Opinion
CIVIL NO. 1:02CV65
August 19, 2003
MEMORANDUM OF OPINION
THIS MATTER is before the Court on the Defendant's motion for summary judgment, filed July 11, 2003; Plaintiff filed response on July 28, 2003. For the reasons stated below, the Court grants the Defendant's motion.
I. STATEMENT OF FACTS
This action is unique in that the parties generally agree on the facts, although their inferences therefrom differ. In November 1999, Defendant United States Postal Service (hereinafter "USPS") solicited bids for a parcel of land on which to construct a new postal facility in Brevard, North Carolina. Exhibit K, Deposition of Keith Vinson, attached to Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (hereinafter, "Plaintiff's Memorandum"), filed July 28, 2003, at 20. On March 24, 2000, Plaintiff Brevard Management Group (hereinafter "BMG") submitted an "Offer to Sell" (hereinafter "OTS") on a standard Postal Service form, offering to sell property it owned, located at the corner of Caldwell and Whitmire Streets in Brevard to the USPS. Id., at 26, 32; see also, Exhibit A, Offer to Sell, attached to Plaintiff's Memorandum. The OTS was signed by the three shareholders of BMG: Winston Pulliam, Jr., Kenneth G. Jackson, and Keith Vinson. Id.
According to the OTS:
The seller agrees that this offer may be accepted by the United States Postal Service through any duly authorized representative, by delivering, mailing or telefaxing a notice of acceptance to the seller at the address stated below, at any time within 180 calendar days from the date hereof, whereupon this offer and the acceptance thereof become a binding contract.
Id., ¶ 1. At the bottom of the signature page of the OTS, is a space for the signature of a contracting officer of the USPS, indicating acceptance of the offer by the USPS. Specifically, the form states: "[t]he offer of the Seller contained herein is hereby accepted for and on behalf of the United States Postal Service," followed by a signature line. Id., at BMG-01212. The "Acceptance of Offer to Sell Real Property" in the current case was never signed by anyone from the USPS. Exhibit 4, Deposition of Keith Jackson, attached to Defendant's Memorandum of Law in Support of the Motion for Summary Judgment, (hereinafter, "Defendant's Memorandum") filed July 11, 2003, at 120-21; see also, Exhibit 6, Deposition of Winston Hunter Roop, attached to Defendant's Memorandum, at 175.
Included in the OTS was Paragraph 17, which was a list of site improvements that the Plaintiff would be required to perform as part of the transaction. Specifically, the OTS outlined that:
[a]s additional Consideration for accepting this offer to sell. Offeror agrees to perform all the site preparation work indicated on that set of Drawings by Areadis Geraghty and Miller. . . . Said work shall include but not be limited to grading, cutting, filling[,] construction of retaining walls completion of fill material. Said site work will exclude all storm drain work. All grading work shall be accomplished proceeding the site cleaning section 02230 and site grading section 02210 which shall be included as part of the above referenced drawings. Said drawings shall be amended to extend section "A" 45 feet.
OTS, ¶ 17.
After Plaintiff submitted its OTS and as part of the USPS's routine practice associated with purchasing property, the parties discovered that a building located on the property, called the "Breese House," had historical significance that could have repercussions on the proposed sale. Vinson Deposition, supra, at 84-86; Exhibit M, Deposition of Robert Hill, attached to Plaintiff's Memorandum, at 108-10. Because the Breese House was eligible to be listed on the Historic Register, the parties would not be able to demolish it, as previously planned. Hill Deposition, at 114-16. After months of discussions with various parties of the federal government and historical preservation groups, it was decided that the Plaintiff would be responsible for moving the Breese House to an adjacent piece of property, bought by Plaintiff for that purpose. Plaintiff's Memorandum, at 4. The decision to have the Plaintiff move the Breese House was memorialized in a Memorandum of Agreement (hereinafter, "MOA") which was signed by Keith Vinson, on behalf of the Plaintiff; W. Hunter Roop, on behalf of the USPS; and representatives of the relevant historical preservation groups. See Exhibit 8, Memorandum of Agreement, attached to Defendant's Memorandum. The date of the final signature on the MOA is October 20, 2000, with Hunter Roop signing it on September 29, 2000. Id. According to the MOA, "[t]he USPS will condition the acceptance of the Developer's offer on [certain] measures." The MOA then lists the various measures including: the developer moving the Breese House to an adjacent lot at the developer's expense; building a new foundation for it and providing electrical, water, and sewer services; installing landscape buffers; and taking the proper steps to have the Breese House listed on the National Register of Historic Places. Id.
