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In Fidelity Telealarm, L.L.C. v. Silver Resources Inc., 2004 WL 1047661 (E.D. Pa. 2004) the court, applying the Texas DTPA, defined "project" as a "planned undertaking," and held that a long running distribution relationship between two parties constituted a project.
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Civil Action Consolidated Lead Case No. 01-2912, Civil Action Consolidated Member Case No. 02-6580.
May 7, 2004
MEMORANDUM
Presently before this Court is the Motion for Partial Summary Judgment filed by Fidelity Telealarm, L.L.C. pursuant to Federal Rule of Civil Procedure 56(c), and the Response filed by Silver Resources, Inc. In this Motion, Fidelity Telealarm, L.L.C. seeks dismissal of the claims made by Silver Resources, Inc. under the Texas Deceptive Trade Practices Act. For the following reasons, the Motion will be granted.
I. BACKGROUND.
Fidelity Telealarm, L.L.C. ("Fidelity") is a limited liability company organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business in Reading, Pennsylvania. Fidelity Telealarm is a member of The Fidelity Group of companies which are internationally located. Fidelity markets and services wireless emergency call systems with specific applications for senior citizen housing, including assisted living facilities and individuals in their private homes. The products are designed and manufactured by a Fidelity Group Company other than Fidelity, and are installed and serviced by a nationwide network of distributors. Jack D. Gulati is the Chief Executive Officer, chairman, and sole shareholder of Fidelity.
Silver Resources, Inc. ("Silver") is an S corporation with its principal and home office in San Antonio, Texas. Silver is a nationwide independent distributor of emergency call and response equipment for retirement communities. Silver is headed by a husband and wife team, M.D. "Doc" Stephens, who serves as Secretary and Vice-President of Silver, and Ellen Stephens, who serves as President of Silver.
Doc Stephens characterizes himself as an independent distributor. On April 20, 1999, he and his wife met and had discussions with Jack D. Gulati and David J. Gulati at an Assisted Living Federation of America trade show in Dallas, Texas. One topic of the discussions was Silver's distribution of Fidelity's products. At some point either during or following this meeting and various telephone calls, Doc Stephens traveled to the home of a consultant named Dave Pope in Austin, Texas. The purpose of his visit was to examine and familiarize himself with Fidelity's entire product line. Doc and Ellen Stephens also visited Fidelity's Pennsylvania offices on at least two occasions in June and July 1999.
Up to this time, Silver distributed and installed products for Elcombe Systems Limited of Ontario, Canada, now known as March Networks Corp.
From June 2, 1999 through February 7, 2001, Silver purchased from Fidelity various components for use in installation of alarm or nurse call systems via purchase orders, telephone orders or fax orders to Fidelity in Reading. The ordered goods were then either shipped to Silver in Texas or shipped to Silver's customer sites in various states, including Texas. Silver then utilized these ordered components in installing systems at its customer sites. Although the total amount of goods purchased by Silver from Fidelity is disputed, the total minimum amount of purchased Fidelity product was just under $600,000. (M.D. Stephens Dep., p. 123.) The relationship between Silver and Fidelity ended in or around March, 2001, when Jack D. Gulati sent Doc Stephens an e-mail that said "as far as he was concerned we had no more ongoing business relationship." (Id. at 22.)
Fidelity filed a Complaint against Silver in this District Court on June 13, 2001, for damages in the amount of $147,858,89 arising out of various purchases by Silver of goods sold to Silver by Fidelity. That case was assigned to the Honorable Franklin S. Van Antwerpen at Civil Action No. 01-2912. On July 18, 2001, Silver filed a Complaint against Fidelity in the District Court, 166th Judicial District, Bexar County, Texas. In the Texas state court case, Silver alleged three causes of action: (1) fraud; (2) deceptive trade practices under the Texas Deceptive Trade Practices — Consumer Protection Act, Texas Business and Commerce Code, sections 17.41-17.63; and (3) interference with business relationship with Silver's customers, including prospective contracts.
