United States District Court, N.D. Mississippi, Aberdeen Division
ORDER AND MEMORANDUM OPINION
SHARION AYCOCK, UNITED STATES DISTRICT JUDGE
Bonny Wallcovering Co. Ltd, filed its Complaint  against East
Systems, Inc. and George K. East in this Court on July 27,
2017, premising federal jurisdiction on the basis of
diversity of citizenship. Ningbo Bonny is a Chinese limited
corporation, and Defendants East Systems and George East are
both Mississippi citizens. George East is the president of
East Systems. The Defendants filed an Answer and Counterclaim
 on October 13, 2017. Now before the Court is the
Defendants' Motion for Partial Summary Judgment ,
requesting summary judgment in their favor on several of the
Plaintiff's claims. Also before the Court is the
Plaintiff's Motion for Summary Judgment , requesting
summary judgment in its favor on all of the Defendants'
counterclaims. The issues are fully briefed and ripe for
and Procedural Background
claims in this case arise from an agreement between Ningbo
Bonny, and George East and East Systems to modify a large
industrial machine. East is the president of East Systems,
located in Columbus, Mississippi. Prior to his employment at
East Systems, East worked for a company called Omnova
Solutions. During his employment at Omnova, East was involved
in the purchase of the Rotomec, a large commercial grade
printer. Omnova Solutions later went out of business and held
an auction in Columbus, Mississippi, in April 2013 at which
it auctioned off various pieces of commercial printing
equipment, including the Rotomec.
to the auction, Ming Hu, Vice President of Ningbo Bonny,
traveled to Columbus to survey the equipment to be auctioned.
The day before the auction, Ming Hu and Shaobo Lou, another
representative for Ningbo Bonny, traveled to Columbus and
expressed their interest in purchasing the Rotomec. Although
the machine was in general working condition, the Rotomec
needed to be repaired and refurbished, shipped to China, and
re-assembled for use in Ningbo Bonny's commercial
Rotomec is over 100 feet long and consists of two major
parts: a mechanical unit and an electrical unit. Of
particular interest here, the control unit, a sub-component
of the electrical unit, was out of date and needed to be
rebuilt. Individuals at the auction told Hu to contact East
with any questions regarding the Rotomec because of
East's experience with the operation and maintenance of
to Ningbo Bonny, East represented that he could completely
repair and restore the Rotomec, including the rebuilding of
the control unit, in order to make it fully functional for
Ningbo Bonny's purposes. According to Ningbo Bonny, it
relied on East's assurances when it successfully bid on
the Rotomec for $231, 322.50. Ningbo Bonny contracted with
Glenn Machine works to dissemble the mechanical parts of the
Rotomec and ship them to China.
traveled to China on June 19, 2013 to inspect the layout and
mechanical parts for the Rotomec and to discuss various
upgrades. After his visit, East emailed Ningbo Bonny a quote
on July 9, 2013 that proposed three phases related to the
rebuilding and handling of the Rotomec's control unit.
Phase I consisted of removing, staging, and packaging the
control unit of the Rotomec. Phase II consisted of building
controls to upgrade and modify the Rotomec's electrical
system. Phase III involved sending the Rotomec back to China
and training Ningbo Bonny employees on how to use the
emailed Hu on November 4, 2013 and attached banking
information and the first set of invoices requesting $164,
130.85. Ningbo Bonny paid East Systems $164, 130.85 on
December 4, 2013. The payment included $51, 180 for the
completion of Phase I, $16, 004.54 for cleaning the Rotomec
in order for the machine to pass Chinese customs, and $96,
949.31 for 35% of the Phase II Order. East emailed Hu on
December 6, 2013 notifying Hu that he had received the
payment and was moving ahead with the project.
parties discussed four design proposals before deciding on
the design that was to be used to complete the project.
First, in late 2013, the Defendants planned to upgrade the
Rotomec to convert it to Chinese power and then install the
Rotomec in the form in which it otherwise existed when
Plaintiff purchased the printer at the auction. In May 2014,
East suggested separating the Rotomec into two different
sections. This second proposal, however, would require
Plaintiff to purchase an additional six-color printer that
was part of the design.
traveled to China in May and August of 2014 to discuss
upgrades and modifications to the Rotomec. East made a third
proposal on October 26, 2014 because he was unsure if
Plaintiff could purchase the used six-color printer and knew
that Plaintiff's print format would only use four colors.
