MEMORANDUM OPINION
CHASANOW, District Judge.
Presently pending and ready for resolution in this case are the motion of Defendant RO Cruises, Inc. ("ROC")
I. Background
The following facts are uncontroverted or set forth in the light most favorable to Plaintiff. Odyssey is a small, 30 year-old travel agency based in Bethesda, Maryland and owned by Dan Patras ("Patras"). Odyssey's principal customer base is the Greek American community of the Washington metropolitan area. Odyssey organizes individual and group travel, including cruises, to Greece, the Carribean, and elsewhere. For most of its existence, Odyssey has conducted business with ROC and its predecessors-in-interest by arranging for travel by Odyssey's customers aboard cruises promoted by ROC.
Defendant ROC is a New York corporation that serves as the North American sales and marketing agent for a cruise ship operator, which Defendant contends is Royal Olympic Cruises, Ltd. ("ROC, Ltd."), based in Piraeus, Greece. Plaintiff, on the other hand, relies on documents filed by Royal Olympic Cruise Lines, Inc.
In March 1998, Odyssey received a brochure describing Caribbean and South American cruises for the upcoming 1998-99 winter season.
In the course of planning the "4th Grand Hellenic" group cruise, Odyssey had numerous communications with ROC, both in writing and orally. On May 29, 1998, Patras went to New York City to meet with Arne S. Egeland ("Egeland"), then ROC's Vice President of Sales and Marketing, to discuss the group cruise idea and to negotiate terms of ROC's promotional contribution. Following the meeting, Patras had further telephone conversations with Egeland and his staff about Odyssey's planned cruise. By letter dated July 20, 1998, Egeland confirmed certain details of the arrangements. See Paper no. 21, Ex. 5. Specifically, Egeland offered Odyssey special net fares for 4th Grand Hellenic group cruise members, complimentary cabins for members of the band hired by Odyssey, and financial contributions for promotion of the cruise. See id. ROC sent Odyssey a "Group Confirmation" contract, which in the "Remarks" section at the bottom of the page instructs the recipient to "[p]lease see enclosed Group Policy for terms/conditions."
Odyssey made substantial efforts to promote the 4th Grand Hellenic cruise aboard the Olympic Countess, and between May 1998 and October 30, 1998, devoted most of its efforts to promoting the cruise, foregoing other business opportunities. Odyssey's promotional activities included engaging a band, for which Odyssey entered
By letters dated March 23 and May 11, 1999, Odyssey submitted claims to ROC for its alleged expenses and losses arising from the cancellation of the Orinoco Cruise. ROC replied in a letter dated September 30, 1999 containing a counteroffer to pay Odyssey compensation of $5,700.70, which Odyssey rejected. Odyssey brought this action in the Circuit Court for Montgomery County, Maryland, and ROC removed it to this court on January 2, 2002. Odyssey alleges five counts against ROC arising from these events: (1) breach of contract; (2) promissory estoppel (in the alternative to breach of contract); (3) negligent misrepresentation; (4) intentional misrepresentation by concealment; and (5) constructive fraud (in the alternative to intentional misrepresentation by concealment). Odyssey seeks actual and consequential damages for these counts, as well as punitive damages for the intentional misrepresentation count. ROC seeks summary judgment on all counts.
II. Standard of Review
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Pulliam Inv. Co., 810 F.2d at 1282, citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure
In Celotex Corp., the Supreme Court stated:
Celotex Corp., All U.S. at 324, 106 S.Ct. 2548. However, "`a mere scintilla of evidence is not enough to create a fact issue.' " Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984), quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, All U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
III. Analysis
A. Motion for Summary Judgment
1. Breach of Contract (Count I)
Odyssey alleges that its dealings with ROC pertaining to the 4th Grand Hellenic group cruise gave rise to an agreement by ROC to make the Olympic Countess available for Odyssey's group during the Orinoco Cruise and to provide discounted rates and promotional assistance in exchange for Odyssey's bookings ("Agreement"). Plaintiff claims that ROC materially breached the Agreement by failing to give timely notice of its intention to cancel the Orinoco Cruise, by cancelling the Orinoco Cruise, and by failing to inform Odyssey that ROC had not obtained the required Certificate of Responsibility from the Federal Maritime Commission ("FMC Certificate") and that its plans for the Olympic Countess were uncertain.
