYSIS

         A. Standard of Review

         Rule 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.

         B. Plaintiff's Motion for Summary Judgment

         Although 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.

         1. Breach of Contract

         To 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 ...


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