DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this breach of contract case is the motion for summary judgment filed by Plaintiff Key Government Finance, Inc. ("KGF"). (ECF No. 17).
Unless otherwise noted, the facts outlined here are construed in the light most favorable to the non-moving parties, Defendants E3 Enterprises, Inc. ("E3") and Meridian Imaging Solutions, Inc. ("Meridian").
Given the numerous contracts at issue in this action, a brief overview of the parties and their relationships is instructive. KGF is a Colorado corporation that provides financing to government contractors who lease equipment to federal agencies. Under these financing arrangements, KGF purchases the equipment to be leased to the federal government. In exchange, the contractor assigns the lease payments owed by the federal government to KGF, often less some amount the contractor retains for servicing the contract on a regular basis. E3 is a Maryland corporation that sells and leases copier equipment and software to the federal government. Meridian is a Virginia corporation that is in the copier services industry. This dispute arises out of a financing arrangement among KGF, E3, and Meridian in connection with a prime contract to provide copier equipment and services to the United States Army ("the Army").
On November 26, 2007, KGF and E3 entered into a Master Purchase Agreement, which established a blanket financing arrangement between the two entities. (See ECF No. 17-2). In other words, the Master Purchase Agreement established the general parameters of an ongoing financing relationship between E3 and KGF, which could be modified via "Assignment Schedules" as E3 actually received
The Master Purchase Agreement imposes a number of responsibilities on KGF, as the "Buyer," and E3, as the "Seller." Relevant here, E3 is required to "use its best efforts, to obtain annual renewals for the Prime Contract by the renewal date applicable to the Prime Contract ... and shall use its best efforts to obtain the exercise of any end of term purchase options by the User under a Prime Contract prior to the end of the term of such Prime Contract." (Id. at 7).
The Master Purchase Agreement also allocated certain risks associated with the User's non-payment or termination of a Prime Contract. E3 agreed to assume "all risks related to User's nonpayment or abatement of any one or more Lease Payments for any reason other than Non-renewal, Non-appropriation, Termination for Convenience, or a User Default." (ECF No. 17-2, at 6). KGF, in turn, agreed to assume "all risks related to nonpayment of the Lease Payments due to termination of the Prime Contract by User due to Non-renewal, Non-appropriation, Termination for Convenience, or a User Default." (Id. at 8).
Article I of the Master Purchase Agreement includes the following definitions:
(Id. at 2-4). In section 10.07, the Master Purchase Agreement provides that "[t]his Agreement shall be construed in accordance with and governed by the laws of the State of New York; and the exclusive venue for all litigation arising between the parties related to this Agreement, or any Assignment Schedule issued hereunder, shall be in the state or federal courts sitting in the State of New York." (Id. at 14).
On or about September 17, 2008, KGF and E3 executed "Assignment Schedule No. 2" to supplement the Master Purchase Agreement with the specific details of the Prime Army Contract. (ECF No. 17-2, at 35-37). Assignment Schedule No. 2 established that KGF would purchase the equipment to be provided under the Prime Army Contract at a price of $343,047.14, in exchange for assignment of sixty (60) monthly lease payments of $10,223.52, less $3,019.54 to be paid each month to E3 and Meridian. Assignment Schedule No. 2 expressly stated that E3, the Seller, did not "assume[] the risk" of "Non-renewal," "Non-Appropriation," or "Termination for Convenience," as those terms are defined by the Master Purchase Agreement.
On September 22, 2008, KGF, E3, and Meridian entered into a "Servicing Rider" to Assignment Schedule No. 2, whereby KGF appointed E3 and Meridian to function as KGF's agents for servicing all lease payments under the Prime Army Contract. (ECF No. 17-5). The Servicing Rider expressly incorporated the terms, conditions, and definitions of the Master Purchase Agreement, except as specifically amended. (Id. at 2). Paragraph 3, titled "Limitations of Agency," prohibits E3 and Meridian from "[t]ak[ing] any other action or omit[ting] to take any action which may have a material adverse impact on the Serviced Payments." (Id.).
Paragraph 15 of the Servicing Rider includes an indemnification clause as follows:
(Id. at 6-7).
Paragraph 15 goes on to amend the allocation of risk set forth in the Master Purchase Agreement and Assignment Schedule No. 2 as follows:
(Id. at 7).