Defendant ROC does not contest at this stage that an agreement was made to provide
Under Maryland law, an agent entering into a contract which fully discloses the fact that it is an agent and fully discloses the identity of its principal is not liable on the contract; the principal is the liable party. See, e.g., Hill v. County Concrete Co., Inc., 108 Md.App. 527, 672 A.2d 667 (Md.Ct.Spec.App.1996). Conversely, an agent who does not make such disclosures is liable on the contract. Id.
Plaintiff contends that there is a genuine issue of material fact as to whether ROC in fact fully disclosed the identity of its principal. Plaintiff argues that ROC either failed altogether to disclose that it was acting as agent for a principal, or disclosed as its principal merely the "Royal Olympic Cruises" trade name, which is not legally competent to act as a principal. Whether an agent completely fails to make the disclosures or makes partial or inaccurate disclosures, the result is the same. See Curtis G. Testerman Company v. Buck, 340 Md. 569, 575-78, 580, 667 A.2d 649, 652-53 (1995); Crosse v. Callis, 263 Md. 65, 73, 282 A.2d 86, 90 (1971). Moreover, an agent is held liable when the purported principal disclosed is nonexistent, fictitious, or legally incompetent. See Testerman, 340 Md. at 576-77, 667 A.2d at 653 (citation omitted).
To support its argument that ROC failed fully to disclose that it was acting as an agent for ROC, Ltd., Odyssey contends that in its dealings with ROC to plan the 4th Grand Hellenic group cruise and negotiate ROC's promotional contributions—including during Patras' meeting with Egeland—no one at ROC informed Patras that ROC was acting as agent for ROC, Ltd. or any other entity. See Paper no. 22, Ex. D (Patras Depo., HI 4-6). It notes that the July 20, 1998 letter recording the terms of ROC's promotional contributions sent by Egeland to Patras was written on ROC's letterhead, which at the bottom stated "RO Cruises, Inc. as agent for Royal Olympic Cruises." See Paper no. 21, Ex. 5. Plaintiff argues that even though the letterhead indicated that ROC was an agent, no legal entity was identified as the principal. Egeland's letter was supplemented by a fax message on July 24, 1998, sent on letterhead which read "Royal Olympic Cruises c/o Royal Olympic Cruises, Inc." Again, the correspondence bore only the trade name "Royal Olympic Cruises" and did not identify ROC, Ltd. as the principal.
Plaintiff further notes that the 1998-99 winter season brochure is emblazoned throughout with the trade name and logo of "Royal Olympic Cruises," including the brochure's outside back cover which, under the trade name, says "RO Cruises, Inc. as agent" in small print. No legal entity is disclosed on the outside back cover as principal. Only in fine print in the brochure's inside back cover is ROC, Ltd. identified as the cruise operator. No subsequent communications from ROC anywhere mentioned ROC, Ltd., let alone explicitly stated that ROC was acting as agent for ROC, Ltd. The Group Confirmation form received by Odyssey contained the heading "Royal Olympic Cruises" in large letters and in small print stated "c/o Sun Line Cruises, Inc." Subsequent forms confirming individual booking arrangements for Odyssey's group members bore the "Royal Olympic Cruises" logo and stated "RO Cruises, Inc. as agent." See Paper
The various pieces of correspondence from ROC to Odyssey, most importantly the July 20, 1998 letter setting forth the terms of the Agreement, make clear that ROC was acting in its capacity as an agent for "Royal Olympic Cruises" in the marketing of the Orinoco Cruise. There is no evidence that ROC attempted to hide the fact that it was acting as a sales agent for a cruise operator. The crucial issue, therefore, is whether the identity of the principal was disclosed to Odyssey. Odyssey argues that the principal was not disclosed because "Royal Olympic Cruises" is a nonexistent, legally incompetent entity, which cannot shield an agent from contract liability. See Testerman, 340 Md. at 576-77, 667 A.2d at 653. ROC argues that, on the contrary, "Royal Olympic Cruises" is at worst a misnomer that merely omitted the "Ltd." from the name of the principal.
