United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on plaintiff's motion for
summary judgment (DE 27) and defendant's motion to
exclude portions of the affidavit of plaintiff's member
and manager, Dr. Daniel Uba (“Uba”), upon which
plaintiff relies. (DE 34). The motions have been fully
briefed, and in this posture, issues raised are ripe for
ruling. For the following reasons, defendant's motion to
exclude is granted in part and plaintiff's summary
judgment motion is denied.
initiated this action August 18, 2015, in the Superior Court
of Cumberland County, North Carolina, seeking compensatory
damages, punitive damages, specific performance, costs of
court, and attorney's fees arising from defendant's
alleged breach of contract and violation of the North
Carolina Unfair and Deceptive Trade Practices Act
(“UDTPA”), N.C. Gen. Stat. § 75-1.1 et
seq. Thereafter, defendant removed the case, centered
around a dispute concerning repair of an elevator, to this
court pursuant to 28 U.S.C. §§ 1332, 1441, &
a period of discovery, plaintiff filed the instant motion
August 9, 2016, accompanied by a statement of material facts,
appendix thereto, and memorandum of law. Plaintiff relies
upon the following materials: a work order executed by
plaintiff's owner; the affidavit of defendant's
employee Barbara Sullivan (“Sullivan”); e-mail
correspondence between the parties; deposition testimony of
defendant's employee Jeff Slatcoff, Jr.
(“Slatcoff”); and the affidavit of Uba.
responded in opposition to the instant motion, and separately
filed a motion to exclude portions of Uba's affidavit.
With the exception of that affidavit, defendant relies upon
the same evidence offered by plaintiff and, in addition, a
note written by an unidentified employee of plaintiff
together with the deposition of plaintiff's employee,
Carolyn Chaple (“Chaple”).
also filed a document styled “objection to inadmissible
facts, ” pursuant to Federal Rule of Civil Procedure
56(c)(2), where plaintiff raises issues not addressed in its
memorandum in support of summary judgment. (DE 39). Defendant
requested opportunity to respond, (DE 42), which the court
construed as a motion for leave to sur-reply, which motion
facts in the light most favorable to defendant may be
summarized as follows. Two inoperative elevators are located
on the premises of plaintiff's business in Fayetteville,
North Carolina. In an effort to have one of the two elevators
repaired, plaintiff requested a quote from defendant to
perform certain work, the scope of which the parties dispute.
inspecting the elevator, defendant, through its
representative, in conversations with two of plaintiff's
employees, explained that, for a fee, it was willing to
remove certain parts from the elevator and transport the
parts to an independent machine shop. Defendant's
representative explained that the machine shop would
troubleshoot the malfunctioning parts and quote a price to
complete all necessary repairs.
the foregoing conversations, defendant prepared a work order
(“11/8/2012 work order”), which constituted
defendant's offer to provide certain services in exchange
for $8, 428.00.
11/8/2012 work order provides, in relevant part:
will provide the necessary labor and material to perform the
following scope of work on (1) elevator:
• Remove the Generator and Exciter from the elevator
• Take the Generator and Exciter to be repaired.
• Replace Generator and Exciter back to elevator
**NOTE: This quote and work order is the first part of
troubleshooting the elevator. This quote is to perform only
labor and repairs stated above. After repairing the
generator, [defendant] will be able to troubleshoot further
to see any other problems the elevator might have. Any other
labor and repairs that need to be done outside the scope of
work stated above, will be quoted separately at that time.**
(DE 29-2 at 3). The 11/8/2012 work order called for
payment in two installments, requiring plaintiff to pay 75%
of the contract price up front and the remaining 25% after
defendant's full performance. On December 5, 2012,
plaintiff's owner, Uba, executed that 11/8/2012 work
order and paid 75% of the contract price in accord therewith.
to the 11/8/2012 work order, defendant removed the elevator
parts and transported them to a third-party repair facility
sometime in December 2012. Based upon this delivery,
defendant sent an invoice for the final 25% fee claiming that
it had discharged its duties under the 11/8/2012 work order.
Defendant also sent a second work order offering, for a fee
of $32, 305.00, “[r]einstallation of repaired
[g]enerator. [r]einstallation of repaired [e]xciter, [and to
t]ry to get elevator back to working/running service”
(“12/11/2013 work order”) (DE
29-6). In a series of emails following, plaintiff
denied that defendant discharged its duties under the
11/8/2012 work order. Nonetheless, plaintiff issued a check
to defendant for the remaining 25% fee. Plaintiff did not
enter into the 2/11/2013 work order. Consequently, defendant
performed no further work on plaintiff's elevator or
parts. This action followed.
Standard of Review
judgment is appropriate where “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 party seeking summary judgment
“bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of [the record] which it believes ...