The state court case was removed by Fidelity to the District Court for the Western District of Texas, Civil Action No. SA-01-0807-HG. Upon Fidelity's motion, the case was transferred to this District Court and assigned to the Honorable Berle M. Shiller at Civil Action No. 02-6580. It was subsequently transferred to the docket of the Honorable Franklin S. Van Antwerpen, and both cases before this Court were consolidated for purposes of pre-trial proceedings and trial, with No. 01-2912 as the lead consolidated case, and No. 02-6580 as the member consolidated case. The parties consented to try their case before a United States Magistrate Judge on August 12, 2003, and Judge Van Antwerpen referred the consolidated cases to this Court pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 on August 19, 2003. On September 12, 2003, this Court entered a Scheduling Order following a telephone conference with counsel, and on March 26, 2004, Fidelity filed the instant Motion for Partial Summary Judgment. Silver filed its answer on April 19, 2004.
Fidelity moves for summary judgment and seeks dismissal of Silver's deceptive trade practices claims under the Texas Deceptive Trade Practices — Consumer Protection Act, Texas Business and Commerce Code, sections 17.41 to 17.63. Fidelity specifically claims that: (1) Pennsylvania substantive law applies to this case, Pennsylvania has the greater interest in the application of its law and is the state with the most significant contacts and connection with the dispute between the parties; (2) even if this Court feels that the Texas Deceptive Trade Practices — Consumer Protection Act ("DTPA") applies in this case, Silver is barred from relief because it did not provide Fidelity with written notice as required by Tex. Bus. Comm. Code § 17.505, which is a prerequisite to filing suit seeking damages; (3) Silver is barred from relief by Tex. Bus. Comm. Code § 17.49(c), which exempts "a claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill"; (4) Silver is barred from relief by Tex. Bus. Comm. Code § 17.49(g) because Silver expended over $700,000 over the course of the companies' business relationship over the course of several years; and (5) Silver's Complaint fails to state a cause of action for which relief may be granted for unfair and/or deceptive trade practices, either under the Pennsylvania Unfair Trade Practices Consumer Protection Law or the Texas DTPA.
II. STANDARD.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "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(c). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248.
To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of its claim.Celotex, 477 U.S. at 322-23. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Id. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987). III. DISCUSSION.
Federal courts in diversity cases apply the substantive law of the forum state in which the court is sitting, including that state's choice of law rules. See Nova Telecom, Inc. v. Long Distance Mgmt. Sys., Inc., No. 00-2113, 2000 WL 1593994, at *6 (E.D. Pa. Oct. 26, 2000) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1940); Borman v. Raymark Indus., 960 F.2d 327, 331 (3d Cir. 1992); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); and LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir. 1996)). Thus, this Court must examine the choice of law rules that a Pennsylvania court would apply. Id. (citing LeJeune, 85 F.3d at 1071). "The choice of law analysis must be conducted with respect to the particular issues presented, such that different law may apply to different causes of action." Id. (citing DuSesoi v. United Ref. Co., 540 F. Supp. 1260, 1266-68, 1272-73 (W.D. Pa. 1982) (analyzing choice of law separately as to breach of written contract, breach of oral contract and fraud); Restatement (Second) Conflicts of Law §§ 145 (limiting tort analysis to the "particular issue"), 188 (limiting contract analysis to the "particular issue")).
A. Nature of the Conflict.
If the parties do not make an effective choice of law, courts in the Third Circuit interpret Pennsylvania law to require a two-step inquiry into applicable law. Id. (citing Phoenix Four Grantor Trust # 1 v. 642 N. Broad St. Assocs., No. 00-597, 2000 WL 876728, at *4 (E.D. Pa. June 29, 2000); LeJeune, 85 F.3d at 1071; Kirby v. Lee, No. 98-6483, 1999 WL 562750, at *1 (E.D. Pa. July 22, 1999)). The first step in the analysis requires a determination whether there is a false conflict between the "ostensibly competing bodies of law." Aircraft Guar. Corp. v. Strato-Lift, Inc., 951 F. Supp. 73, 77 (E.D. Pa. 1997) (citingLeJeune, 85 F.3d at 1071). Where no difference exists between the laws of the forum state and those of the foreign jurisdiction, there is a "false conflict" and the court need not decide the choice of law issue. Nova Telecom, Inc., 2000 WL 1593994, at *6 (citing In re Complaint of Bankers Trust Co., 752 F.2d 874, 882 (3d Cir. 1984) ("If the foreign law to which the forum's choice-of-law rule refers does not differ from that of the forum on the issue, the issue presents a `false conflict.'") and Lambert v. Kysar, 983 F.2d 1110, 1114-15 (1st Cir. 1993) ("We need not resolve the [conflict of law] issue . . . as the outcome is the same under the substantive law of either jurisdiction.")).
