Opinion
98 Civ. 8998 (JFK)
July 3, 2001
For Plaintiffs: LUM, DANZIS, DRASCO, POSITAN KLEINBERG New York, New York Of Counsel: Dennis J. Drasco, Esq.
BURR FORMAN LLP Atlanta, Georgia Of Counsel: James B. Rhoads, Esq. John O'Shea Sullivan, Esq.
For Defendant: ORRICK, HERRINGTON SUTCLIFFE LLP New York, New York Of Counsel: Barbara Moses, Esq. Robert M. Isackson, Esq. Robert S. Whitman, Esq. Karine C. M. Stone, Esq.
OPINION and ORDER
Before the Court are the parties' cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons that follow, the Defendant American Express ("Amex") Travel Related Services Company's ("TRS") motion is granted in part, and the Plaintiffs' motion is denied. Any trial in this case will be limited to the Plaintiffs' third claim, for restitution under a theory of quantum meruit.
BACKGROUND
The Plaintiffs Richard Pickering ("Pickering") and his company One Check, Inc. ("OCI") seek damages against TRS in this case for (1) breach of contract, (2) restitution under a theory of unjust enrichment, and (3) restitution under a theory of quantum meruit. As discussed in this Court's Opinion and Order of December 21, 1999 (the "1999 Opinion"), the Plaintiffs' claims arise from Amex's refusal to sell to OCI the patents to a project that Pickering invented and developed while employed by TRS. The Court's jurisdiction in this case is based on diversity of citizenship, pursuant to 28 U.S.C. § 1332.
Pickering worked for TRS as an executive in its American Express Relationship Services ("AERS") division from 1990 to 1996. In the course of his duties there he developed a program that came to be known as One Check. With One Check, Amex would have paid its customers regular utility bills in return for one monthly payment that included a processing fee.
Under Pickering's supervision, Amex invested approximately $14 million in developing and testing One Check over a five-year period. Amex applied for patents related to One Check in October 1993 and April 1995, with Pickering as the inventor and Amex as his assignee. Pickering ultimately decided, however, that One Check could not meet Amex's goals, and that further investment in One Check was not justified given its risks. See 1Pickering Aff. ¶ 55. Upon his recommendation, Amex decided to discontinue One Check at a meeting on April 12, 1995. See id.
The Court will refer to Pickering' s "Affidavit Opposing Defendant's Motion for Summary Judgment" as 1Pickering Aff. The Court will refer to Pickering's "Affidavit in Support of Plaintiffs' Cross-Motion for Partial Summary Judgment" as 2Pickering Aff.
Although Pickering recommended discontinuing the One Check program, he urged Amex to continue to pursue the patent applications related to One Check. See id. Amex, however, was not willing to invest any more resources into One Check and thus chose to abandon the project completely. See id.
According, to Pickering, he offered at the April 12, 1995 meeting to buy the patent rights from Amex himself. See Whitman Aff. Ex. A at 334. He states that in response, Harvey Golub, the Chairman and CEO of Amex, said, essentially, "go ahead, do whatever you please, work out the details with Randy Christofferson [("Christofferson"), President of AERS,]. . . . Whatever you work out with Randy is fine with me." Id. at 334— 35.
Following that meeting, Pickering worked to negotiate a an agreement with Amex and, at the same time, worked to pursue the One Check patents and establish OCI. He states that between April 1995 and March 1996, he worked between 1,000 and 1,300 hours on his own personal time in pursuit of those ends. See 2Pickering Aff. ¶ 19. In particular, he estimates that on his own time he worked to prosecute the patent applications for twenty hours per week between April and August 1995 and from ten to fifteen hours per week between August 1995 and January 1996. See id. ¶ 23. He alleges that he did so "[w]ith the knowledge and consent" of Amex. Id. ¶ 22. He states that because of his efforts, the two One Check patents were granted to Amex in January 1996 and November 1997. See id. ¶¶ 27— 28.