Sometime in mid-July 2010, the Army notified E3 that it would not be exercising the second option year of the Prime Army Contract (i.e., the period from July 14, 2010 to July 13, 2011). (ECF No. 18-6, at 2). In an email dated August 10, 2010, the Army characterized its decision as being "due to funding issues" because E3 "has acknowledged that they are not listed on the current required BPA for copiers." (Id.).
Over the next several months, E3 contacted the Army on numerous occasions about reconsidering its decision and extending the Prime Army Contract. (ECF No. 18-2, Fernandez Decl. ¶ 11). With KGF's approval, E3 also submitted two proposals for new contracts to provide copier services at Fort Belvoir, one for a six-month period of performance and one for a one-year period of performance. (Id.).
At some point while these two proposals were "on the table" for the Army's review, the Army asked E3 to provide a quote for extending its services through November 30, 2010. (Id.).
Rather than submitting a quote as requested, E3 instead sent a letter on October 4, 2010, that again asked the Army to reconsider its "cancel[ation]" of the Prime Army Contract. (ECF No. 17-6, at 2). In its letter, E3 stated that "[w]e understand that upon cancellation of our contract, it is the Government's intention to replace existing equipment with Sharp equipment (contracting with a large business Sharp Corporation), without having issued a formal solicitation." (Id.). E3 expressed its confusion about how the Army could award a new contract without issuing formal solicitations. E3 also noted that, in a meeting on September 20, 2010, the Army informed E3 that it "could file a claim to recover remaining payments on equipment installed under [the Prime Army Contract]." (Id.). Apparently interpreting this instruction to mean that filing a claim would assure E3's receipt of the remaining three years' worth of payments, E3 communicated its "consternation" that such "payments would be made in conjunction with the issuance of payments for a new contract to Sharp Corporation," meaning that "the U.S. Government is willing to pay double for the same commodities and services." (Id.).
On October 19, 2010, the Army sent a letter denying E3's "request for reconsideration of the cancellation" of the Prime Army Contract. (ECF No. 17-7, at 2). The letter explained that the Army had conducted a competition for copier services at Fort Belvoir in accordance with "the Enterprise Copier Support Ordering Guide." The letter further advised that the Army did not ask E3 to submit a quote because, as of July 2010, E3 was not one of the approved contractors included in this guide (i.e., E3 was "not listed as a BPA holder"). The letter also clarified that any claim submitted by E3 would need to be reviewed, such that it was "premature" for E3 to assume that the Army would pay for the three unexercised option years of the Prime Army Contract. Finally, the letter stated that the copiers provided by E3 pursuant to the Prime Army Contract "are to be picked up immediately" and set forth the procedural guidelines for appealing the Army's final decision. (Id.).
Although E3 admits that it did not submit a quote to the Army to extend the contract through November 30, 2010, Mr. Fernandez avers that E3 "used [its] best efforts to secure contracts and claims on behalf of KGF and Meridian," including by submitting "multiple proposals, requests for reconsideration and claims." (Id. ¶ 11). In particular, Mr. Fernandez represents that E3 did seek and receive a modification of the Prime Army Contract "covering the period to October 30, 2010." (ECF No. 18-2, Fernandez Decl. ¶ 11). E3 ultimately filed a claim with the Army seeking $40,317.64 for the period from July 2010 to October 2010, which the Army paid. (Id. ¶ 12). Mr. Fernandez also represents that "KGF received full payment coverage through October 30, 2010," the entire time its equipment was installed at Fort Belvoir. (Id. ¶ 13).
On November 23, 2010, KGF sent a letter to Meridian stating that "[t]he [Army's] decision not to exercise the option year to continue services under the Prime [Army] Contract in lieu of soliciting new offers for copier services clearly constitutes a `Non-renewal' as defined under the [Master Purchase Agreement] thereby triggering recourse liability against Meridian for payment of the Discounted Balance... in the amount of $244,004.32." (ECF No. 17-8, at 2). To date, Meridian has not complied with KGF's demand for payment
On December 5, 2011, KGF filed a three-count complaint against Defendants, invoking this court's diversity jurisdiction. (ECF No. 1). Count I alleges that Meridian breached the Servicing Rider by refusing to pay the Discounted Balance to KGF. (Id. ¶¶ 22-28). Count II alleges that E3 breached the Master Purchase Agreement and Servicing Rider by "failing to accept the [Army's] offer to extend the [Prime] Army Contract through November 30, 2010." (Id. ¶¶ 29-34). Count III alleges that — pursuant to the indemnification clause in the Servicing Rider — E3 and Meridian are jointly and severally liable for each other's alleged breaches. (Id. ¶¶ 35-38). Meridian and E3 answered the complaint, respectively, on January 12 and April 27, 2012. (ECF Nos. 7, 14). On June 28, KGF moved for summary judgment. (ECF No. 17). Defendants filed a joint opposition (ECF No. 18), and KGF replied (ECF No. 19).
