MEMORANDUM OPINION AND ORDER

WILLIAM CASSADY, Magistrate Judge

This matter is before the Court on the parties' motions for summary judgment:

• Defendant Leslie Cunningham's Motion for Partial Summary Judgment, proposed order of judgment, evidentiary submission, narrative statement of undisputed material facts and brief in support, and suggested determinations of undisputed facts and conclusions of law (Docs. 98, 99, 100, 101, and 102), all filed December 17, 2010; plaintiffs' response to Mr. Cunningham's motion (Doc. 111), filed January 24, 2011; and Mr. Cunningham's reply in support of his motion (Doc. 114), filed February 7, 2011; and

• Plaintiffs' Motion for Summary Judgment as to Defendant's Counterclaims and Amended Counterclaims and brief and evidentiary submission in support (Docs. 106, 107, and 108), all filed December 24, 2010; Mr. Cunningham's response to plaintiffs' motion (Doc. 112), filed January 24, 2011; and plaintiffs' reply to Mr. Cunningham's response (Doc. 113), filed February 7, 2011.

Upon consideration of the foregoing pleadings and all other relevant pleadings in the file, and for the reasons that follow, the Court DENIES Mr. Cunningham's motion for partial summary judgment (Doc. 98) in its entirety and GRANTS plaintiffs' motion for summary judgment as to Mr. Cunningham's counterclaims (Doc. 106) in its entirety.

PROCEDURAL BACKGROUND

SUMMARY JUDGMENT STANDARD

It is well-established that summary judgment is proper — consistent with Federal Rule of Civil Procedure 56(c) — "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." [Celotex, 477 U.S.] at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing, or pointing out to, the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-324.

Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).

THE PVPA

Before turning to the pending motions, it is helpful to understand the purpose and structure of the PVPA, the statute at the heart of this dispute. The objective of the PVPA is to provide

patent protection to breeders of certain plant varieties, who may acquire "the right . . . to exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it, or using it in producing . . . a hybrid or different variety therefrom" for a period of twenty years.

"As can be seen from the above language, the PVPA gives the holder of a PVP Certificate rather broad exclusive rights," which (prior to 1994) were subject to "one express, broad exemption" — the allowance of "certain `farmer-to-farmer' sales of excess saved seed" pursuant to § 2543. Delta Pine Land Co. v. Sinkers Corp., 177 F.3d 1343, 1347 (Fed. Cir. 1999). This exemption was eliminated in a 1994 amendment to the PVPA, which made the Act "consistent with the International Convention for the Protection of New Varieties of Plants of March 19, 1991[, the UPOV Convention], to which the United States is a signatory." H.R. REP. NO. 103-699, at 1 (1994), reprinted in 1994 U.S.C.C.A.N. 2423, 2423.

DISCUSSION

Mr. Cunningham requests summary judgment only as to certain paragraphs — 51, 53.a, 53.b, and 53.d (only as to the allegations concerning the purported sale of wheat seed in that paragraph) — in Count I of the Complaint (Doc. 1 at 16-18), which seeks damages for infringement of the PVPA, pursuant to § 2541(a). As Mr. Cunningham explains, "the purpose of [his] motion is very simple. [He] believes that, even accepting everything the plaintiffs allege in their Complaint as true, that he is entitled to partial summary judgment as to the purported transaction involving [Zelotis] Wofford," an investigator employed by Mr. Nolan, counsel for plaintiffs (Doc. 101 at 2), asserting that that transaction "did not constitute an `infringement' of the plaintiffs' rights under the [PVPA]" ( id. at 6.), because

Mr. Wofford never intended to replant the wheat seed he purportedly purchased from Cunningham. He was not a farmer or engaged in farming activities at that time. Rather, at the time of the transaction, Mr. Wofford was a private investigator tasked with attempting to entice farmers into selling him protected wheat seed. Indeed, Mr. Wofford apparently destroyed a large majority of wheat seed he purportedly purchased from Cunningham. Therefore, the Wofford/Nolan transaction did not represent a sale of protected wheat for propagation (or replanting).

( Id. at 7; see also Doc. 114 at 2 (in which Mr. Cunningham asserts that the "one alleged sale to Wofford does not constitute a violation of the PVPA" because "the PVPA prohibits the actions delineated in 7 U.S.C. § 2541(a)(1)-(10) [] only if those actions are done for `replanting purposes.'") (quoting Asgrow, 513 U.S. at 181).)