Pickering states that he reached an agreement with Amex in July 1995, and that the terms of the agreement were memorialized in various forms five times over the following eight months. See Sullivan Decl. Ex. L at 355— 56; 2Pickering Aff. ¶¶ 3, 8, 9, 12, 14. Pickering first recorded the terms of the alleged agreement in a memorandum that he sent to Christofferson, dated July 28, 1995. See Sullivan Decl. Ex. L at 356; 2Pickering Aff. Ex. A. He states that after the deal languished through Autumn 1995 with James Gallagher ("Gallagher"), an in-house attorney at Amex, it was approved again in an October 13, 1995 memorandum from Larry Sharnak ("Sharnak"), a senior vice-president at Amex, that was endorsed by Amex's vice-chairman, Jon Linen ("Linen"). See Sullivan Decl. Ex. L at 477-78, Ex. M. at 45-46, 51; 2Pickering Aff. Ex. C. Under that alleged agreement, the One Check patent rights were to be assigned to a corporation that would be 25% owned by Pickering and 50% owned by Amex.See 2Pickering Aff. Ex. C.
Pickering states that the agreement was memorialized a third time, with some change, in a "term sheet" sent to him by Gallagher on November 15, 1995. See Sullivan Decl. Ex. L at 490- 504; 2Pickering Aff. Ex. D. After "several" revisions, the "final" terms of the agreement were recorded in memoranda sent from Barbara Ehlers ("Ehlers"), TRS' Manager for Legal Affairs, to Pickering on February 1, 1996 and from Gallagher to Anne Busquet ("Busquet"), Christofferson's successor as AERS President, on February 15, 1996. See 2Pickering Aff. ¶ 10, Exs. E-F.
The alleged final agreement dispensed with the idea of an assignee corporation owned by both Pickering and Amex. Instead, Amex would assign the One Check patents to OCI, a company owned entirely by Pickering, in return for annual royalties of no more than $2 million based upon One Check's revenues. See 2Pickering Aff. ¶ 10, Ex. E. OCI could purchase Amex's right to those royalties at any time for $2 million, and could also opt to purchase a license for Amex's One Check software for $1.5 million. See id. OCI's activities would at all times be governed by Amex's Code of Conduct while Pickering was still a TRS employee. See id.
The deal imploded. In February 1996 Amex decided not to sell One Check to Pickering. See Sullivan Decl. Ex. B at 35- 39. Busquet and Gallagher told Pickering that the deal was off in a meeting held on March 15, 1996. See id. at 131— 36. Pickering's efforts to revive the deal were ultimately unsuccessful, and he resigned from TRS in June 1996. He filed this suit on December 21, 1998.
DISCUSSION
The parties' crossmdashimotions present three issues for the Court's consideration. Both parties seek summary judgment on the issue of whether the Plaintiffs' first claim, for breach of contract, is barred by the statute of frauds. The Defendants also seek summary judgment on the Plaintiffs' two claims for restitution, the first under an unjust-enrichment theory and the second under a theory of quantum meruit. After setting forth the standards for summary judgment, the Court will address those issues in that order.
I Summary Judgment Standards
This Court may grant summary judgment only if the moving party is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991); Montana v. First Fed. Sav. Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 54 (2d Cir. 1985). The role of the Court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11; see also First Fed. Sav. Loan Ass'n, 869 F.2d at 103 (stating that to resolve a summary judgment motion properly, a court must conclude that there are no genuine issues of material fact, and that all inferences must be drawn in favor of the non-moving party); Ramseur v. Chase Manhattan Bank, 865F.2d 460, 465 (2d Cir. 1989) (same).
