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Access2go, Inc. v. Hipage Company

May 25, 2010

ACCESS2GO, INC., PLAINTIFF,
v.
THE HIPAGE COMPANY, INC., DEFENDANT.
THE HIPAGE COMPANY, INC., THIRD PARTY PLAINTIFF,
v.
BROADLINE SOLUTIONS, LLC, COTTRELL COMMUNICATIONS CORP., ZTA, LLC, CAVALIER TELEPHONE, LLC, CHRISTOPHER UNDER, NEIL MASSEY, AND TONY GATTUSO, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on Third-Party Defendant Cavalier Telephone's ("Cavalier") Motion for Summary Judgment. For the reasons set forth below, the Motion for Summary Judgment [#100] is DENIED.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, as the parties are of diverse citizenship, and the matter in controversy exceeds $75,000.

BACKGROUND

This action arises out of an alleged scheme to defraud The Hipage Company ("Hipage"). Access2Go initially brought suit against Hipage, claiming breach of an alleged contract to provide bundled telecommunications services. Hipage claims that it had no knowledge of and did not ratify this alleged contract, but rather that a former employee, Christopher Unger ("Unger"), conspired with Cavalier, Tony Gattuso ("Gattuso"), and others to exploit Hipage's confidential information in order to construct the purported contract in exchange for generous commissions. Hipage removed the case to this Court, filing various Counterclaims and a Third Party Complaint.

Gattuso is the president of ZTA, another Third-Party Defendant in this action. Gattuso has never been an employee of Cavalier, and it is on this basis that Cavalier seeks summary judgment. The Affidavit of David Whitt ("Whitt"), Cavalier's Secretary and Treasurer, confirms that ZTA's relationship to Cavalier was that of an independent contractor/sales agent rather than employee.

Hipage contends that Cavalier holds ZTA out as an authorized agent on its webpage, www.cavaliersalesagent.com. However, Cavalier responds that this website is not a Cavalier website but rather is a website copyrighted by ZTA; Cavalier's official websites are www.cavtel.com and www.cavtel.net. Hipage further points to numerous emails signed by Gattuso in connection with the subject matter of this litigation identifying himself as a "Cavalier Telephone Authorized Agent."

Cavalier has now moved for summary judgment, arguing that Cavalier had little or no involvement in bidding on telecommunications services for Hipage and that Gattuso and ZTA were not acting in their capacity as an agent for Cavalier in connection with this case. The matter is fully briefed, and this Order follows.

LEGAL STANDARD

Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party may meet its burden of showing an absence of disputed material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 325. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).

If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324. Nevertheless, this Court must "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). Summary judgment will be denied where a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

ANALYSIS

Cavalier asserts that the record establishes little or no involvement by Cavalier in bidding on telecommunications services for Hipage. It is undisputed that Gattuso was not employed by Cavalier; however, Gattuso was the president ...


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