The Breese House was, indeed, moved to its new location. Plaintiff, however, did not build a foundation or install any landscape buffers. Vinson Deposition, at 93-94.
In a memorandum dated December 20, 2000, Ken Jackson, one of the shareholders of BMG, wrote to his fellow shareholders about the status of their deal with the USPS.
Keith told me two weeks ago that he was going to visit Bob Hill in Greensboro and take the legal description and final plat to him to allow for the U.S. Postal Service Legal Department to review it prior to signing a contract with us. . . . I am quite concerned that if we don't get this information to Bob Hill soon we will not be able to break ground until mid January because we will not have an agreement with the Post Office as their legal department will probably take at least two weeks with the holidays to review. We have discussed the proposal with Jerry Whitmire and he is ready to commence with the project once we have . . . a contract with the Post Office.
Exhibit 12, Memorandum to Rusty Pulliam and Keith Vinson, dated December 20, 2000, attached to Defendant's Memorandum.
On January 17, 2001, Keith Vinson sent a letter to Robert Hill amending the original offer to sell.
This letter serves as an amendment to our offer to sell dated 24 March 2000. Amendments are as follows:
The date of acceptance/closing to be changed to March 1, 2001 . . . A letter of conditional acceptance must be received no latter (sic) than January 19, 2001 permitting the start of site work to accommodate the closing schedule. Listed conditions should include final legal approval. . . .
Exhibit 10, Letter to Robert Hill, dated January 17, 2001, attached to Defendant's Memorandum.
Even though the original OTS was never signed by the USPS and the USPS never sent a letter of acceptance based on the January 17, 2001, letter from Vinson, the parties continued to communicate and negotiate over the proposed sale. During this process, changes were made to the OTS and a revised OTS was eventually submitted to the USPS. Vinson Deposition, at 106-08; Hill Deposition, at 176-77. The date of the revised OTS is unclear because, while changes were made to the offer itself, the same signature page was used, with the date of the original OTS: March 24, 2000. See, Exhibit F, Revised OTS, attached to Plaintiff's Memorandum. However, the evidence suggests that the Revised OTS was submitted sometime after February 1, 2001. See Vinson Deposition, at 40-43; Jackson Deposition, at 32. Under the revised OTS, the Plaintiff reduced the size of the offered property, which reflected the removal of .8 acre in the flood plain and a change in the access road to the property. Vinson Deposition, at 49-50; Jackson Deposition, at 20-24. The elimination of the flood plain acreage was made at the suggestion of Hunter Roop, on behalf of the USPS. Roop Deposition, at 53. The offer price for the land was reduced from $1,995,000 to $1,950,000. See Revised OTS, supra.
The revised OTS also contained a revised paragraph 17. In addition to the site work to be performed by the Plaintiff required by paragraph 17 of the Original OTS, the Plaintiff was now required to complete a shared driveway and construct and install all storm drains. Id. Defendant would pay additional consideration for these services. Id. Also, the Plaintiff agreed that all of the site work "will be completed and approved/accepted by the Postal Service in writing prior to the close of escrow on this site." Id.
The Plaintiff began work on the various improvements to the site. Vinson and Jackson testified in their depositions that they initiated this work, without a signed OTS, because they believed that the OTS would be signed at the closing, after all of the site work had been completed. Jackson Deposition, at 119-22; Vinson Deposition, at 108-09; Plaintiff's Memorandum, at 3.
On March 13, 2001, the USPS informed the Plaintiff by letter that a spending freeze had been implemented and that at that time, the USPS would not be purchasing the Brevard land from the Plaintiff. See Exhibit 14, Letter to Keith Vinson, dated March 13, 2001, attached to Defendant's Memorandum.
II. STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party, here the Plaintiff. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). By reviewing substantive law, the Court may determine what matters constitute material facts. Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. The Defendant as the moving party has the initial burden to show a lack of evidence to support the Plaintiff's case. Shaw, supra (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If that showing is made, the burden then shifts to the Plaintiff who must convince the Court that a triable issue does exist. Id. A "mere scintilla of evidence" is not sufficient to defeat summary judgment. Id. Moreover, in considering the facts of the case for purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the Plaintiff, as the nonmoving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
III. DISCUSSION A. Plaintiff's Claim for Specific Performance
The parties and the undersigned agree that the Plaintiff's claim for specific performance of the contract is now moot. Plaintiff has "developed alternative plans for the property . . . and specific performance is no longer possible." Plaintiff's Memorandum in Opposition to Defendant's Motion for Reconsideration on the Court's Ruling on Defendant's Motion to Dismiss, filed June 20, 2003 at 4, n. 1. Plaintiff's claim for specific performance is, therefore, dismissed as moot.
B. Breach of Express Contract
The Plaintiff contends that it entered into an express contract with the USPS, in which the USPS agreed to purchase land in "ready to build condition" from the Plaintiff. Plaintiff's Memorandum, at 8. The Defendant, on the other hand, simply argues that because the USPS never accepted the Plaintiff's OTS, no enforceable contract existed. Defendant's Memorandum, at 10.
As a preliminary matter, this contract dispute will be governed by North Carolina law. It is well established that "[a]bsent controlling federal legislation or rule of law, questions involving real property rights are determined under state law, even when the United States is a party." United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir. 1986) (citing Oregon ex. rel. State Land Bd. v. Corvallis Sand Gravel Co., 429 U.S. 363, 378-81 (1977)); Dayton Michigan R. Co. v. C.I.R., 112 F.2d 627, 630 (4th Cir. 1940) (noting that federal courts are bound by state decisions as to rights of property); United States v. 0.35 of an Acre of Land, 706 F. Supp. 1064 (S.D.N.Y. 1988) (applying state law in property dispute involving the United States, with similar facts to the current case). Assuming arguendo, however, that federal law, and specifically the decisions of the United States Court of Claims applied to these facts, the outcome would be the same. See, Essen Mall Prop. v. United States, 21 Cl. Ct. 430 (Ct.Cl. 1990).
It is a basic tenet of contract law that an enforceable agreement requires an offer, an acceptance, and consideration. See, Cap Care Group, Inc. v. McDonald, 149 N.C. App. 817, 822, 561 S.E.2d 578, 581 (2002). In the current case, the seller, BMG, presented an OTS to the potential buyer, the USPS. This offer to sell remains only an offer until the buyer "accepts it on the terms contained in the original offer." Normile v. Miller, 313 N.C. 98, 103, 326 S.E.2d 11, 15 (1985). A valid contract exists only when "the parties `assent to the same thing in the same sense, and their minds meet as to all terms.'" Id. (quoting Goeckel v. Stokely, 236 N.C. 604, 607, 73 S.E.2d 618, 620 (1952)). Such a meeting of the minds "requires an offer and acceptance in the exact terms and that the acceptance . . . be communicated to the offeror." Id.
Federal law supports the same tenets of contract law. See, Essen Mall Prop., supra, at 440 ("the parties must have intended to be bound and must have expressed their intention in a manner capable of understanding. A definite offer and an unconditional acceptance must be established." (Quotations and citations omitted)).
The current case is an unusual transaction of real property because the seller, BMG, is the offeror and the buyer, the USPS, is the offeree. Nonetheless, the requirements to form a valid contract apply as in other real property transfers. See, 0.35 of an Acre of Land, supra, (applying traditional New York contract principles when there was offer to sell land to the United States). It is clear that the Plaintiff offered to sell the parcel of property to the Defendant when it submitted its OTS, which was signed by BMG's three shareholders. The OTS outlined the details of the offer, including the proper method of acceptance.