In response, plaintiffs contend that Mr. Cunningham "began his infringement when he offered to sell, conditioned, stored and agreed to sell the subject wheat to Mr. Wofford when Mr. Wofford made it clear he intended to reproduce the seed provided" and "continued when the sale was completed" (Doc. 111 at 7), citing the transcripts of purported conversations between Mr. Cunningham and Mr. Wofford.

In a purported November 14, 2008 telephone conversation between Mr. Wofford and Mr. Cunningham, Mr. Wofford asked Mr. Cunningham whether the wheat will "come up" — which, plaintiffs insist, gave Mr. Cunningham notice that Mr. Wofford's intent was to plant the protected seed — to which Mr. Cunningham replied, "It'll come up." (Doc. 111-1, lines 24-26.) Plaintiffs further insist that a purported November 17, 2008 in-person conversation between Mr. Cunningham and Mr. Wofford indicates that Mr. Cunningham knew he was selling the protected seed for replanting by Mr. Wofford. ( See Doc. 111-2, lines 189-200.)

Plaintiffs, moreover, disagree with Mr. Cunningham's view as to the scope of protection under the PVPA. ( See id. at 8-9.) Where Mr. Cunningham asserts that the PVPA's "intent, with regard to the sale of protected seed, is to prevent someone from purchasing the seed, planting the seed, harvesting the seed, and then selling the seed to a third party for planting purposes thus providing the `owner' a royalty the `owner' would have realized had the `owner' sold his, her or its protected variety directly to the third party buyer" (Doc. 101 at 7-8), plaintiffs insist that the PVPA "is not designed to simply protect the royalty lost on a single sale, but the loss of future sales as well." (Doc. 111 at 9.)

b. Consideration of unauthenticated transcripts

The Court initially must determine whether, for purposes of ruling on Mr. Cunningham's motion, it can consider Exhibits A (Doc. 111-1) and B (Doc. 111-2) to plaintiff's response — unauthenticated transcripts of the alleged November 14, 2008, telephone conversation between, and the alleged November 17, 2008, in-person meeting involving, Mr. Wofford and Mr. Cunningham. While Mr. Cunningham contends that the transcripts "constitute inadmissible hearsay" (Doc. 114 at 1), and cites Corwin v. Walt Disney Co., 475 F.3d 1239 (11th Cir. 2007), for the unassailable proposition that "inadmissible evidence cannot be used to avoid summary judgment," id. at 1249, at summary judgment, "the district court may consider a hearsay statement if the statement could be reduced to admissible form at trial." Hill v. Manning, 236 F. Supp. 2d 1292, 1297 (M.D. Ala. 2002) (citing Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999)); see also id. ("Stated differently, otherwise admissible evidence may be submitted in inadmissible form at the summary judgment stage.") (citing McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996)); see also Hosea v. Langley, No. Civ.A. 04-0605-WS-C, 2006 WL 314454, at *8 (S.D. Ala. Feb. 8, 2006) ("[T]he law is clear that `inadmissible hearsay may sometimes be considered by a court when ruling on a summary judgment motion,' provided that such hearsay is reducible to admissible form at trial.") (quoting Pritchard v. Southern Co. Svcs., 92 F.3d 1130, 1135 (11th Cir. 1996)). Because the transcripts may be authenticated by Mr. Wofford at trial, and are otherwise admissible as statements of a party opponent (Mr. Cunningham), the Court may consider them at this time. As the court in Gruppo v. Fedex Freight Systems, Inc., Civil Action No. 05-cv-02370-MSK-MEH, 2007 WL 1964080 (D. Colo. June 29, 2007) — considering the defendants' objection to the court's consideration of a transcript on the grounds that the plaintiff failed to establish the authenticity of the transcription — explained:

A party opposing summary judgment is not required to come forward with evidence in a form that would be admissible at trial, so long as the content or the substance of the evidence presented is admissible. [Because t]he transcript purports to be a record of a recorded conversation [involving at least one of the parties], the [parties'] statements would likely be admissible under Fed.R.Evid. 801(d)(2). The fact that this evidence is currently in a form that would likely not be admissible at trial does not prevent the Court from considering it at this stage of the proceedings.

c. Analysis

Mr. Cunningham's motion for partial summary judgment in essence seeks a ruling from this Court that the sole transaction at issue in this case cannot be the basis for a finding of infringement because that "transaction did not represent a sale of protected wheat for propagation (or replanting)." (Doc. 101 at 7.) Such a ruling — as Mr. Cunningham acknowledges (Doc. 101 at 2) — does not turn on material facts in dispute, but on statutory interpretation and legislative intent. See, e.g., Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 317 F. Supp. 2d 1188, 1191 (C.D. Cal. 2004) ("When there are no facts in dispute and the only issue raised is a question of statutory interpretation, for example the legislative intent behind a given law, it is appropriate to decide the issue by summary judgment.") (citing Edwards v. Aguillard, 482 U.S. 578, 594 (1987)).

