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Mall at Potomac Mills, LLC v. Control Building Services, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

January 22, 2015

MALL AT POTOMAC MILLS, LLC, Plaintiff,
v.
CONTROL BUILDING SERVICES, INC., Defendant.

ENTRY ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

TANYA WALTON PRATT, District Judge.

This matter is before the Court on Plaintiff Mall at Potomac Mills, LLC's ("Potomac Mills") Motion for Summary Judgment (Filing No. 33). After validly terminating its service agreement with Control Building Services, Inc. ("CBS"), Potomac Mills inadvertently paid CBS unearned payments totaling $305, 947.88, to which CBS was not entitled. Potomac Mills requested return of the inadvertent, unearned payments, and CBS refused. Potomac Mills then initiated this lawsuit and moved for summary judgment, asserting that there is no dispute that CBS is not entitled to retain the $305, 947.88, and Potomac Mills is entitled to recoup the payments. For the following reasons, Potomac Mills's Motion for Summary Judgment is GRANTED.

I. BACKGROUND

Potomac Mills and CBS entered into a contract effective March 1, 2009, whereby CBS was to provide janitorial services to Potomac Mills at its mall in Virginia through the end of 2009. For providing the janitorial services, CBS was to be paid $805, 738.10, payable in ten monthly installments of $80, 573.81. CBS paid Potomac Mills $4, 086.84 each month as rent for the use of physical space at the mall in Virginia. The parties referred to this rent as "Minimum Rent, " and the amount of rent was subtracted from the monthly payments made by Potomac Mills to CBS. Because of this rent payment reduction, the net monthly payment from Potomac Mills to CBS was $76, 486.97.

Pursuant to a renewal provision in the parties' contract, the contract for janitorial services was automatically renewed on the same terms through August 31, 2012. Potomac Mills exercised its contractual right to terminate the contract by giving a thirty-day written notice to CBS. This written termination notice was given on August 1, 2012, and the termination was effective August 31, 2012. Because of the termination, CBS stopped providing janitorial services to Potomac Mills on August 31, 2012.

Even though CBS had stopped providing janitorial services to Potomac Mills in August, it received and retained payments from Potomac Mills for the months of September, October, November, and December 2012, in the amount of $76, 486.97 per month, totaling $305, 947.88. Potomac Mills was unaware that these inadvertent and unearned payments were being made to CBS. When it discovered the erroneous payments, Potomac Mills ceased further payments and demanded that CBS return the funds. Despite Potomac Mills's requests, CBS refused to return the unearned payments.

The contract specified that CBS was "entitled to receive payment only for services approved and agreed upon by [Potomac Mills] in writing, in advance, and actually performed and rendered according to the terms and conditions herein provided." (Filing No. 1-1 at 12, paragraph 9.) The contract was properly terminated in August 2012. No services were approved and agreed upon by Potomac Mills in writing for the months of September, October, November, and December 2012. CBS did not actually perform or render any services to Potomac Mills during these four months. Thus, CBS was not entitled to receive any payments during the four months.

The contract between the parties also provided for an award of attorney fees and costs to Potomac Mills in the event of a dispute arising out of the contract. "If [Potomac Mills] is required to bring or defend any action arising out of this Agreement, or to enforce or defend the provisions hereof, [Potomac Mills] shall recover its reasonable attorney's fees and costs from [CBS]." (Filing No. 1-1 at 12, paragraph 11.)

Because of CBS's refusal to return the unearned payments, on December 2, 2013, Potomac Mills filed a complaint against CBS in the Marion Superior Court (Indiana). The complaint asserts claims for breach of contract, restitution for payments made under a mistake of fact, "money had and received, " and unjust enrichment. CBS was served on December 23, 2013. CBS then removed the action to this Court on January 21, 2014, based on diversity jurisdiction.

On February 14, 2014, CBS filed its answer to Potomac Mills's complaint, and the parties filed their joint Case Management Plan on April 15, 2014. Shortly thereafter, counsel to CBS filed a motion to withdraw its attorney appearance on behalf of CBS (Filing No. 26). The Court granted the motion to withdraw and ordered CBS to secure new counsel by July 17, 2014 (Filing No. 27). As a corporation, CBS cannot represent itself in federal court. CBS did not secure new counsel by July 17, 2014, as required by the Court, and still has not retained counsel. Additionally, CBS failed to file its preliminary witness and exhibit lists as required by the Case Management Plan and failed to appear for the Court's August 11, 2014 status conference. CBS also failed to file a response brief or designate evidence in opposition to Potomac Mills's Motion for Summary Judgment.

II. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews "the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Hemsworth, 476 F.3d at 490 (citation omitted).

"In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (internal citations and quotation marks omitted). "[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (internal citations and quotation marks omitted).

Furthermore, Local Rule 56-1(b) requires the non-movant to include a "Statement of Material Facts in Dispute" that "identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment." Local Rule 56-1(f)(1)(A) states that the Court will assume that the "facts as claimed and supported by admissible evidence by the movant are admitted without controversy except to the extent that... the ...


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