There is no issue of fact about whether the USPS accepted this offer, as specified in the OTS, by "delivering, mailing, or telefaxing a notice of acceptance to the seller . . . within 180 calendar days from the date [of the OTS]." OTS, ¶ 1. No one from the USPS ever delivered any notice of acceptance to the Plaintiff. See Roop Deposition, at 175. Further, no representative of the USPS ever signed the acceptance line of the OTS. Jackson Deposition, at 120-21. Plaintiff acknowledges that no one from the USPS ever signed the OTS. Plaintiff's Memorandum, at 9. Thus, no contract was formed in the manner outlined in the OTS.
The Plaintiff argues, however, that the Memorandum of Agreement regarding the Breese House constituted an acceptance of the Plaintiff's OTS. "Specifically, Plaintiff contends that the Postal Service agreed to execute the OTS, to close, and to fund the purchase of the Property upon the occurrence of the condition that the Plaintiff complete certain site work, including the moving of the Breese House contemplated by the MOA." Plaintiff's Memorandum, at 9. In other words, "under the MOA, the Postal Service had committed itself to sign the OTS upon the completion by Plaintiff of the work set forth in the MOA." Id.
The language of the OTS regarding appropriate methods of acceptance, however, is clear and unambiguous. The MOA did not meet the acceptance requirements outlined in the OTS. Further, the Plaintiff admits that if the MOA could be considered an acceptance, it was an acceptance conditioned on the completion of certain site improvements. Plaintiff's Memorandum, at 9. A conditional acceptance, however, is insufficient to form a contract. "It is uniformly held that to consummate a valid contract an acceptance must be unconditional and must not change, add to, or qualify the terms of the offer." Burkhead v. Farlow, 266 N.C. 595, 598, 146 S.E.2d 802, 804 (1966); see also, Normile, supra. The MOA, by adding conditions to the agreement, did not make an enforceable contract.
Even if the OTS could have been accepted in a means other than having the Defendant provide the Plaintiff with an acceptance letter or by signing the OTS, the evidence does not support Plaintiff's contention that the MOA acted as an acceptance of the OTS. In order to establish an enforceable contract, there must be a meeting of the minds between the parties. See, Normile, supra. In the current case, no such meeting of the minds existed and there was no clear, unambiguous acceptance of the Plaintiff's offer by the Defendant.
Plaintiff's own evidence establishes that the MOA did not constitute an acceptance of the OTS. First, on December 20, 2000, some two months after the MOA was signed by all of the parties, Ken Jackson sent a memorandum to his fellow shareholders, advising them that he was concerned because they did not yet "have an agreement with the Post Office" and acknowledged that the USPS had not yet signed a contract with them. Further, he noted that a specific contractor was ready to begin work on the land and would commence working once BMG had "a contract with the Post Office." See Exhibit 12, attached to Defendant's Memorandum. He added that "without an agreement from Bob Hill [of the USPS], we cannot pursue the project." Id. These statements show that BMG's shareholders were aware that the signed MOA did not constitute an acceptance, that there was no meeting of the minds among the parties and, thus, that there was no contract.
Second, on January 17, 2001, Keith Vinson wrote to Bob Hill, amending the OTS. He wrote that, "[t]he date of acceptance/closing [is] to be changed to March 1, 2001. . . . A letter of conditional acceptance must be received no latter [sic] than January 19, 2001 permitting the start of site work to accommodate the closing schedule." Exhibit 10, attached to Defendant's Memorandum. This correspondence was written three months after the MOA was signed. Vinson's request for a letter of conditional acceptance, shows that he and his fellow shareholders did not regard the MOA as an acceptance. There would be no need to request an acceptance if the MOA had served such a purpose.
Third, on March 6, 2001, the BMG shareholders collectively sent a letter to Bob Hill of the USPS, extending the acceptance date for their OTS once again. Specifically, they wrote: "Please be advised that this Offer to Sell is extended until the thirtieth day of March of the year 2001." Exhibit 11, attached to Defendant's Memorandum. This language acknowledges that there was no acceptance as of March 6, 2001, which was some five months after the MOA was signed.
