IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

The Freeport Press, Inc., :

Plaintiff, :

v. : Case No. 2:12-cv-128

GoLoco Media Group, Inc., et al.: Magistrate Judge Kemp 

 

Defendants. :

OPINION AND ORDER

This is an action for breach of contract and unjust

enrichment filed by Plaintiff The Freeport Press, Inc.

(“Freeport”) against Defendants Goloco Media Group, Inc. (“Goloco

Media”), William M. Keever, and Lighter Landing Publications,

Inc. (“Lighter Landing”). This matter is before the Court on the

motion of Freeport for summary judgment filed on February 27,

2013. No Defendants have responded to this motion, and the time

for doing so has long passed. For the reasons that follow, the

unopposed motion for summary judgment is granted in part and

denied in part. 

I. Background

Plaintiff has presented uncontroverted evidence of the

following facts. On or about May 13, 2011, Defendant Goloco

Media entered into a contract with Freeport regarding payment

terms. (Pilcher Affidavit, Exh. A-1.) Defendant Mr. Keever

signed the contract for payment terms as a personal guarantor,

guarantying payment for all charges and/or money due to Freeport. 

(Id.) Freeport provided Goloco Media with goods and services

pursuant to the contract. (Pilcher Affidavit, ¶3.) Freeport

billed Goloco Media. (Pilcher Affidavit, Exh. A-2.) Some time

prior to July 26, 2011, Goloco Media acquired Lighter Landing. 

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(Pilcher Affidavit, Exh. A-3.) Defendants have failed to pay

Freeport the $99,562.70 balance due on Goloco Media’s account. 

(Pilcher Affidavit, ¶¶7-8.)

II. Standard of Review

Summary judgment is not a substitute for a trial when facts

material to the Court's ultimate resolution of the case are in

dispute. It may be rendered only when appropriate evidentiary

materials, as described in Fed.R.Civ.P. 56(c), demonstrate the

absence of a material factual dispute and the moving party is

entitled to judgment as a matter of law. Poller v. Columbia

Broadcasting Systems, Inc., 368 U.S. 464 (1962). The moving

party bears the burden of demonstrating that no material facts

are in dispute, and the evidence submitted must be viewed in the

light most favorable to the nonmoving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144 (1970). 

The fact that the motion is unopposed “does not change this

requirement or lessen the burden on the moving party or the

court.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 410

(6th Cir. 1992) (citation omitted). “When a non-moving party

fails to respond, therefore, the district court must, at a

minimum, examine the moving party's motion for summary judgment

to ensure that it has discharged its initial burden.” Miller v.

Shore Fin. Services, Inc., 141 F. App'x 417, 419 (6th Cir. 2005)

(citation omitted). Courts are not required to “comb the record

from the partisan perspective of an advocate for the non-moving

party,” but rather courts “may rely on the moving party’s

unrebutted recitation of the evidence, or pertinent portions

thereof, in reaching a conclusion that certain evidence and

inferences from evidence demonstrate facts which are

‘uncontroverted.’” Guarino, 980 F.2d at 410. It is with these

standards in mind that the instant motion must be decided. 

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III. Analysis

This case was removed to federal court based on diversity

jurisdiction. Freeport is an Ohio company and Defendants are all

citizens of Tennessee. Freeport’s motion for summary judgment

does not address which state’s laws govern, but for purposes of

this motion, the outcome would be the same under Ohio or

Tennessee law. There are four main elements of a breach of

contract claim under Ohio law: “(a) the existence of a contract;

(b) performance by the plaintiff; (c) breach by the defendant;

and (d) damage or loss to the plaintiff.” Thomas v. Publishers

Clearing House, Inc., 29 F. App'x 319, 322 (6th Cir. 2002)

(citing Doner v. Snapp, 98 Ohio App.3d 597, 649 N.E.2d 42, 44

(1994)). There are three under Tennessee law: “(1) the

existence of a contract, (2) breach of the contract, and (3)

damages [that] flow from the breach.” Hinton v. Wachovia Bank of

Delaware Nat. Ass'n, 189 F. App'x 394, 398 (6th Cir. 2006)

(citation omitted). Unjust enrichment is not available when an

express contract is found. See Wuliger v. Manufacturers Life

Ins. Co., 567 F.3d 787, 799 (6th Cir. 2009) (“Ohio law is clear

that a plaintiff may not recover under the theory of unjust

enrichment or quasi-contract when an express contract covers the

same subject”) (citation omitted); see also Daily v. Gusto

Records, Inc., 14 F. App'x 579, 587 (6th Cir. 2001) (Tennessee

law provides as a general rule that a claim for unjust enrichment

is based on an implied contract, and a contract generally cannot

be implied at law when a valid contract exists on the same

subject matter) (citations omitted). 

Freeport has provided uncontroverted evidence of the

existence of a contract between itself on the one hand and

Defendants Goloco Media and Mr. Keever on the other hand. 

According to the affidavit of Mr. Pilcher, Freeport performed its

obligations under the contract. Also according to the affidavit

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of Mr. Pilcher, Goloco Media and Mr. Keever breached the

contract, and the breach damaged Freeport in the amount of

$99,562.70 before interest, attorneys’ fees and costs. 

Accordingly, Freeport has demonstrated that it is entitled to

judgment as a matter of law on its breach of contract claim

against Goloco Media and Mr. Keever. 

However, the evidence submitted in support of the motion for

summary judgment fails to demonstrate that Freeport entered a

contract with Defendant Lighter Landing. The mere fact that

Goloco Media acquired that company does not make it liable for

Goloco Media’s debts. Further, the record, as it stands, does

not contain evidence sufficient to demonstrate a claim of unjust

enrichment against Lighter Landing. The motion for summary

judgment is denied as to that Defendant. 

IV. Conclusion

For the foregoing reasons, Freeport’s motion for summary

judgment (Doc. 35) is granted in part and denied in part. The

motion is granted as to the claim for breach of contract against

Defendants Goloco Media Group, Inc. and William M. Keever. The

remainder of the motion is denied. Plaintiff may file a

supplemental motion for summary judgment attaching additional

evidence regarding Defendant Lighter Landing Publications, Inc.

within fourteen days of the date of this Order. If it fails to

do so, the Court will enter judgment against Defendants Goloco

Media Group, Inc. and William M. Keever and dismiss the claims

against Defendant Lighter Landing Publications, Inc. 

/s/ Terence P. Kemp 

United States Magistrate Judge

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