United States District Court, D. Maryland
AMERICAN COMPUTER DEVELOPMENT, INC. Plaintiff,
McKINLEY-ROSS CORPORATION, Defendant.
ELLEN L. HOLLANDER, District Judge.
American Computer Development, Inc. ("ACDI"), plaintiff, has filed suit against McKinley-Ross Corporation ("McKinley"), defendant, alleging breach of contract and, in the alternative, unjust enrichment. ECF 1. Plaintiff's complaint is supported by several exhibits.
According to ACDI, the parties entered into a contract by which ACDI provided engineering services and goods at the request of McKinley, for which McKinley failed to pay the sums due and owing. Id. Plaintiff claims that, as a proximate result of McKinley's breach of contract, ACDI suffered damages in the amount of $135, 512.85. Id. In addition, plaintiff seeks prejudgment interest as well as reasonable attorneys' fees. Id.
McKinley filed an answer to the complaint. See ECF 8. Thereafter, on September 19, 2014, McKinley's attorneys sought leave to withdraw from their representation of defendant. See ECF 17; ECF 18; ECF 20. On September 22, 2014, the Court issued an Order to McKinley, advising of its need to secure replacement counsel. See ECF 19.
On October 27, 2014, the Court granted the motion to withdraw. See ECF 21. However, no attorney has ever entered an appearance for McKinley, notwithstanding that a corporation may appear in federal court only through licensed counsel. See Rowland v. California Men's Colony, 506 U.S. 194, 201 (1993); Local Rule 101.1a ("All parties other than individuals must be represented by counsel.").
Now pending is ACDI's Motion for Summary Judgment ("Motion, " ECF 24), filed on December 2, 2014, supported by a legal memorandum and several exhibits, as well as the Affidavit of Michael Kish, Chief Financial Officer for ACDI (ECF 24-1), and the Affidavit of Jeffrey Goldstein, Esquire, counsel for ACDI (ECF 24-7). No response has been filed as to the Motion and the time to do so has long expired.
I. Factual Summary
The record reflects that the initial request for the purchase of services was set forth in an email of April 27, 2012, between Vice President of Sales and Marketing for ACDI, Nicole Moreland, and the President of McKinley, Millard Minton. See ECF 24-2. On June 28, 2012, ACDI sent McKinley an invoice in the amount of $20, 800 for the requested engineering services. See ECF 24-3. On the reverse side of the invoice of June 28, 2012, is a document titled "Terms and Conditions of Sales." See ECF 24-4.
ECF 24-5 consists of numerous invoices beginning with June 28, 2012, and continuing through January 27, 2014. According to plaintiff, each invoice was sent to defendant with the same "Terms and Conditions." ECF 24-1 ¶¶ 14, 15. And, the record is devoid of any evidence of any objection by defendant to these terms and conditions. Therefore, there is no factual basis to conclude that these terms and conditions were refuted, disputed, or challenged by McKinley. To the contrary, and at the very least, it would appear that the terms and conditions were impliedly accepted.
Pursuant to ¶ 3 of the Terms and Conditions, the balance due on unpaid invoices accrued interest at the rate 11/2% per month, or 18% per year. See ECF 24-4.
Paragraph 6 of the Terms and Conditions states, in part: "Upon any breach by Customer [i.e., defendant] of these terms and conditions, ACDI will have all rights and remedies of the secured parties under applicable law, which rights and remedies will be cumulative and not exclusive. Customer is responsible for all costs and expenses incurred by ACDI in collecting any sum owing by Customer (which may include, but are not limited to, collection agency and reasonable attorneys' fees)." Id.
Additional facts are included in the Discussion.
II. Standard of Review
Summary judgment is governed by Fed.R.Civ.P. 56(a). It provides, in part: "The court shall grant summary judgment 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." See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must demonstrate that there are disputes of material fact so as to preclude the award of summary ...