Finally, Plaintiff cannot point to a date of acceptance of the OTS. In response to an interrogatory, Plaintiff explained that "[t]he offer was accepted no later than September 29, 2000, when Defendant executed the Memorandum of Agreement regarding the Breese House, indicating that it accepted the offer of Plaintiff on certain `measures.'" Exhibit 2, Plaintiff's Responses to Defendant's First Set of Interrogatories, attached to Defendant's Memorandum, at 6. The undersigned has already noted, however, that a conditional acceptance is insufficient to form an enforceable contract. Further, Plaintiff's own letters and memorandum request an acceptance well after September 29, 2000. Such a vague "acceptance" does not constitute a meeting of the minds.
The confusion demonstrated by the Plaintiff, as to whether or not there was an acceptance, shows that there could not have been a meeting of the minds between the parties. A valid contract exists only when "the parties `assent to the same thing in the same sense, and their minds meet as to all terms.'" Normile, supra. The members of the Plaintiff firm have demonstrated that there was no meeting of the minds among themselves, let alone a meeting of the minds between the parties. Without a meeting of the minds and no clear acceptance by the Defendant, an express contract was never formed, as a matter of law. Defendant's motion for summary judgment as to the breach of express contract claim is, therefore, granted.
C. Breach of Implied Contract
The Plaintiff asserts that even if the Court finds that there was no express contract, that there was an implied contract, which the Defendant breached. Plaintiff's Memorandum, at 14. Defendant counters that because the parties were negotiating toward a contract, "there can be no claim for breach of an implied contract if that written contract was never consummated." Defendant's Memorandum, at 14.
A contract implied in fact "exists by virtue of the parties' conduct, rather than in any explicit set of words." Kiousis v. Kiousis, 130 N.C. App. 569, 573, 503 S.E.2d 437, 440 (1998). Such a contract is formed when "the intention of the parties is not expressed, but an agreement in fact, creating an obligation is implied or presumed from their acts. . . ." Snyder v. Freeman, 300 N.C. 204, 217, 266 S.E.2d 593, 602 (1980) (citation omitted). As with express contracts, to form an implied contract there must be an offer, an acceptance and "mutual assent of both parties to the terms of the agreement so as to establish a meeting of the minds." Id., at 218, 266 S.E.2d at 602 (citing Pike v. Wachovia Bank Trust Co., 274 N.C. 1, 161 S.E.2d 453 (1968)). With a contract implied in fact, "one looks not to some express agreement, but to the actions of the parties showing an implied offer and acceptance." Id.; see also, Creech v. Melnik, 347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998).
The agreement at issue in the current case pertains to the sale of land from the Plaintiff to the Defendant. See OTS. Under North Carolina law, "[a]ll contracts to sell or convey any lands . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized." N.C. Gen. Stat. § 22-2. For such a writing to comply with the statute of frauds, it must show the essential elements of a contract including evidence of a mutuality of agreement between the parties. McCraw v. Llewellyn, 256 N.C. 213, 217, 123 S.E.2d 575, 578 (1962); see also, B F Slosman v. Sonopress, Inc., 148 N.C. App. 81, 85, 557 S.E.2d 176, 179 (2001). This mutuality of agreement, therefore, cannot simply be implied without a writing. Id.
A contract implied in fact, by definition, is not a written contract. An unwritten, implied contract regarding the sale or conveyance of land, therefore, is invalid, as it would fail to meet the writing requirement of the statute of frauds. In the current case, the undersigned has already determined the writings that do exist, the OTS and the MOA, do not constitute a contract. A contract for the sale of land cannot be implied by the actions of the parties alone. Defendant's motion for summary judgment, therefore, is granted on Plaintiff's claim of breach of contract implied in fact.
Even though Defendant did not argue the statute of frauds defense in its summary judgment memorandum, it was properly asserted as an affirmative defense in the Thirteenth Defense of Defendant's Answer, filed June 10, 2002.