In Testerman, the Court of Appeals ruled that the use of "Inc." instead of "Company" in a party's name on a contract was merely a misnomer and that the misnamed entity was a valid party to the contract. See id., 340 Md. at 576, 667 A.2d at 652. In so holding, the court stated that "`[a] mistake in setting out the name of a corporation in an instrument is not fatal where the identity of the corporation is apparent.'" Id. (citation omitted).
Although no Maryland case directly so holds, the weight of authority is that it is not sufficient to identify a principal by its trade name. For example, in In re Susan J. Vinales, 268 B.R. 749, 754 (Bankr. W.D.Va.2001), the court noted:
Similarly, in Crolley v. Haygood Contracting, Inc., 201 Ga.App. 700, 411 S.E.2d 907, 909 (1991), the court stated that
Defendant asserts that its fully disclosed principal was ROC, Ltd. However, nowhere is it expressly stated that ROC was acting as agent for ROC, Ltd.; rather, the letterhead on which the Agreement was printed, the winter 1998-99 brochure, and subsequent correspondence only identify "Royal Olympic Cruises" as the principal. According to the documents filed with the SEC, the corporation that uses the trade
2. Promissory Estoppel (Count II)
Odyssey alleges, in the alternative, a promissory estoppel claim against ROC. Odyssey claims that ROC made promises to it that the Olympic Countess would sail for the Orinoco Cruise and that it would provide special fares for Odyssey's group, complimentary cabins for Odyssey's band, and promotional assistance. Promissory estoppel is a quasi-contractual claim, which is an equitable remedy that permits recovery "`where, in fact, there is no contract, but where circumstances are such that justice warrants a recovery as though there had been a promise.'" Swedish Civil Aviation Admin, v. Project Management Enters., Inc., 190 F.Supp.2d 785, 792 (D.Md.2002) (internal citation omitted). "`[N]o quasi-contractual claim can arise when a contract exists ... concerning the same subject matter on which the quasi-contractual claim rests ....'" Id. (internal citations omitted).
Plaintiff stated in its opposition that it would voluntarily withdraw count II if allowed to proceed on count I, which, as discussed above, it will be permitted to do.
3. Negligent Misrepresentation (Count III)
Odyssey alleges that ROC negligently misrepresented the truth by making incomplete representations to Odyssey and failing to disclose material facts regarding the Orinoco Cruise. Specifically, Odyssey alleges that ROC represented that the Olympic Countess would be available for the 4th Grand Hellenic cruise during the Orinoco Cruise without revealing that its winter 1998-99 plans for the ship were uncertain and that it had not obtained the required FMC Certificate for the Orinoco Cruise. Under Maryland law, to prevail on a claim of negligent misrepresentation, a plaintiff must establish that: (1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement; (2) the defendant intends that his statement will be acted upon by the plaintiff; (3) the defendant has knowledge that the plaintiff will probably rely on the
It is well-settled Maryland law that a duty giving rise to a tort action must be independent of contractual obligations. See Mesmer v. Maryland Automobile Ins. Fund, 353 Md. 241, 725 A.2d 1053 (1999); Heckrotte v. Riddle, 224 Md. 591, 168 A.2d 879 (1961). "The mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that out of the contract itself, is not enough to sustain an action sounding in tort." Heckrotte, 224 Md. at 595, 168 A.2d at 882. The Court of Appeals recently held that "[a]s a general rule, when the failure to exercise due care creates a risk of economic loss only, and not the risk of personal injury, we have required an `intimate nexus' between the parties as a condition to the imposition of tort liability." Swinson, 360 Md. at 477, 758 A.2d at 1016 (citations omitted). See also Griesi 360 Md. at 12-13, 756 A.2d at 554 ("[fjor claims of economic loss due to negligent misrepresentation, the injured party must prove that the defendant owed him or her a duty of care by demonstrating an intimate nexus between them"), citing Jacques v. First Nat'l Bank of Maryland, 307 Md. 527, 534-35, 515 A.2d 756, 759-60 (1986).
