MOROCCANOIL, INC., Civ. No. 1 1-cv-O 136 (KM) (MAH)

Plaintiff,

MEMORANDUM OPINION

V.

TONY CONFORTI, et al.,

Defendants.

MCNULTY, District Judge

This matter comes before the Court on cross-motions to enforce a

settlement agreement brought by plaintiff, Moroccanoil, Inc. (ECF no. 107) and

defendants, Tony Conforti and Salon Distribution, Inc. (“SDI”) (ECF’ no. 118).

The parties have treated the motions as ones for summary judgment, pursuant

to Fed. R. Civ. p. 56, and I agree with their approach. Finding that the parties’

contentions cannot be resolved on the papers, I will deny both motions and

direct them to Magistrate Judge Hammer to work out a schedule for discoveryso that the issues can be postured for summary judgment or an evidentiary

hearing.

I. DISCUSSION

A. Applicable Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “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); see also Anderson ‘. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000).
respect to an issue on which the nonmoving party bears the burden of proof

the burden on the moving party may be discharged by ‘showing’—that is,

pointing out to the district court—that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325.

Once the moving party has met that threshold burden, the non-moving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). The opposing party must present actual evidence that

creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which

nonmoving party must rely to support its assertion that genuine issues of

material fact exist). “[U]nsupported allegations ... and pleadings are insufficient

to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654,

657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138

(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact

if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).

If the nonmoving party has failed “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, ... there can be ‘no genuine issue of

material fact,’ since a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.”Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,

477 U.S. at 322—23).

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William Martini, was reassigned to me.

The action was settled. On September 13, 2013, I signed and filed a

stipulations and order of dismissal in which I retained jurisdiction to enforce

the settlement agreement. (ECF no. 104) From April—September 2015, the

parties filed briefs and other papers in connection with their contentions that

the settlement agreement had been breached and should be enforced.

What follows is just a sample of the factual allegations in the parties’

papers.

In the Agreement, Defendants committed themselves to purchase $1.29

Million (denominated in Canadian Dollars (“CDN”)) of genuine Moroccanoil

products, and would sell them only to end users in their salons. According to

Moroccanoil, Defendants have breached the Agreement by reselling large

wholesale quantities of Moroccanoil products to an unauthorized retail store,

“Suki,” in Macau, China. (PSMF ¶j 35—39)

Moroccanoil seeks $374,279 CDN in actual damages, as well as

$860,000 CDN in liquidated damages, return of the products, and a permanent

injunction prohibiting Defendants from dealing in Moroccanoil products.

The orders involved in the Macau sales were allegedly nos. 406809,

403209, 418387, and 401577. (DSMF ¶12) According to defendants, they never

even received products under two of those numbers, which were surreptitiously

altered by Venus, Moroccanoil’s distributor. (DSMF ¶ 19) Defendants state that

they fully accounted for the sales as required by the Agreement, but that

Moroccanoil denied they had done so and unilaterally ceased filling Defendants’

orders. (DSMF ¶ 19, 20, 21)

Defendants provided hard copies of the already-provided electronic

record encompassing the four order numbers at issue. (DSMF ¶ 27) Meanwhile,

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submitted by Moroccanoil, say Defendants, is inadmissible hearsay.

Based on its claims of breach, Moroccanoil allegedly wrongfully refused

to fill orders. This, say Defendants, prevented them from fulfilling their

purchase obligations under the Agreement (although they have to dateallegedly purchased some $800,000 CDN worth). (DSMF ¶J 3 1—35)

Each party substantially denies the other’s version of the events. At the

very least, each has the right to depose the other’s affiants and to inspect thedocumentary evidence.

I cannot and do not take any position on whose position is correct. I

simply find that these summary judgment motions are premature. The issues

involve, not just interpretation of the Agreement, but farfiung events inCanada, the U.S., and China.

Pursuant to Fed. R. Civ. P. 56(d), I will deny the motions as presented.

The parties are directed to set up a conference with the Magistrate Judge

assigned to the case and work out a discovery schedule.

CONCLUSION

For the reasons stated above, the defendants’ motions for summary

judgment will be DENIED. An appropriate Order accompanies this opinion.

Dated: March 30, 2016

K VINMCNULTYUnited States District Judge

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