D. Equitable Estoppel
The Plaintiff's final claim is one for equitable estoppel. Specifically, the Plaintiff contends that the Defendant should be estopped from denying the existence of a contract. Plaintiff's Memorandum, at 15. Defendant sets forth various responses to this claim, including this Court's lack of jurisdiction; the fact that because there is no implied contract, there can be no equitable estoppel claim; and that the Plaintiff has failed to present the essential elements of an equitable estoppel claim. Defendant's Memorandum, at 15-16. Under North Carolina law, the essential elements of an equitable estoppel claim, as related to the party estopped are:
(1) [c]onduct which amounts to a false representation or concealment of material facts, or, at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert; (2) intention or expectation that such conduct shall be acted upon by the other party, or conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon; (3) knowledge, actual or constructive, of the real facts.
Meachan v. Montgomery County Bd. of Educ., 47 N.C. App. 271, 277-78, 267 S.E.2d 349, 353 (1980) (quoting Hawkins v. M J Finance Corp., 238 N.C. 174, 177-78, 77 S.E.2d 669, 672 (1953)); see also, Miracle v. North Carolina Local Gov't Employees Ret. Sys., 124 N.C. App. 285, 294, 477 S.E.2d 204, 210-11 (1996). In addition, the elements as to the party claiming estoppel are:
"(1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party sought to be estopped; and (3) action based thereon of such a character as to change his position prejudicially."
Id. (quoting Hawkins, supra). Further, the theory of equitable estoppel applies to the federal government only in the narrowest of circumstances. Heckler v. Community Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 (1984); see also, Kings Mountain Bd. of Educ. v. North Carolina State Bd. of Educ., ___ S.E.2d ___, 2003 WL 21786146, **6 (N.C.App. 2003) ("A governmental agency is not subject to an estoppel claim to the same extent as an individual or a private corporation").
The most relevant element in the current case is that the party claiming estoppel must "lack [the] knowledge and the means of knowledge of the truth as to the facts in question." Meachan, supra. According to the Plaintiff, the "fact in question" is the fact that the USPS would "contend that it did not have a contract [for the sale of land] with the Plaintiff." Plaintiff's Memorandum, at 17. As discussed earlier, however, Plaintiff's own correspondence and memoranda acknowledged that it did not have an acceptance of their OTS. BMG's shareholders knew that they did not have approval from the USPS and repeatedly extended the deadline in which the USPS could convey its acceptance. Plaintiff knew, therefore, that it did not have an enforceable agreement. They may have had extended negotiations toward a contract, but there was no reason to believe, without a proper acceptance, that there was a binding contract. Further, there is no evidence supporting the idea that the USPS made any false representations or concealed material facts regarding their attempt to purchase the property. The deposition testimony cited by Plaintiff in its memorandum indicates that the relevant USPS employees intended to accept the contract and desired that the land be used for the new postal facility. Plaintiff's Memorandum, at 17 (citing Hill Deposition, at 226-27). The evidence shows, however, that a spending freeze was implemented before a contract was formed. Plaintiff has presented no evidence to support the allegation that fraud or concealment was involved.
The "fact in question" is not whether the parties had a separate and distinct contract for the site work. Plaintiff has already acknowledged that there was no separate contract for this work. See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, filed December 24, 2002, at 3-4.
The undersigned has found that there is no genuine issue of material fact related to at least two elements of equitable estoppel claim. It is unnecessary, therefore, to analyze the other elements of this claim. Summary judgment is granted in favor of the Defendant.
IV. ORDER
IT IS, THEREFORE, ORDERED that the Defendant's motion for summary judgment is ALLOWED. A Judgment is filed herewith dismissing this action.
IT IS FURTHER ORDERED that Defendant's motion to strike Plaintiff's demand for a jury trial, filed July 11, 2003, and the Plaintiff's motion to compel, filed July 14, 2003, are hereby DENIED as moot.
IT IS FURTHER ORDERED that the Defendant's motion for leave to file exhibit under seal is hereby ALLOWED.
JUDGMENT
For the reasons set forth in the Memorandum of Opinion filed herewith,IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the Defendant's motion for summary judgment is ALLOWED, and this matter is hereby DISMISSED WITH PREJUDICE in its entirety.