Odyssey contends that ROC's duty arises from such a preexisting "intimate nexus" between ROC and Odyssey.
Several Maryland cases have found an intimate nexus where a special relationship was consummated during the course of pre-contractual negotiations. For example, in Griesi the plaintiff argued that he and the defendant had formed a special relationship during the course of employment negotiations which gave rise to defendant owing him a duty to exercising
Id. at 17, 756 A.2d at 556. The Court of Appeals similarly found in Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 331-38, 439 A.2d 534, 536-39 (1982), that the facts were sufficient for a jury to determine that an intimate nexus had been created during pre-contractual negotiations where defective financial statements were allegedly presented to the buyer of a car dealership. In Weisman, the Court of Appeals determined that there was an intimate nexus between the parties despite the defendant's argument that both parties were sophisticated businessmen, otherwise unfamiliar to one another, who simply engaged in arm's length discussions to negotiate a mutually advantageous agreement. Weisman, 312 Md. at 441, 540 A.2d at 789. See also Giant Food v. Ice King, 74 Md.App. 183, 536 A.2d 1182 (1988) (finding that a buyer of ice owed a duty to give correct information to the ice supplier because a "special relationship" existed between the parties by reason of communications extending over seven months).
Similar to the circumstances in these cases, Odyssey and ROC engaged in communications over many months for the purposes of negotiating a promotional assistance agreement and making plans for the 4th Grand Hellenic Cruise to take place aboard the Olympic Countess during the Orinoco Cruise. Moreover, the parties had a pre-existing relationship dating back nearly thirty years during which Odyssey booked many customers on cruises promoted by ROC and its predecessor companies. Like the defendant in Griesi ROC (and its principal) had exclusive control over material information necessary for Odyssey to understand the situation. For these reasons, the court is satisfied that Odyssey has provided evidence sufficient to establish that ROC owed Odyssey a duty of care independent of any contractual obligations entered into by ROC on behalf of ROC, Ltd. Accordingly, Defendant's motion for summary judgment on this count will be denied.
4. Intentional Misrepresentation by Concealment (Count IV)
Odyssey alleges that ROC intentionally concealed its uncertainty about the Olympic Countess's 1998-99 winter season and its failure to obtain the FMC Certificate, knowing that Odyssey was promoting the Orinoco Cruise, for the purposes of defrauding Odyssey. Odyssey alleges, in the alternative, that ROC's conduct deceived Odyssey, even if unintentionally.
In order to prevail on a claim of intentional misrepresentation by concealment, or fraudulent concealment, Plaintiff must prove the following elements: (1) Defendant owed Plaintiff a duty to disclose a material fact; (2) Defendant failed to disclose that fact; (3) Defendant intended to defraud or deceive Plaintiff; (4) Plaintiff took action in justifiable reliance on the concealment; and (5) Plaintiff
In its motion for summary judgment, ROC argues both that Odyssey has not presented credible evidence that ROC intentionally concealed information for the purpose of defrauding Odyssey and that Odyssey has not established a duty of disclosure to Odyssey. The court agrees with ROC that Plaintiff has not produced sufficient evidence that ROC intentionally concealed a material fact from Plaintiff for the purpose of defrauding it. Plaintiff does no more than surmise that ROC deliberately withheld information—concerning the lack of certificates and ROC's allegedly deteriorating financial conditions—with the intent to defraud. Plaintiff merely speculates that ROC's motive was to prevent travel agents from shying away from the Olympic Countess. These unsupported inferences are insufficient to prove that ROC acted with the intent to defraud Plaintiff.
