United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Defendants', St. Marks
Avenue, LLC (“St. Marks”) and William Spivey
(collectively, the “St. Marks Defendants”),
Motion for Partial Summary Judgment (ECF No. 59) and
Plaintiff's, The Harry and Jeanette Weinberg Foundation,
Inc. (the “Foundation”), Motion for Partial
Summary Judgment (ECF No. 77). This action arises from an
agreement the Foundation entered into with Defendant
Communities Organized to Improve Life, Inc.
(“COIL”) to develop property located at 1200 West
Baltimore Street, Baltimore, Maryland 21223 (the
“Property”), COIL's principal address, and
COIL's subsequent sale of the Property to St. Marks.
Motions are ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons
outlined below, the Court will deny the St. Marks
Defendants' Motion without prejudice in part and grant
the Motion in part. The Court will also deny the
Foundation's Motion without prejudice and provide the
Foundation an opportunity to move for leave to file a second
The Foundation is a private Maryland organization that
provides grants to organizations that offer direct services
to disadvantaged and vulnerable individuals. (Am. Compl.
¶ 3, ECF No. 57). Smith is the Chief Executive Officer
and registered agent of COIL, a not-for-profit corporation
organized under Maryland law. (Id. ¶¶ 6,
7). This matter involves the sale of the Property, COIL's
principal address. (Id. ¶¶ 6, 18-21). On
February 7, 1996, the Foundation entered into an agreement
with COIL to develop the Property and granted COIL $675, 000
for its development (the “Agreement”).
(Id. ¶¶ 13, 14). The Agreement also gave
COIL the limited right to display “The Harry &
Jeanette Weinberg” (the “Sign”) on the
Property after construction ended; the Agreement required
COIL to display the Sign through the present day.
(Id. ¶ 16). The Agreement further stated that
COIL may not sell the property without prior written consent
from the Foundation. (Id. ¶ 15).
April 3, 2013, COIL sold the Property to St. Marks, a New
York company, for $1, 000, 000 without the Foundation's
consent (the “Sale”). (Id. ¶¶
4, 18-21). The same day, St. Marks leased the Property to
COIL (the “Lease”). (Defs.' Mot. Partial
Summ. J. Ex. D [“Lease”], ECF No. 59-2). On
November 13, 2014, the Foundation sent a letter to Smith and
Defendant Spivey, the sole member of St. Marks, stating that
it was ceasing any further engagement with COIL and
requesting that the Sign be removed from the exterior of the
Property. (Am. Compl. ¶¶ 21, 22). On January 12,
2016, counsel for the St. Marks Defendants sent the
Foundation a letter giving the Foundation permission to
remove the Sign from the Property (“January 2016
Letter”). (Defs.' Mot. Dismiss Ex. 1 [“Jan.
2016 Letter”], ECF No. 9-1). COIL occupied the Property
under the Lease until May 4, 2016, when the District Court
for Baltimore City, Maryland evicted COIL from the Property.
(Spivey Dec. ¶ 14, ECF No. 59-2). St. Marks then removed
the Sign from the Property. (Id. ¶ 15;
Defs.' Mot. Partial Summ. J. Exs. G & H, ECF No.
November 19, 2015, the Foundation sued the St. Marks
Defendants and Smith, alleging claims for False Endorsement
under Section 43(a) of the Lanham Act, 15 U.S.C. §
1125(a) (2012) (Count I), Breach of Contract (Count II),
Civil Conspiracy (Count III), and as to COIL and Smith only,
Accounting (Count IV). (Compl., ECF No. 1). On February 4,
2016, the St. Marks Defendants filed a Motion to Dismiss and
attached the January 2016 Letter as an exhibit in support of
their Motion. (ECF Nos. 8-9; ECF No. 9-1). The Court
eventually denied the Motion. (ECF No. 24).
December 12, 2016, the St. Marks Defendants filed a Motion
for Partial Summary Judgment against the Foundation. (ECF No.
59). On January 9, 2017, the Foundation filed a Response,
(ECF No. 66), and on February 3, 2017, the St. Marks
Defendants filed a Reply, (ECF No. 72). On February 9, 2017,
the Foundation filed a Motion for Partial Summary Judgment
against the St. Marks Defendants, COIL, and Smith. (ECF No.
77). The Motion was fully briefed as of April 10, 2017 as to
the St. Marks Defendants and Smith. (See ECF Nos. 97, 101,
123). COIL did not file a Response.
Standard of Review
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci v.
DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158-59 (1970)). Summary
judgment is proper when the movant demonstrates, through
“particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . admissions,
interrogatory answers, or other materials, ” 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), (c)(1)(A). Significantly, a
party must be able to present the materials it cites in
“a form that would be admissible in evidence, ”
Fed.R.Civ.P. 56(c)(2), and supporting affidavits and
declarations “must be made on personal knowledge”
and “set out facts that would be admissible in
evidence, ” Fed.R.Civ.P. 56(c)(4).
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). The nonmovant cannot create a genuine
dispute of material fact “through mere speculation or
the building of one inference upon another.” Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (citation omitted).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at 248; see
also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d
459, 465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249
F.3d 259, 265 (4th Cir. 2001)). Whether a fact is considered
to be “material” is determined by the substantive
law, and “[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson, 477
U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265. A
“genuine” dispute concerning a
“material” fact arises when the evidence is
sufficient to allow a reasonable jury to return a verdict in
the nonmoving party's favor. Anderson, 477 U.S. at 248.
If the nonmovant has failed to make a sufficient showing on
an essential element of her case where she has the burden of
proof, “there can be ‘no genuine [dispute] as to
any material fact, ' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).