Next, the effect of the choice of law on the policy interests of the rival jurisdictions must be considered. Aircraft Guar. Corp., 951 F. Supp. at 77(citing Compagnie des Bauxites v. Argonaut-Midwest Ins., 880 F.2d 685, 688-89 (3d Cir. 1989)). Both Texas and Pennsylvania have an interest in affording their corporate citizens the full measure of recovery available under their respective laws, and in this case, the interests of both Texas and Pennsylvania would be impaired by application of the other's law with regard to consumer protection and deceptive trade practices. Thus, the conflict is not a false conflict, but rather a true conflict.
In Pennsylvania, a "hybrid" choice of law analysis is performed when analyzing true conflicts. Id. (citing Tersco, Inc. v. E.I. DuPont de Nemours Co., 879 F. Supp. 445, 447 (E.D. Pa. 1992)). This hybrid analysis requires application of the substantive law of the jurisdiction that has "the most interest in the problem and which is the most intimately concerned with the outcome." Id. (quoting PECO Energy Co. v. Boden, 64 F.3d 852, 855 (3d Cir. 1995)).
B. The Competing Jurisdictions' Individual Contacts.
Because the governmental interests of Texas and Pennsylvania would be impaired by the application of the other's law, we must now decide which state has the most interest in the dispute and is the state most intimately concerned with its outcome. Id. (citing PECO Energy Co., 64 F.3d at 855). In contract actions, courts examine "(1) the place of negotiation, contracting, and performance of the contract in question; (2) the location of the subject matter of the contract; and (3) the parties' citizenship." Id. (quoting Kramer v. Nowak, 908 F. Supp. 1281, 1285 (E.D. Pa. 1995) (citations omitted)). Although no formal distributorship contract was entered into by Silver and Fidelity, a distributorship arrangement nonetheless manifested itself through the parties' course of dealing.
Here, the parties respectively argue that Texas and Pennsylvania law is applicable to the deceptive trade practices claims. Fidelity, the moving party, argues that Pennsylvania has the greater interest in the application of its law and is the state with the most significant contacts and connection with the dispute between the parties. For support, Fidelity points out numerous Pennsylvania contacts, and in response, Silver notes the parties' Texas contacts.
The parties disagree on the time and place of their negotiations and subsequent contract. According to Fidelity, Doc Stephens contacted Fidelity in April 1999, indicated that he was having problems with his then supplier, Elcombe Systems Limited of Ontario, Canada, and stated that wanted to explore the possibility of distributing Fidelity's products. This telephone call, according to Fidelity, was followed by casual discussions at an Assisted Living Federation of America trade show in Dallas, Texas on April 20, 1999. Fidelity contends that the actual business relationship between the parties did not begin until M.D. and Ellen Stephens visited Fidelity in Pennsylvania in May or June of 1999 and placed a first order for the purchase of products from Fidelity in or around that time.
According to Silver, the most significant contact between the parties occurred at their first meeting in April of 1999 at the Dallas trade show because the misrepresentations allegedly made by Fidelity which induced Silver to give up the Elcombe product line in favor of Fidelity took place at that meeting. Mindful of the standard of review on summary judgment, this Court finds merit in Silver's position that the numerous contacts listed by Fidelity which consist of telephone conversations and in-person visits to Fidelity's headquarters in Pennsylvania are not germane to the misrepresentations which form the basis of Silver's DTPA claim against Fidelity. Thus, this Court agrees with Silver that Texas' substantive law regarding deceptive trade practices should be followed on this issue. See Tersco, 879 F. Supp. at 447 (court applied Texas law where Texas was place of negotiations, contracting and performance).