Plaintiff also argues, however, that Defendant had a duty to disclose material facts and breached that duty. In the context of a claim of intentional misrepresentation by concealment, a duty to disclose arises where the defendant makes an active misstatement of fact, or only a partial or fragmentary statement of fact, which misleads the plaintiff to its injury. See Lubore v. RPM Associates, Inc., 109 Md.App. 312, 330-31, 674 A.2d 547, 556 (Md.Ct.Spec.App.1996); Walsh v. Edwards, 233 Md. 552, 557, 197 A.2d 424, 426-427 (1964).
Plaintiff argues that ROC's disclosures about the Olympic Countess's winter 1998-99 itinerary were partial and fragmentary because at the time the March 1998 brochure was published, the vessel lacked two required federal certificates, rendering the affirmative representations about the vessel's plan for the Orinoco Cruise materially misleading. The documents supplied by Plaintiff demonstrate that although the winter 1998-99 brochure advertised that the Olympic Countess would sail for the Orinoco Cruise, the vessel lacked the required certificates to do so, a fact which ROC did not disclose and does not deny. See Paper 22, Ex. L-O, Q, S. Thus, Plaintiff has demonstrated that ROC made a partial or fragmentary assertion of fact which misled Plaintiff toward injury and that, therefore, ROC owed it a duty to disclose. Although Plaintiffs evidence is insufficient to prove that ROC intentionally concealed information with the intent to defraud, Plaintiff has established that Defendant breached its duty to
5. Constructive Fraud (Count V)
Because the motion for summary judgment as to intentional misrepresentation by concealment has been denied, it may not be necessary to reach Plaintiffs alternative claim for constructive fraud. The court notes that, in any event, constructive fraud typically arises from a breach of duty where a fiduciary relationship exists. See Crawford v. Mindel, 57 Md.App. Ill, 120-21, 469 A.2d 454, 459 (Md.Ct. Spec.App.1984), citing Scheve v. McPherson, 44 Md.App. 398, 408 A.2d 1071 (1979). No such relationship exists here, and the motion for summary judgment will be granted.
6. Punitive Damages
Defendant has moved for summary judgment on Plaintiffs claim of $1 million in punitive damages for the alleged intentional misrepresentation by concealment. The Maryland Court of Appeals has imposed an onerous standard for plaintiffs seeking punitive damages. Under Maryland law, a plaintiff seeking punitive damages must prove "actual malice" on the part of the defendant, justifying an award of punitive damages based upon the "heinous nature of the defendant's tortious conduct ...." Owens-Illinois v. Zenobia, 325 Md. 420, 454, 460, 601 A.2d 633, 649-50, 652-53 (1992). The court stated in Zenobia that "punitive damages are awarded in an attempt to punish a defendant whose conduct is characterized by evil motive, intent to injure, or fraud, and to warn others contemplating similar conduct of the serious risk of monetary liability." Id. at 454, 601 A.2d at 650. Additionally, the court stated that "in any tort case a plaintiff must establish by clear and convincing evidence the basis for an award of punitive damages." Id. at 469, 601 A.2d at 657.
The Court of Appeals addressed the applicability of punitive damages in the fraud context in Ellerin v. Fairfax Savings, F.S.B., 337 Md. 216, 652 A.2d 1117 (1995). The court in Ellerin differentiated fraud cases where the defendant makes a false representation with the "deliberate wrongdoing and evil motive that has traditionally justified the award of punitive damages" from cases where the fraud is based on "reckless disregard" or "reckless indifference." See id., 337 Md. at 235, 652 A.2d at 1126. The court stated that `"reckless disregard' or `reckless indifference' concerning the truth of the representation falls short of the mens rea which is required to support an award of punitive damages." Id.
In the case at hand, as discussed above, Defendant's fraudulent concealment arose from a partial or fragmentary disclosure of facts, as opposed to an intentional concealment of facts for the purpose of defrauding Plaintiff. Thus, this action does not fall into the category of cases which support an award of punitive damages. Although Plaintiff tries to argue that ROC knowingly withheld information over the course of many months in a deliberate attempt to defraud Odyssey, this argument is based solely on inferences which cannot and do not support a finding of actual malice by clear and convincing evidence. Because Plaintiff has not succeeded in making the requisite showing for punitive damages, Defendant's motion for summary judgment as to punitive damages is granted.