The movant bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions to file, together with affidavits, if any," that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant meets this initial burden, the party opposing the motion must then demonstrate that there exists a genuine dispute as to the material facts. See id.; Silver, 947 F.2d at 1022; Greater Buffalo Press, Inc. v. Federal Reserve Bank, 866 F.2d 38, 42 (2d Cir. 1989)
The opposing party may not solely rely on its pleadings, on conclusory factual allegations, or on conjecture as to the facts that discovery might disclose. See Gray v. Darien, 927 F.2d 69, 74 (2d Cir. 1991). Rather, the opposing party must present specific evidence supporting its contention that there is a genuine material issue of fact. See Celotex Corp., 477 U.S. at 324; Twin Lab. Inc. v. Weider Health Fitness, 900 F.2d 566, 568 (2d Cir. 1990); First Fed. Sav. Loan Ass'n, 869 F.2d at 103; Knight, 804 F.2d at 12; L L Started Pullets, Inc. v. Gourdine, 762 F.2d 1, 3— 4 (2d Cir. 1985).
To show such a "genuine dispute," the opposing party must come forward with enough evidence to allow a reasonable jury to return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Cinema North Corp. v. Plaza at Latham Assocs., 867 F.2d 135, 138 (2d Cir. 1989). If "the party opposing summary judgment propounds a reasonable conflicting interpretation of a material disputed fact," then summary judgment must be denied. Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9— 10 (2d Cir. 1983). The Court will analyze the parties' cross-motions in accordance with these principles.
II Statute of Frauds
Both sides seek summary judgment on the issue of whether the Plaintiffs' first claim, for breach of contract, is barred by the statute of frauds. This Court ruled in the 1999 Opinion that the statute of frauds governs the enforcement of the alleged agreement because its provision for the payment of royalties could not have been completed within one year, see Mann v. Helmsley-Spear Inc., 581 N.Y.S.2d 16, 17 (App.Div. 1992), and also could not be severed from the rest of the agreement, see Kubin v. Miller, 801 F. Supp. 1101, 1120 (S.D.N.Y. 1992). The Court ruled, therefore, that the Plaintiffs could not enforce the alleged agreement unless they either satisfied the statute of frauds or demonstrated that its operation would be unconscionable in this case.
In the Plaintiffs' memorandum in support of their crossmotion for partial summary judgment, the Plaintiffs renew their argument that the alleged agreement could have been completed within one year due to OCI's option to purchase Amex's right to receive royalties. See Pls.' Supp. Mem. 6 n. 5. The Court again rejects that argument and stands by its ruling in the 1999 Opinion that the provisions are not severable because the option to purchase Amex's right to receive royalties depended itself upon the validity of that right to receive royalties.
The Plaintiffs now argue that the Ehlers, Gallagher, and Sharnak memoranda all satisfy the statutes of frauds contained in both N.Y. U.C.C. § 2-201 ("§ 2— 201"), which does not require all material terms to be in writing, and N.Y. Gen. Oblig. L. § 5— 701 ("§ 5— 701"), which does. This Court finds that because none of the three memoranda evidences a final agreement, they do not satisfy either statute of frauds provision.
Section 2-201 of the U.C.C. states as follows:
(A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.See N.Y. U.C.C. § 2-201.
Section 5-701 of the General Obligations Law, on the other hand, requires a written memorandum that includes all the essential terms of the agreement. See General Overseas Corp. v. Republic Pictures Int'l Corp., 74 F. Supp. 698, 702 (S.D.N Y 1947) (citing cases);Intercontinental Planning, Ltd. v. Daystrom, Inc., 24 N.Y.2d 372 (1969). That Section, at subsection (a), states as follows:
Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: 1. By its terms is not to be performed within one year from the making thereof. . .See N.Y. Gen. Oblig. L. § 5-701(a).
Notwithstanding their substantive differences, the statute of frauds provisions contained in § 2-201 and § 5— 701 both require a written memorandum showing that the parties have reached a final agreement as opposed to an agreement under negotiation. See N.Y. U.C.C. § 2-201 (requiring a "writing sufficient to indicate that a contract for sale has been made" ) (emphasis added); see also id. at cmt. 1 (describing that requirement as "definite and invariable"); N.Y. Gen Oblig. L. § 5-701. Each of the three memoranda offered by the Plaintiffs evidences an ongoing contracting process rather than a final agreement.