Summary judgment may be entered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008). Summary judgment is inappropriate if any material factual issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (quoting former Fed.R.Civ.P. 56(e)). "A mere scintilla of proof ... will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir.2003). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). At the same time, the facts that are presented must be construed in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Emmett, 532 F.3d at 297.
The parties dispute whether New York or Virginia law applies to KGF's claims. In its motion, KGF assumes that New York law applies based on a contractual choice of law provision. (ECF No. 17-9, at 17).
Notably, KGF does not provide any explanation of its relationship with "Key Equipment Finance" and thus it is unclear how that entity's activities in New York are relevant to the parties' choice of law dispute.
As to Count I, it is undisputed that the express terms of the Servicing Rider require Meridian to pay KGF the Discounted Balance of the Prime Army Contract in the event of (1) "a Cancellation"; (2) "any Non-renewal other than Non-appropriation of funds," or (3) "Termination for Convenience." (ECF No. 17-5, at 7). Thus, the only dispute is one of contract interpretation — specifically, whether the Army's decision not to exercise the remaining option years of the Prime Army Contract constitutes a "Non-renewal other than Non-appropriation of funds" within the meaning of Paragraph 15.
KGF argues that, pursuant to the unambiguous definition set forth in the Master Purchase Agreement, a "Non-appropriation" occurs only when the federal government does not renew a contract because Congress failed to appropriate funds for the services or equipment provided under that contract. (ECF No. 17-9, at 19-20). According to KGF, that scenario did not occur here, based on the evidence establishing that, soon after communicating its decision not to renew the Prime Army Contract, the Army sought quotes from
Defendants raise two principal arguments in response. First, Defendants maintain that, when the Master Purchase Agreement and the Servicing Rider are construed together in their entirety, it is clear that the parties intended that E3 and Meridian would be liable to KGF only if the Army's decision not to renew the Prime Army Contract "was due to some fault of E3 or Meridian." (ECF No. 18-1, at 6-7). Second, Defendants contend that "Non-appropriation of funds" can only reasonably be interpreted as referring to a lack of funding for the specific agreement between E3 and the Army, rather than a lack of funding for the copier services provided under that agreement. (Id. at 8-10). Neither of Defendants' arguments is availing.
Under both Virginia and New York law, contracts are to be construed in accordance with the parties' intent, which typically is best evidenced by the language of the contract itself. See Pocahontas Mining LLC v. CNX Gas Co., 276 Va. 346, 352, 666 S.E.2d 527 (2008) ("A court's primary focus in considering disputed contractual language is to determine the parties' intention, which should be ascertained, whenever possible, from the language the parties employed in their agreement."); Cont'l Ins. Co. v. Atl. Cas. Ins. Co., 603 F.3d 169, 180 (2d Cir.2010) (New York law) ("When interpreting a contract, the intention of the parties should control ... [, and] the best evidence of intent is the contract itself.") (internal quotation marks omitted) (alteration in original). Where an agreement is unambiguous (i.e., where it is susceptible to only one reasonable interpretation), both Virginia and New York law require the contract to be enforced according to the plain meaning of its terms, without resort to extrinsic evidence. See Amos v. Coffey, 228 Va. 88, 92, 320 S.E.2d 335 (1984) ("[W]hen the parties set out the terms of their agreement in a clear and explicit writing then such writing is the sole memorial of the contract and ... the sole evidence of the agreement.") (internal quotation marks omitted); Brad H. v. City of New York, 17 N.Y.3d 180, 185, 928 N.Y.S.2d 221, 951 N.E.2d 743 (2011) (a contract "that is clear, complete and subject to only one reasonable interpretation must be enforced according to the plain meaning of the language chosen by the contracting parties"; "extrinsic evidence may be considered only if the agreement is ambiguous"). Likewise, in determining whether ambiguity exists, both Virginia and New York law require consideration of the contract "as a whole." See Pocahontas, 276 Va. at 353, 666 S.E.2d 527; Brad H., 17 N.Y.3d at 185, 928 N.Y.S.2d 221, 951 N.E.2d 743. It also is well-settled under both states' law that contractual language will not be rendered ambiguous merely because the parties disagree about the meaning of such language. See Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396 (1984); Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992).