B. Plaintiffs Conditional Motion for Leave to File an Amended Complaint
Odyssey filed a conditional motion for leave to file an amended complaint
Odyssey notes that FED. R. Crv. P. 15(a) favors the liberal amendment of pleadings "when justice so requires," and argues that justice requires the requested amendment. This argument is based on the contention that ROC, Ltd. and ROC, Inc. knew or should have known that the action would have been brought against them but for a mistake concerning their identity, and that no undue prejudice would result from amendment. Odyssey further contends that unless it is able to amend, it is likely to be forever barred from suing ROC, Ltd. or ROC, Inc. for the claims at issue because the applicable statutes of limitation have probably expired.
The modified scheduling order issued by this court set November 15, 2002 as the deadline for joinder of additional parties and amendment of pleadings.
In discussing the good cause standard, the court stated that
Rassoull, 209 F.R.D. at 373-74.
In the case at hand, like the plaintiff in Rassoull, Odyssey failed to seek the required modification of the scheduling order that is necessary before the court can address the merits of the motion for leave to amend the complaint. Odyssey's motion focuses solely on arguments for leave to amend the complaint, but does nothing to explain the tardiness of the motion itself or allege that the motion could not have been made in a timely fashion. As early as January 16, 2002, when ROC filed its answer containing affirmative defenses, Odyssey was on notice that ROC would argue that ROC, Ltd. was the proper defendant in this case. ROC reaffirmed this affirmative defense during the course of mediation held on August 28, 2002 before Judge Charles B. Day. See Paper no. 25, Ex. G (Unger Decl, 12). Even the captions on Odyssey's complaint and subsequent pleadings which read "Odyssey Travel Center, Inc. v. RO Cruises, Inc.... agent for Royal Olympic Cruises, Ltd. and Royal Olympic Cruise Lines, Inc." indicate that Plaintiff was aware long before it filed its motion for leave to amend the complaint that ROC was the agent of ROC, Ltd. Only when faced with ROC's motion for summary judgment did Odyssey seek conditionally to amend the complaint to join two parties which it has known about since the inception of the litigation.
Odyssey's sole explanation for filing the motion for leave to amend to join two additional parties after the November 15, 2002 deadline had passed is that its counsel "overlooked" the deadline. As the court noted in Rassoull, "[l]ack of diligence and carelessness are `hallmarks of failure to meet the good cause standard.'" 209 F.R.D. at 374. The tardiness is particularly egregious given that Odyssey was put on notice as early as January 2002 that ROC would assert that ROC, Ltd. was the proper defendant in the case. Thus, even had the motion for leave to amend not been mooted by the denial of Defendant's motion for summary judgment, Odyssey's lack of explanation for the tardiness of its submission would leave the court with no choice but to deny its motion to amend.
IV. Conclusion
For the foregoing reasons, Defendant's motion for summary judgment will be granted as to Counts II and V and as to the claim for punitive damages and will be denied as to Counts I, III and IV. Plaintiff's
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this 9th day of May, 2003, by the United States District Court for the District of Maryland, ODERED that:
1. Defendant's motion for summary judgment BE, and the same hereby IS, GRANTED as to Counts II (promissory estoppel) and V (constructive fraud) and as to the punitive damages claim, and DNIED as to Counts I (breach of contract), III (negligent misrepresentation) and IV (intentional misrepresentation by concealment);
2. JUDGMENT BE, and the same hereby IS, ENTERED in favor of Defendant RO Cruises, Inc. and against Plaintiff Odyssey Travel Center, Inc. with respect to Counts II and V and the claim for punitive damages;
3. Plaintiffs motion for leave to amend the complaint BE, and the same hereby IS, DENIED; and
4. The Clerk will transmit copies of the Memorandum Opinion and this Order to counsel for the parties.
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