Neither the Ehlers nor the Gallagher memoranda evidences a final agreement because both expressly contemplated further discussion about the terms of the deal. See 2Pickering Aff. Exs. E-F. In Ehlers' memo to Pickering, she stated that if the attached "revised" term sheet accurately reflected "the deal," Pickering should "contact Jim so that he can discuss it with Anne Busquet." See id. Ex. E. Gallagher, in his memo to Busquet, sought to ensure that "all elements of the deal are acceptable to you before we start drafting documents since certain new matters have been raised." See id. Ex. F. He also noted in that memo the scheduling of a meeting to discuss those issues. See id.
Similarly, the Sharnak memorandum's text and circumstances indicate that the agreement to which that memo referred was not yet final. See id. Ex. C. In that October 1995 memo, Sharnak asked Linen whether he wanted to "follow through" with "the process of drawing up an agreement" with Pickering. See id. By referring explicitly to a "process," the Sharnak memo signaled that a final agreement had not yet been reached.See id.
Moreover, the agreement referred to in the Sharnak memo was quite different from the Plaintiffs' alleged "final" agreement of February 1996. Compare id. with id. Exs. E-F. The structure of the proposed One Check deal changed significantly between October 1995 and February 1996. Under the October 1995 version of the deal, Amex was to transfer the patents to a company that would be 25% owned by Pickering and 50% owned by Amex. See id. Ex. C. Under the February 1996 version, Amex was to assign the patents to a company owned entirely by Pickering (OCI) in return for annual royalties. See id. Exs. E-F. Pickering himself has stated that the terms of the deal underwent several" revisions between November 1995 and January 1996. See id. ¶ 10.
As a result, the Court finds that the Ehlers, Gallagher, and Sharnak memoranda all evidence an ongoing negotiation process between Pickering and Amex, and thus cannot satisfy the statute-ofmdashifrauds provisions contained in either § 2- 201 or § 5-701. The existence of a valid contract is an essential element to Pickering's claim for breach of contract. Therefore, this Court must grant summary judgment to TRS on that claim unless Pickering can show that the operation of the statute of frauds would be unconscionable in this case.
As the Court noted in its 1999 Opinion, New York has a strong public policy favoring the application of the statute of frauds. See Grappo v. Alitalia Linee Aeree Italiane, S.p.A., 56 F.3d 427, 432-33 (2d Cir. 1995). Courts should not stop enforcement of the statute of frauds every time that an unfairness will result. Id. However, courts may do so when the statute of frauds would create an unconscionable result. Id. This should occur only when a defendant has induced a plaintiff to "irremediably alter his situation" in reliance such that the enforcement of the statute of frauds would itself constitute a fraud. Id. (quotingWoolley v. Stewart, 222 N.Y. 347, 351 (1918)).
The Court finds that the operation of the statute of frauds in this case is not unconscionable for two reasons: (1) any reliance by Pickering on the existence of an enforceable agreement was not justified, and (2) Pickering did not "irremediably" alter his position. Pickering should not have expected any alleged deal to be final and binding until a written agreement was executed. Pickering was a sophisticated executive at a major corporation. He conceded that he knew of no instance where Amex had entered into an agreement involving either $2 million or the sale of a business without executing a written contract. See Sullivan Decl. Ex. L at 546— 47.
Moreover, the evidence in this case demonstrates that Pickering did indeed contemplate the execution of a final written agreement. In his July 28, 1995 memo to Christofferson, Pickering recorded the terms of the "agreement" and pledged to work with Gallagher to "insure that the wording is correct for subsequent submission into a contract for your signature. See 2Pickering Aff. Ex. A. Pickering was no doubt hopeful that the deal would ultimately proceed to contract, but he should not have believed that he had a final agreement until such a contract was executed.
In addition, Pickering did not alter his position in any "irremediable" way. Pickering states that he worked between 1, 000 and 1, 300 hours on his own time to set up OCI, including some 700 hours of his own time in prosecuting the One Check patent applications. See 2Pickering Aff. ¶¶ 19, 23. In determining whether to set aside the statute of frauds due to unconscionability, courts should consider "the availability and adequacy of other remedies, particularly cancellation and restitution." See Swerdloff v. Mobil Oil Corp., 427 N.Y.S.2d 266, 269 (App.Div. 1980) (finding no unconscionability where a gasstation manager worked "endless hours" in reliance on the oral promise of his own dealership if he retracted his resignation).
