                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0027n.06
                            Filed: January 9, 2007

                                            No. 06-1277

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ERICKSON’S FLOORING & SUPPLY CO., INC.,                   )
                                                          )
       Plaintiff-Appellant,                               )
                                                          )
v.                                                        )    On Appeal from the United States
                                                          )    District Court for the Eastern
TEMBEC, INC., TEMBEC, USA, L.L.C., and                    )    District of Michigan
KEVIN GURICAN,                                            )
                                                          )
       Defendants-Appellees,                              )
                                                          )
ALL TILE, INC.,                                           )
                                                          )
       Defendant.




Before:        BOGGS, Chief Judge; COOK, Circuit Judge; and CARR, District Judge.*

               PER CURIAM. Erickson’s Flooring and Supply Company, Inc., (“Erickson’s”)

appeals the district court’s grant of summary judgment on its three claims against Tembec, Inc. and

Tembec, USA, L.L.C. (together “Tembec”), its one claim against Kevin Gurican, and its three claims

against both Tembec and Gurican. Erickson’s also appeals the sua sponte decision of the district

court to grant summary judgment on the latter three claims against Gurican. Because we find that

the district court correctly determined that Erickson’s failed to present sufficient evidence to create



       *
         The Honorable James G. Carr, Chief United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

a genuine issue of material fact on any of its claims, and that Tembec was entitled to judgment as

a matter of law, we affirm the district court’s grants of summary judgment.

                                                  I

       Erickson’s is a wholesale distributor of hardwood flooring and related supplies. Tembec is

a leading integrated forest products company principally involved in the production of wood

products, including hardwood flooring. In 1992, Erickson’s began distributing Tembec products in

Michigan, Indiana, Illinois, and Ohio. Erickson’s distribution of Tembec products was governed by

an oral agreement between the two companies that Erickson’s would be the exclusive distributor for

Michigan, Indiana, Ohio, and most of Illinois.

       This arrangement continued until 2003, when All Tile, Inc., one of Erickson’s competitors,

approached Tembec about becoming a distributor. In late August 2003, All Tile and Tembec

reached an agreement whereby Tembec would restructure its distribution network to include All Tile.

Erickson’s states that on August 26, 2003, it received telephone calls from its customers who

informed it that All Tile was claiming to be Tembec’s new distributor. In response to this news,

Erickson’s arranged a meeting with Tembec for September 3, 2003.

       At that meeting, Tembec effectively terminated its existing distribution agreement with

Erickson’s. Tembec advised Erickson’s that it would have to exit the Illinois market completely by

October 24, 2003, and that it would have to accept a dual distributorship arrangement with All Tile

in Michigan. All Tile began distributing Tembec products on or about October 24, 2003.

       Erickson’s also alleges that sometime after the cancellation of the agreement with Tembec,

Kevin Gurican, a Tembec employee, contacted one of Erickson’s biggest customers and falsely

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

stated that Erickson’s was going out of business and was not able to service its customers.

Erickson’s further alleges that after Gurican left Tembec in February of 2005 to work for All Tile,

he used Erickson’s customer lists and information, which he had obtained, partly through deception,

while working with Tembec, to solicit Erickson’s customers for his own benefit.

                                                  II

       We review a district court’s grant of summary judgment de novo, using the same Rule 56(c)

standard as the district court. Hansard v. Barrett, 980 F.2d 1059, 1061 (6th Cir. 1992). Summary

judgment “shall be rendered forthwith 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.” Fed. R. Civ.

P. 56(c); Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 466 (6th Cir. 2003). In

deciding a motion for summary judgment, we must view the factual evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving

party. Ibid.; Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).

                                                 III

       The district court granted summary judgment against all seven of Erickson’s claims.

Erickson’s appeals every one of these judgments. We will first address the three claims Erickson’s

alleges solely against Tembec: (1) breach of contract, (2) detrimental reliance, and (3) fraud. We

will then address the claim Erickson’s alleges solely against Gurican: (4) defamation and business

libel. Finally, we will address the claims Erickson’s alleges against both Tembec and Gurican: (5)

unjust enrichment, (6) tortious interference with contracts and/or business expectancies, and (7)

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

unfair competition. Ancillary to our discussion of these last three claims, we will address (8)

Erickson’s argument that the district court improperly granted summary judgment sua sponte against

these three claims as they pertain to Gurican.