As indicated above, the foundation for this requirement — that to violate the PVPA, the purchaser of the protected seed must replant it or have the intention of doing so, which is a requirement that does not explicitly appear in the infringement provision of the act, § 2541(a) — appears to be language from the United States Supreme Court's 1995 Asgrow decision — the PVPA "protects owners of novel seed varieties against unauthorized sales of their seed for replanting purposes." 513 U.S. at 181 (emphasis added). In Asgrow, the Supreme Court examined the then-available exemption to the PVPA that "allow[ed] farmers to make some sales of protected variety seed to other farmers," id. — so-called "brown bag sales" under the "saved seed exemption." Prior to its 1994 amendment, see discussion supra, § 2543 included language providing that

without regard to the provisions of section 2541[(a)](3) of this title it shall not infringe any right hereunder for a person, whose primary farming occupation is the growing of crops for sale for other than reproductive purposes, to sell such saved seed to other persons so engaged, for reproductive purposes, provided such sale is in compliance with such State laws governing the sale of seed as may be applicable.

The Court determined that "saved seed" in the provision meant "seed saved for replanting . . . not merely crop that is stored for later market sale or use as fooder." Asgrow, 513 U.S. at 188-89 (emphasis in original). The Court further noted — importantly, for purposes of this motion — that

[a]s a practical matter, since § 2541[(a)](1) prohibits all unauthorized transfer of title to, or possession of, the protected variety, this means that the only seed that can be sold under the proviso is seed that has been saved by the farmer to replant his own acreage.

This Court is not prepared to grant Mr. Cunningham judgment as a matter of law as to his theory — which he admits "may be novel and/or [] contrary to existing authority" (Doc. 101 at 5 n. 8) — that to infringe the PVPA, it must be shown that the protected seed sold was intended to be replanted, see Cook v. United States, 37 Fed. Cl. 435, 446-47 (1997) (Where a "[d]efendant's motion for summary judgment rests on a contrary interpretation of the law[, it] must be denied."), because, in the very opinion in which the Supreme Court noted that the PVPA "protects owners of novel seed varieties against unauthorized sales of their seed for replanting purposes," Asgrow, 513 U.S. at 181, the Court also observed that § 2541(a)(1) of the PVPA "prohibits all unauthorized transfer of title to, or possession of, the protected variety." Id. at 191 (emphasis added); cf. Delta Pine Land Co., 177 F.3d at 1347 (noting that the "PVPA gives the holder if a PVP Certificate rather broad exclusive rights") (emphasis added). Thus, the most logical reading of the Supreme Court's use of "for replanting purposes" at the beginning of its opinion is not as a broad limitation on the protection the PVPA affords, but as the Court setting the stage for its later discussion of the then-applicable "broad exemption," Delta Pine Land Co., 177 F.3d at 1347, to the infringement provision — "brown bag sales" under the "saved seed exemption," § 2543 — the extent of which turned on determining that "saved seed" in the provision meant "seed saved for replanting" by that farmer. Asgrow, 513 U.S. at 188 (emphasis in original); see id. at 191 (noting that because § 2541(a)(1) "prohibits all unauthorized transfer of title to, or possession of, the protected variety, . . . the only seed that can be sold under [the then applicable "farmer-to-farmer" exemption was] seed that has been saved by the farmer to replant his own acreage").

This reading of Asgrow not only honors a basic tenant of statutory interpretation that "when interpreting a statute, it is necessary to give meaning to all its words `so that no words shall be discarded as being meaningless, redundant, or mere surplusage,'" United States v. Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir. 2003) (quoting United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir. 1991)), it comports with the fact that (1) the infringement provision of the Act fails to mention "replanting" as a prerequisite to infringement and (2) the Court's independent review of the legislative history of the Act — specifically the 1994 amendment to the Act, which broadened the already "rather broad exclusive rights" given to PVP Certificate holders by eliminating "farmer-to-farmer" sales of excess saved seed — provided no indication that an intent to "replant" was ever considered to be a prerequisite to infringement. Compare Asgrow, 513 U.S. at 191 (noting that because § 2541(a)(1) "prohibits all unauthorized transfer of title to, or possession of, the protected variety") (emphasis added) with In re Turner, Nos. NC-07-1306-PaMkMc, 02-46268, 2008 WL 8462952, at *6 (B.A.P. 9th Cir. Mar. 5, 2008) (interpreting § 541(a)(1) of the Bankruptcy Code — property of the estate includes "all legal or equitable interests . . ." — and concluding that its "expansive language is not ambiguous — all means all ") (second emphasis added).