C. Silver's DTPA Claims.
As Fidelity correctly notes, if this Court were to apply Pennsylvania substantive law, Silver would be barred from recovery under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), which allows only persons who have purchased or leased goods or services for personal, family or household use to bring a private cause of action for damages. This statute does not apply to persons who have purchased or leased goods or services for business use. Because Silver did not purchase goods for personal, family or household use, any damages claim pursuant to the Pennsylvania UTPCPL would be dismissed.
However, as noted supra, we shall apply the law of Texas with respect to Silver's claims for deceptive trade practices. First, we must examine whether Silver falls within the purview of the Texas Deceptive Trade Practices — Consumer Protection Act, Texas Business and Commerce Code, sections 17.41 to 17.63 ("DTPA"). Silver claims protection under the DTPA on the basis that it is a consumer. Under the DTPA, a consumer is defined as:
an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more.
Tex. Bus. Comm. Code § 17.45(4). "Business consumer" is defined as "an individual, partnership, or corporation who seeks or acquires by purchase or lease, any goods or services for commercial or business use. The term does not include this state or a subdivision or agency of this state." Id. § 17.45(10). Silver is a Texas S corporation that acquired goods or services by purchase from Fidelity, its assets are under $25 million, and it is not owned or controlled by a corporation or entity with assets of $25 million. In order to be considered a consumer with standing to sue under the DTPA, two requirements must be satisfied: (1) the claimant must have purchased goods or services; and (2) the goods must form the basis of the complaint.Americom Distrib. Corp. v. ACS Communications, Inc. 990 F.2d 223, 227 (5th Cir.), cert. denied, 510 U.S. 867 (1993) (citing Cameron v. Terrell Garrett, 618 S.W.2d 535, 539 (Tex. 1981)). Here, Silver purchased goods from Fidelity, and Silver's complaint is partially based on fault with Fidelity's goods.
The informal distributorship arrangement between the parties gave Silver the ability to purchase and resell Fidelity's products. Under Texas law,
[s]uch a distributorship arrangement involves the acquisition of an intangible property right, and may also involve the acquisition of goods or services. Texas Cookie Co. v. Hendricks Peralta, Inc., 747 S.W.2d 873, 876-77 (Tex.App.-Corpus Christi 1988, writ denied). An intangible property right alone does not confer "consumer" status and is excluded from the DTPA's coverage. Id.
. . . .
A DTPA claim is allowed in at least some circumstances when a distributorship agreement also involves the provision of tangible goods and services. Id. The key is whether the collateral goods and services are "an objective of the transaction and not merely incidental to it." Id. at 877; see also Fisher Controls Int'l, Inc. v. Gibbons, 911 S.W.2d 135, 139 (Tex.App.-Houston (1st Dist.) 1995, writ denied); Wheeler v. Box, 671 S.W.2d 75, 78-79 (Tex.App.-Dallas 1984, no writ).Barnes v. Omnitrition Int'l, Inc., No. 3:98-CV-1434-L, 2001 WL 194757, at *2 (N.D. Tex. Feb. 22, 2001). The collateral goods and services in this case are not merely incidental to the distributorship agreement. Because, in a DTPA claim, "the goods or services purchased or leased must form the basis of the complaint," this case falls within the purview of the DTPA. Id. (quoting Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351-52 (Tex. 1987)).
There are exemptions to the DTPA, and Fidelity argues that Silver is barred from relief by Tex. Bus. Comm. Code section 17.49(g). Section 17.49(g) provides that:
Nothing in this subchapter shall apply to a cause of action arising from a transaction, a project, or a set of transactions relating to the same project, involving total consideration by the consumer of more than $500,000, other than a cause of action involving a consumer's residence.