After making the third proposal, East sent Ningbo Bonny
invoices that totaled $118, 276.17. In November 2014, Ningbo
Bonny representatives traveled to Columbus to discuss the
proposals and the changes to the designs with East. According
to Ningbo Bonny, during this visit East represented to Ningbo
Bonny that not only could he rebuild the control unit, but he
could also reassemble the mechanical parts of the Rotomec
which Glenn Machine Works shipped to China. Ningbo Bonny and
East agreed that East would reassemble the mechanical and
electrical parts of the Rotomec.
emailed Hu on December 4, 2014 to inform him that East
Systems would not be going forward with the design because
the invoices from October 2014 had not yet been paid. Hu
responded and asked for a revised invoice that reflected the
additions and deletions from the design changes. East emailed
the requested invoices in addition to an invoice for a fourth
design proposal on December 9, 2014. East emailed Hu again on
December 12, 2014 stating he had not yet received the
requested payment and that as a result the work on
Plaintiff's project would be delayed.
January 6, 2015, Ningbo Bonny submitted payments to bring
their account current. Work resumed, and East emailed Hu on
July 16, 2015 stating he and an assistant would travel to
China in August 2015 and would return every 6-8 weeks until
the work was complete.
traveled to China as planned from August 18-24, 2015. Ningbo
Bonny shipped the sixth unit of the Rotomec to East Systems
in Columbus to be upgraded and modified. East emailed Hu on
August 27, 2015 indicating he would finish the work on the
Rotomec. According to Ningbo Bonny, communications with East
started to become difficult in the fall of 2015. Ningbo Bonny
continually pressed East to complete the project as the
Parties agreed. In any event, some work continued and there
were some discussions around December 2015 between the
Parties about a timeline for shipping some of the parts back
emailed Hu on July 12, 2016 and stated that he would be ready
to ship the control unit back to China in December 2016. East
emailed Hu again on October 4, 2016 indicating that they
would make a big push to finish the machine in
November/December. In this email, East also stated that he
would need to purchase approximately $100, 000 worth of parts
one month before shipment. East asked Hu if he thought there
would be a problem with payment. The Parties acknowledge that
this statement led to a miscommunication as Plaintiff
interpreted the statement as a request for an additional
$100, 000, and Defendants contend that they intended the
statement to be a request for assurances.
and Hu spoke on the phone at which point East asserts Hu told
him that Ningbo Bonny did not agree to an additional $100,
000 and wanted to return to the design to which the Parties
originally agreed. At this point, communications totally fell
apart. Hu emailed East on November 12, 2016 requesting an
update on the progress and expressing his dissatisfaction
with East's failure to communicate and failure to perform
the work as the parties agreed. Hu continued to email East,
but East stopped responding.
date, Ningbo Bonny has paid the Defendants a total of $437,
879.02, and asserts that Phases II and III have not yet been
completed. The Defendants maintain possession of both the
sixth unit and control unit of the Rotomec. Although the
Plaintiff requested an update on the performance of the
Parties' agreement, East failed to respond or contact
Ningbo Bonny despite repeated efforts to communicate
regarding the status of the project.
Complaint , Ningbo Bonny alleges claims against East in
his personal capacity, and against East Systems, Inc. for
breach of contract, tortious breach of contract, breach of
the duty of good faith and fair dealing, unjust enrichment,
promissory estoppel, misrepresentation, and an accounting.
Now before the Court is the Defendants' Motion 
seeking partial summary judgment as to all of Ningbo
Bonny's claims against East in his individual capacity,
and on its claims against East Systems for tortious breach of
contract, and misrepresentation. In response, Ningbo Bonny
filed a Motion  requesting summary judgment in its favor
on all of the Defendants' remaining counterclaims: breach
of contract, breach of the duty of good faith and fair
dealing, and quantum meruit.
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “but only when . .
. both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). When such contradictory facts
exist, the Court may “not make credibility
determinations or weigh the ...