If the Court, moreover, were to adopt Mr. Cunningham's interpretation of the PVPA, it would then consider the transcripts — which may be admissible evidence at trial, see, e.g., Gruppo, 2007 WL 1964080, at *5 n. 4 — and conclude there is at least evidence ( see Doc. 111-2, lines 189-200) that could be interpreted by a jury to show that Mr. Cunningham knew he was selling the protected seed for replanting by Mr. Wofford. See Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir. 1998) ("If reasonable persons could differ in their interpretation of the evidence, the motion should be denied. Only when the facts and the reasonable inferences are such that a reasonable juror could not reach a contrary verdict may the district court properly grant a motion for judgment as a matter of law.") (citation omitted); cf. Chatman v. Slagle, 107 F.3d 380, 381-82 (6th Cir. 1997) (affirming district court's decision not to grant defendants' repeated requests for judgment as a matter of law as to their "novel theory" regarding the inevitable discovery doctrine exception to the exclusionary rule and its impact on plaintiff's ability to bring a § 1983 suit against the defendant state troopers, stating that although "[t]he district court accepted this creative theory[,]" it "held that the question of whether or not the officers would inevitably have discovered the cocaine was a question of fact for the jury to decide").

II. Plaintiffs' Motion for Summary Judgment as to Defendant's Counterclaims

a. Parties' contentions

Mr. Cunningham filed an "Answer and Counter-Claim" (Doc. 15) on December 10, 2009, asserting a "complaint for abuse of process." ( See id. at 4; see also Doc. 108-1.) The concluding paragraph of Mr. Cunningham's counterclaim states that he "also claims punitive damages, attorney's fees, other litigation expenses and costs in this behalf expended, in that Plaintiffs consciously or deliberately engaged in oppression, fraud, wantonness or malice." ( Id. at ¶ 18 (emphasis added).) On December 19, 2009, Mr. Cunningham filed a "First Amended Counter-Claim" (Doc. 16), adding an "entrapment" allegation. ( See id. at ¶ 19.)

Plaintiffs move for summary judgment on both the counterclaim and amended counterclaim ( see generally Docs. 106, 107, 108), asserting that "Defendants failed to comply with Fed.R.Civ.P. 12(b)(6), Fed.R.Civ.P. 9(b), Fed.R.Civ.P. 9(c), Fed.R.Civ.P. 9(g)." (Doc. 106 at 11.) In response, Mr. Cunningham concedes both his explicit counterclaims for abuse of process and entrapment (Doc. 112 at 1-2), but states that "Plaintiffs, however, have not moved and are not entitled to summary judgment as to Cunningham's claim for fraud," ( id. at 2), asserting, first, that his counterclaim and amended counterclaim "alleged that Plaintiffs' agent made misrepresentations to Cunningham and that Cunningham relied on those misrepresentations" ( id.), and second — moreover — plaintiffs recognized that a fraud claim exists because their motion cites Rules 9(b), 9(c), and 9(g). ( See id. (citing Doc. 106 at 11).) In reply, plaintiffs assert that Mr. Cunningham's response is merely an "attempt[] to breathe life into [his] counterclaims by asserting a fraud claim" (Doc. 113 at 2), and explain their reference to Rule 9 by pointing to pages 7 and 8 of their brief in support of their motion:

In the very least, the counterclaimants have not complied with notice pleading requirements under either Fed.R.Civ.P. 12(b)(6) by not setting forth notice of a claim under which relief can be granted. Along the same lines, they have not stated any act with specificity as required by Fed.R.Civ.P. 9(b), nor have they satisfied the requirement that a "condition precedent" be clearly set forth as required by Fed.R.Civ.P. 9(c).

(Doc. 113 at 2-3 (quoting Doc. 107 at 7-8).)

b. Analysis

Because, first, Mr. Cunningham has conceded his explicit counterclaims for abuse of process and entrapment (Doc. 112 at 1-2), and second, the Court determines that Mr. Cunningham has not alleged a claim for fraud because his counterclaim and amended counterclaim failed to place plaintiffs on notice as to the existence of a cause of action for fraud, it finds that plaintiffs are entitled to summary judgment as to all counterclaims asserted by Mr. Cunningham.