Tex. Bus. Comm. Code § 17.49(g). Fidelity calculates Silver's purchases as totaling in excess of $700,000 over the course of the companies' distributorship relationship from 1999 through 2001. Because this amount is in excess of $500,000, Fidelity argues that Silver is barred from any recovery under the DTPA. For support, Fidelity cites Space Maker Designs v. Weldon F. Stump, Nos. 3:02-CV-0378-H 3:02-CV-2239-H, 2003 WL 21414726, at *2 (N.D. Tx. 2003), a Northern District of Texas case in which the parties stipulated that they entered into three contracts with a total price to be charged for three lines of equipment totaling $519,000. The court found that the DTPA claim was precluded by section 17.49(g) and stated that:
[t]The DTPA does not define the term "total consideration." Therefore, the Court must determine what the Legislature meant when it adopted this language. When the language of statute is unambiguous, the Court should apply the ordinary meaning of the words being construed. Page v. Structural Wood Components, Inc., 102 S.W.3d 720, 727 (Tex. 2003). Black's Law Dictionary defines consideration as "the inducement to a contract." BLACK'S LAW DICTIONARY 306 (6th ed. 1990). Stump was clearly "induced" to enter into the contract by the promise of $519,000 in payment for the manufacturing equipment it was to deliver and install. The fact that the actual value to be conveyed may have changed after the contract was entered into does not change the value of the consideration promised by the consumer at the time of contracting. Furthermore, applying an ex ante approach rather than an ex post one allows parties to a contract to know with certainty whether their contract will fit within the coverage of the DTPA.Space Maker, 2003 WL 21414726, at *2.
Silver argues that Fidelity fails to point out what the "project" was that formed the basis for the series of transactions. Silver distinguishes Spacemaker on the basis that the plaintiff company in that case purchased the subject equipment for the purpose of utilizing it within its own shop to manufacture industrial rack systems. Silver notes, however, that the equipment purchased by Silver was not utilized by Silver and did not constitute a single project, rather it was installed by Silver in a number of projects throughout the United States. Moreover, Silver argues that no case authority supports Fidelity's definition of a "project" as encompassing all of the business dealings of a company over several years.
Neither Fidelity nor Silver notes the admission by Doc Stephens at his deposition that the total minimum amount of product purchased by Silver from Fidelity was just under $600,000. (M.D. Stephens Dep., p. 123.) A review of Fidelity's sales invoices, sales orders and sales order lists previously submitted in Court pleadings reveals that all product was sold by Fidelity to Silver. Thus, Silver's attempt to distinguish Spacemaker on the basis that none of the product purchased by Fidelity was utilized by it is a distinction without a difference due to the facts before this Court. Moreover, Silver, as the non-moving party, cannot rely on unsupported assertions or conclusory allegations and Silver cites no supporting case law for its argument that no case authority supports Fidelity's definition of a "project" as encompassing all of the business dealings of a company over several years, therefore this argument fails.
The term "project" is undefined in the Texas DTPA. If the legislature does not define a term, its ordinary meaning is applied. Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969). "Project" is defined in the Merriam-Webster OnLine Dictionary as a planned undertaking. MERRIAM-WEBSTER ONLINE DICTIONARY 2004, Merriam-Webster, Inc. Clearly, the project, or planned undertaking between Silver and Fidelity was a distribution relationship. Because the total consideration from that project exceeded $500,000, Silver is not entitled to the protections of the DTPA, and its DTPA claims against Fidelity fail.
IV. CONCLUSION.
Based on the foregoing, under Pennsylvania's choice of law rules and because Texas has more significant contacts than does Pennsylvania with respect to the relationship between Fidelity and Silver, Texas law is applicable in evaluating Silver's deceptive trade practice claims against Fidelity. Nonetheless, because Silver is exempted from the protection of the Texas DTPA, its deceptive trade practice claims fail under both Pennsylvania and Texas law. Thus, Silver's claims under the Texas Deceptive Trade Practices Act are dismissed, and summary judgment on these claims is granted in Fidelity's favor.
An appropriate Order follows.
ORDER
AND NOW, this 7th day of May, 2004, upon consideration of the Motion for Partial Summary Judgment filed by Fidelity Telealarm, L.L.C. ("Fidelity"), and the Response filed by Silver Resources, Inc. ("Silver"), it is hereby ORDERED that the Motion is GRANTED and Silver's claims under the Texas Deceptive Trade Practices — Consumer Protection Act are DISMISSED.