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UBA, LLC v. Thyssenkrupp Elevator Corp.

United States District Court, E.D. North Carolina, Western Division

February 9, 2017

UBA, LLC, Plaintiff,


          LOUISE W. FLANAGAN United States District Judge.

         This 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.


         Plaintiff 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, & 1446.

         Following 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.

         Defendant 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”).

         Plaintiff 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 was allowed.


         The 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.

         After 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.

         After 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.

         The 11/8/2012 work order provides, in relevant part:

         [defendant] 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 machine.
• Take the Generator and Exciter to be repaired.
• Replace Generator and Exciter back to elevator machine.
**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).[1] 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.

         Pursuant 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).[2] 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.


         A. Standard of Review

         Summary 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 ...

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