Mr. Cunningham cites Nolan Bros., Inc. v. United States for Use of Fox Bros. Construction Co., 266 F.2d 143 (10th Cir. 1959), in support of his argument that the use of "the word fraud or the word fraudulent" is "not indispensably necessary to the pleading of a cause of action [for fraud]." (Doc. 112 at 2 (quoting 266 F.2d. at 145).) He is correct. And as the court in Nolan Bros. further explained, "Rule 9(b) [] does not require a general express allegation of fraud in which the word fraud is used categorically. Instead, it merely requires that the circumstances constituting fraud shall be pleaded with particularity." 266 F.2d. at 145-46 (citation omitted). Thus, to establish that a claim for fraud exists, this Court must conduct an analysis of the statements alleged by Mr. Cunningham in his counterclaim as amended to determine if the elements for such a cause of action exist. See Minger v. Green, 239 F.3d 793, 800 (6th Cir. 2001).

A court "must look beyond labels to the facts alleged in the complaint." Id. And "[a]ll that is required is that the pleaded claim afford "the opposing party fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved." Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995) (quoting Burlington Indus, Inc. v. Milliken Co., 690 F.2d 380, 390 (4th Cir. 1982)) (emphasis added). For example, in Labram, the Fourth Circuit vacated and remanded a district court's decision dismissing a case for failure to state a claim on which relief could be granted. See id. In that case, the applicable state law — Nevada's — did not recognize a separate tort for plaintiff's labeled count, "sexual molestation," but she pled all of the elements of a battery claim. See id. The Fourth Circuit, accordingly, held that dismissing the case based on plaintiff's failure to properly label the sexual molestation claim as one for battery was "not warranted so long as any needed correction of legal theory will not prejudice the opposing party." Id. (emphasis added); see also Abercrombie Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 632 n. 8 (6th Cir. 2002) (if construing a pleading liberally rather than technically "results in no prejudice to the opposing party, discarding labels in an inartfully drafted complaint in favor of the complaint's reasonable meaning . . . comports with the Federal Rules' intent and serves the ends of justice") (citations omitted and emphasis added); cf. Nova Design Build, Inc. v. Grace Hotels, LLC, No. 08 C 2855, 2009 WL 799490, at *3 (N.D. Ill. Mar. 25, 2009) (denying motion to dismiss a counterclaim plaintiffs argued was "not clearly pled and lack[ed] factual details" because defendants "provided sufficient facts to put Plaintiffs on notice of the legal basis for the Counterclaim brought against Plaintiffs").

Here, plaintiffs are prejudiced by Mr. Cunningham's current counsel's effort to resurrect his previous counsel's flawed attempt to assert cognizable counterclaims. Put simply, Mr. Cunningham's new "belief [he was] not required to plead legal theories is belied by the fact [he] advanced [a] specific legal theor[y]" in his counterclaim — for abuse of process. Black v. Rhone-Poulenc, Inc., 172 F.R.D. 188, 192 n. 9 (S.D. W. Va. 1997); compare id. (refusing to recognize that an implied nuisance claim existed in light of the fact that the complaint was very specific as to other causes of action — "Complaint at `Count One' (alleging strict liability and citing Restatement (Second) of Torts § 519); id. `Count Two' (negligence); id. `Count Four' (medical monitoring") with Doc. 15 at 4 (Mr. Cunningham's counterclaim is prominently labeled as a "Complaint for Abuse of Process"). As the court in Black concluded, it is "dissembling for [parties] to have asserted some very explicit claims but, for reasons sufficient to themselves, failed to plead others which they now find urgently necessary." 172 F.R.D. at 192 n. 9.

The Court also finds support for its position in Kennedy v. Venrock Associates, 348 F.3d 584, 594 (7th Cir. 2003), in which the Seventh Circuit-stating that their "conclusion is supported by Nolan Bros., Inc. v. United States for Use of Fox Bros. Construction Co., 266 F.2d 143, 145-46 (10th Cir. 1959)," relied on by Mr. Cunningham — held that "[a] principal purpose of requiring that fraud be pleaded with particularity is, by establishing this rather slight obstacle to loose charges of fraud, to protect individuals and businesses from privileged libel (privileged because it is contained in a pleading)," and "[t]hat purpose is thwarted by the filing of a stealth complaint in which allegations of fraud are avoided only to be added later by way of brief or other filing. Such an end run should not be permitted." Id. at 594 (citations omitted and emphasis added).

CONCLUSION