Here, the Master Purchase Agreement defines "Non-appropriation" as the "[f]ailure of the [Army] to exercise any annual renewal of the [Prime Army Contract] due to the insufficiency of appropriated funds from Congress, provided that the [Army's] determination is in no way related to any fault or performance deficiency by [E3]." (ECF No. 17-2, at 3). "Nonrenewal" means the "[f]ailure of [the Army] to exercise any annual renewal of the Prime Contract due to a determination by the [Army] that such renewal is not in the best interests of the Government, provided that the [Army's] determination is in no way related
The plain language of these definitions establishes that Meridian can be held liable even if the Army's decision was unrelated to any fault by E3 or Meridian. Under Paragraph 15 of the Servicing Rider, Meridian is liable for "any Non-Renewal other than Non-Appropriation of funds." (ECF No. 17-5, at 7) (emphasis added). A "Non-Renewal," by definition, cannot relate to any fault or performance deficiency. Thus, contrary to E3 and Meridian's argument, the presence or absence of fault by Defendants is not dispositive.
Defendants attempt to avoid this result by arguing that the parties never intended that E3 or Meridian would be liable to KGF "for reasons other than the fault of E3 or Meridian." (ECF No. 18-1, at 3). As evidence of the parties' intent, Defendants cite to an email from a KGF representative that states:
(ECF No. 18-5, at 2). This document does nothing to advance Defendants' argument, however. First, under both New York and Virginia law, it is inappropriate to look beyond the four corners of a contract to ascertain the parties' intent, absent a finding of ambiguity. As set forth above, Paragraph 15 of the Servicing Rider unambiguously imposes liability on Meridian for "any Non-renewal other than Non-appropriation of funds," and "Non-renewal" likewise is unambiguously defined to encompass scenarios where the federal government's determination to end a contract "is in no way related to any fault or performance deficiency." Second, the email merely recites the allocation of risk set forth in the original Master Purchase Agreement and confirmed in Assignment Schedule No. 2. As explained above, the Servicing Rider — which was executed by E3, Meridian, and KGF after Assignment Schedule No. 2 — specifically amended these provisions by reallocating certain risks to Meridian.
Because Defendants' fault is irrelevant to determining Meridian's liability under the Servicing Rider, the critical question is whether the Army's decision not to exercise the remaining option years of the Prime Army Contract was due to "a determination... that such renewal is not in the best interests of the Government" or due to "the insufficiency of appropriated funds from Congress." As discussed, the Army repeatedly characterized its decision not to exercise option year two of the Prime Army Contract as being due to "lack of funding" or "funding issues." At first blush, this explanation would appear to fall within the definition of "Non-appropriation" because, as Defendants observe, it is logical to presume that "the Army can obtain `funding' only through appropriations." (ECF No. 18-1, at 6).
Upon closer examination, however, the explanation provided by the Army warrants a different conclusion. In an email dated August 10, 2010, the Army stated that "Option Year Two was not exercised due to funding issues. [E3] has acknowledged that they are not listed on the current required BPA for copiers." (ECF No. 18-6, at 2). Likewise, in its denial letter dated October 19, 2010, the Army explained that it had already conducted a competition for copier services at Fort Belvoir among eight BPA holders because such services "must be procured in accordance with the use of the mandatory Enterprise Copier Support Ordering Guide." (ECF No. 18-3, at 2). The Army further
Thus, the record establishes that the Army decided not to exercise the second option year of the Prime Army Contract because of internal requirements about the bidding process to be used for copier services.
In sum, because the plain, unambiguous definition of "Non-appropriation" requires that the failure to exercise an annual renewal be due to "the insufficiency of appropriated funds from Congress," it cannot be said that the Army's decision not to exercise the remaining option years of the Prime Army Contract constituted a "Non-appropriation." Rather, the Army's decision falls squarely within the definition of a "Non-renewal," as it (1) represented a determination that exercising the remaining option years was "not in the best interests of the Government" because E3 was not an approved vendor under the Army's thencurrent mandatory bidding process and (2) was unrelated to any fault of E3 or Meridian. Thus, Meridian is liable to KGF for the Discounted Balance and breached the Servicing Rider by refusing to pay KGF this amount within 30 days of October 19, 2010, the date when E3 received written confirmation of the Army's final decision.