In this case, Pickering can seek and has sought restitution as a remedy for his expended efforts. Indeed, Pickering has asserted claims for restitution in this case under two separate theories, unjust enrichment and quantum meruit. Moreover, his efforts on his own time do not rise to such a level that it would be unconscionable for the statute of frauds to bar his claim. See id. Pickering did not, therefore, alter his position irremediably, and it would not be unconscionable in this case to adhere to the safeguards contained within the statute of frauds.
III Unjust Enrichment
The Plaintiffs also seek restitution from TRS under a theory of unjust enrichment. This is a quasimdashcontractual theory of restitution that implies a contract in circumstances where one does not exist in fact. It may be raised as an alternative theory along with a breach-of-contract claim. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). In addition, a plaintiff whose contract claims are barred by the statute of frauds may still seek restitution for the reasonable value of any benefits or services he conferred upon the defendant. See Grappo v. Alitalia Linee Aeree Italiane, S.p.A., 56 F.3d 427, 433 (2d Cir. 1995)
To maintain this claim, the Plaintiffs must show that genuine factual disputes exist in connection with the following three issues: (1) whether Amex received a benefit (2) at Pickering's expense (3) in such a way that Amex should in equity and good conscience compensate Pickering. See R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 60 (2d Cir. 1997). The Plaintiffs state that Amex received two patents related to One Check only because of the approximately 690 hours that Pickering worked on his own time to secure those patents. Amex argues that its acquisition of those patents was not unjust because Pickering assigned it his rights to those patents before performing that alleged work and before ever negotiating the alleged agreement.
Patents have value and can form the basis of an unjustenrichment theory. See, e.q., Rule, 85 F.3d 1002 (patents for lacrosse equipment);Cahill v. Regan, 5 N.Y.2d 292 (1959) (patents for reusable aluminum cans); Ross v. F.E.I., Inc., 541 N.Y.S.2d 400 (App.Div. 1989) (patents for a wallmdashipanel design). In addition, the patents for employee inventions generally belong to the employee-inventor rather than to the employer. See Cahill, 5 N.Y.2d at 296— 97.
An assignment of patent rights does not preclude a claim for unjust enrichment unless the assignment was for consideration. See Ross v. F.E.I., Inc., 541 N.Y.S.2d 400, 402 (App.Div. 1989). An employee's assignment of patent rights to his employer pursuant to an express provision in their employment agreement does preclude an unjust-enrichment claim. See Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997). However, "[f]or the employer to be entitled to a patent it is not necessary that the contract should specifically so provide. It is a question to be decided upon all the facts of the individual case. In short, such a contract may be implied from the relations of the parties."E.F. Drew Co. v. Reinhard, 170 F.2d 679, 682 (2d Cir. 1948) (L. Hand, J.) (internal quotation marks omitted).
TRS asserts that Pickering assigned the One Check patents to Amex as a condition of his continued employment, in accordance with Amex's Code of Conduct. See TRS' Supp. Mem. 20; TRS' 56.1 Stmnt. ¶ 9. The Code of Conduct states that all employee creations of "intellectual property" belong to Amex. See Whitman Aff. Ex. A, Pickering Dep. Ex. 9 at 5, Pickering Dep. Ex. 11 at 5, Pickering Dep. Ex. 13 at 16. Pickering agreed to abide by Amex's Code of Conduct as a condition of his employment. See Whitman Aff. Ex. A, Pickering Dep. Exs. 8, 10, 12.
The Court finds that Amex's Code of Conduct does not constitute an express agreement by Amex's employees to assign the rights to their inventions to Amex. Instead, the Code appears to be premised upon an incorrect legal proposition by reporting that such inventions belong to Amex simply because they "are developed by employees in the course of their jobs for which the Company pays them a salary." Id. Pickering Dep. Exs. 9 at 5 and 11 at 5. Amex may under those circumstances be entitled to a "shop right" to use those inventions, but it is not entitled to the patent rights for those reasons alone. See Cahill, 5 N.Y.2d at 296-99. Nevertheless, whether or not Amex and its employees misunderstood the employees' legal rights, the Code of Conduct does reflect an understanding that such assignments were a condition of employment at Amex. The Plaintiffs have made no effort to refute Amex's assertion that Pickering's assignment of the One Check patent rights was a condition of his continued employment there. They have instead inundated the Court with irrelevant background material and have concluded, without evidentiary support, that "[i]ssues of fact remain as to all of the points [relating to this claim] made in AMEX's memorandum." See Pls.' Opp. Mem. 17.
Under these circumstances, the Court finds that Pickering assigned the patent rights to Amex for the consideration of his continued employment. Amex's enrichment by receiving those patents was therefore not unjust, and the Plaintiffs' claim of unjust enrichment must fail.
IV Quantum Meruit
The Plaintiffs argue as a second grounds for restitution that TRS should compensate Pickering for the value of the services he rendered to Amex. The Plaintiffs must support this quantum meruit claim by showing the following four elements: (1) Pickering's performance of services in good faith; (2) Amex's acceptance of those services; (3) the reasonable value of those services; and (4) a reasonable expectation of compensation for those services. See Grappo v. Alitalia Linee Aeree Italiane, S.p.A., 975 F. Supp. 297, 303 (S.D.N.Y. 1997).
The Court finds that the Plaintiffs have demonstrated a triable issue of fact pertaining to this claim. They have established the first two elements of their claim, the performance and acceptance of services. Pickering worked on the One Check applications on his own time in good faith and Amex accepted the fruits of his labors, i.e., the patents themselves. At trial, the Plaintiffs will have to prove the number of hours that Pickering worked on those applications. This number will fall somewhere between Pickering's estimate of 690 hours and the 38.2 hours that Amex's patent counsel reported to have spent conferring with Pickering. See Whitman Aff. Ex. Q at 3-4; TRS' Supp. Mem. 24 n. 14; Kelly Decl. ¶ 5.
The value of Pickering's services can be gleaned from his salary at the relevant time periods. Amex's records reflect that Pickering's annual salary for a standard thirty-five hour workweek was $115,800 from April 1995 to November 1, 1995, and $120,000 from November 1, 1995 until he left Amex. See Whitman Aff. Ex. A Pickering Dep. Ex. 17. The Court recognizes the value of Pickering's personal time, and will therefore increase his applicable rates of pay by a multiple of 1.6 when calculating the value of his services. See Grappo, 975 F. Supp. at 301.
The Court finds that a genuine factual dispute exists regarding whether Pickering should have reasonably expected compensation for those services. He clearly hoped and expected that Amex would compensate him for those services by assigning the One Check patents to him, thereby providing him with an opportunity to profit personally along with Amex. Whether that expectation was reasonable under the circumstances of his relationship and discussions with Amex is a factual question suitable for resolution at trial.
The Court finds that this is a related, yet different issue than the one presented in connection with Pickering's breach-of-contract claim. The Court has ruled that Pickering was a sophisticated executive who should have known, and did apparently know, that no agreement with Amex concerning One Check was enforceable before the execution of a written contract. That, however, does not preclude a finding that Amex orally assured Pickering that a final deal was inevitable in order to induce his continued, off-duty efforts to secure the One Check patents for Amex. If that proves to be true, Pickering can obtain compensation for those efforts, even though he cannot seek the benefit of his alleged bargain.
CONCLUSION
The Defendant's motion for summary judgment is granted in part and denied in part. The Plaintiffs' motion for partial summary judgment is denied. Trial in this case will be limited to the Plaintiffs' third claim, for restitution under a theory of quantum meruit. The parties are hereby given a ready for trial date of Friday, November 2, 2001. Premdashitrial materials, as listed in the memorandum attached to this Opinion and Order, are due by Friday, October 19, 2001.
SO ORDERED.