As to damages, KGF represents that it is entitled to, inter alia, an award of $224,494.38, representing the Discounted Balance. The Master Purchase Agreement specifically states that KGF's calculation of the Discounted Balance "will be definitive, absent manifest error." (ECF No. 17-2, at 2). Because Defendants do not contest the figure proposed by KGF and because there is no error evident in KGF's calculation, KGF will be awarded $224,494.38 in damages pursuant to Count I.
KGF also seeks judgment on its claim that E3 breached its contractual obligations to use "best efforts" to obtain renewals of the Prime Army Contract and to
In their opposition, Defendants argue that summary judgment is not appropriate as to Count II because genuine disputes of material fact remain. (ECF No. 18-1, at 10). Notably, E3 admits that it did not submit a quote to the Army for an extension of the Prime Army Contract through November 30. (ECF No. 18-2, Fernandez Decl. ¶ 11). E3 nonetheless maintains that it exercised "best efforts" in other ways, including by requesting reconsideration of the Army's decision and submitting proposals to the Army for new contracts with longer periods of performance. Defendants also submit evidence contradicting KGF's purported entitlement to $36,019.90 in lease payments. Mr. Fernandez represents that E3 prevailed on a claim against the Army for $40,317.64, representing payment from July 2010 through October 30, 2010, and that KGF received its full share of this payment on April 15, 2011. (ECF No. 18-2, Fernandez Decl. ¶¶ 12-13).
If E3's version of events is credited, a reasonable jury could find that E3 met its contractual obligations to use "best efforts." Thus, summary judgment as to Count II is not warranted at this time.
Finally, KGF moves for judgment as to Count III, which seeks to hold Meridian and E3 liable for each other's alleged contractual breaches. To support its position, KGF relies the following provision in Paragraph 15 of the Servicing Rider:
(ECF No. 17-5, at 7).
KGF correctly characterizes this excerpt as an indemnification clause, but misconstrues what effect the provision has here. The clause cited establishes a bilateral indemnity relationship, with E3 and Meridian on one side and KGF on the other. Pursuant to this relationship, E3 and Meridian agreed to indemnify KGF against "Claims" — meaning "liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements" that have been asserted against or incurred by KGF and are the result of either E3's or Meridian's actions. One hypothetical scenario that would fall squarely within this express language is if an Army
Here, by contrast, KGF is attempting to construe Paragraph 15 as establishing a bilateral guaranty relationship between E3 and Meridian, whereby E3 is jointly and severally liable for any debts that Meridian alone incurs as a result of breaching the Servicing Rider and vice versa. The plain language of Paragraph 15 cannot be read as establishing such a relationship, and KGF offers no reasoned analysis in support of its interpretation. Accordingly, although E3 and Meridian have not filed a cross motion for summary judgment, Defendants are entitled to judgment as a matter of law as to Count III of the complaint. See, e.g., Potomac Riverkeeper, Inc. v. Nat'l Capital Skeet & Trap Club, Inc., 388 F.Supp.2d 582, 586 (D.Md. 2005) ("The Court may enter summary judgment sua sponte in favor of the non movant when it is considering a properly noticed motion for summary judgment from the moving party on an identical issue.").
For the foregoing reasons, the motion for summary judgment filed by Plaintiff Key Government Finance, Inc., will be granted in part and denied in part. A separate Order will follow.
Section 10.07 of the Master Purchase Agreement also states that "the exclusive venue for all litigation arising between the parties related to this Agreement, or any Assignment Schedule issued hereunder, shall be in the state or federal courts sitting in the State of New York." (Id.). Fed.R.Civ.P. 12(h)(1)(B) provides that a party waives the defense of improper venue by failing to either (i) raise it in a Rule 12 motion or (2) include it in a responsive pleading. In their answers, both Meridian and E3 raise improper venue as an affirmative defense, citing to Section 10.07. (See ECF No. 7, at 5; ECF No. 14, at 4). The Defendants do not, however, raise any arguments regarding venue in their joint opposition. (See generally ECF No. 18). Thus, notwithstanding their technical compliance with Rule 12(h)(1), Defendants likely have waived any objection to venue by opting to litigate on the merits. See 5C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1391 (3d ed.) ("[A] party can be held to have waived a defense listed in Rule 12(h)(1) through conduct, such as extensive participation in the discovery process or other aspects of the litigation of the case even if the literal requirements of Rule 12(h)(1) have been met[.]").