       1. Breach of Contract

       Erickson’s contends that its agreement with Tembec was an oral contract that made it

Tembec’s exclusive distributor. Erickson’s also argues that this contract was terminable only for just

cause or, in the alternative, could only be terminated with notice. Therefore, Erickson’s concludes

that Tembec has breached this contract either by terminating without just cause, or by terminating

with insufficient notice.

       Under Michigan law, contracts for an indefinite term that do not contain a provision

regarding the manner in which the contract may be terminated are terminable at will. Lichnovsky

v. Ziebart Int’l Corp., 324 N.W.2d 732, 738-39 (Mich. 1982). Even if a binding oral contract

existed, Erickson’s has not presented sufficient evidence to create a genuine issue of material fact

as to whether the contract was terminable only for just cause or only with notice. The only evidence

that Erickson’s identifies is two letters from Tembec to Erickson’s written in 2000 and 2001.

Erickson’s points to the language of one letter in which Tembec referred to its “commitment and

exclusivity to Erickson’s over the years.” In the other letter, Tembec apologized for allowing

another vendor to sell Tembec products in an Erickson’s market, assured Erickson’s that their

exclusive agreement would “not be breached in the future,” and that Tembec would notify Erickson’s

in advance of any exceptions to its agreement with Erickson’s. While these letters may be evidence

that there was an exclusive contract between Tembec and Erickson’s, they are not evidence that the

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

contract was terminable only for just cause or only with notice. In neither is there any mention, or

implication, of termination only for cause. While the second letter does state that Tembec will

provide Erickson’s with notice of any exceptions it makes to the exclusivity arrangement, this notice

guarantee was premised on the original agreement continuing. It did not purport to set out new

requirements for termination of the agreement as a whole.

       Erickson’s also argues that the contract included an implied covenant of good faith and fair

dealing. Even if this is so, Erickson’s presents no evidence that Tembec violated this covenant. The

implied covenant of good faith and fair dealing does not require termination only for cause, or

termination only with advance notice. Yet these are the only actions by Tembec that Erickson’s can

point to as violating this claimed implied covenant.

       2. Detrimental Reliance

       Erickson’s contends that Michigan recognizes an independent cause of action for detrimental

reliance. According to Erickson’s, it arises “when a person is injured as the result of having done

something or having refrained from doing something, on the basis of the material representations of

another.” Br. of Appellant at 22-23. Erickson’s finds this particular formulation not in a case that

recognizes detrimental reliance as an independent cause of action, but in a case that views

detrimental reliance as only one element of a more complex claim, such as fraud. See Catellane v.

Federal Express Corp., 1995 U.S. Dist. LEXIS 16932 (E.D. Mich. 1995). The only case Erickson’s

cites that even alludes to an independent detrimental reliance claim is H.J. Tucker & Assoc. v. Allied

Chucker and Engineering Co., 595 N.W.2d 176 (Mich. Ct. App. 1999). In that case, the Michigan

Court of Appeals declined to correct the claimed error of the trial court in not granting summary

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

judgment on a detrimental reliance claim. The court found that: “Even assuming, as defendant

argues, that the trial court erred in not granting summary disposition with respect to the detrimental

reliance claim because detrimental reliance merely constitutes an element of a misrepresentation

claim, as opposed to a separate ground for relief, we conclude that any error was harmless because

plaintiff recovered only on its breach of contract claim.” Id. at 187 n.9. This opinion, standing

alone, does not create a cause of action. It professes no opinion at all on whether a claim for

detrimental reliance can stand alone. Considering this dearth of evidence, the district court properly

found that Michigan does not recognize an independent cause of action for detrimental reliance.

       Even if Michigan did recognize the claim that Erickson’s describes, Erickson’s failed to

present sufficient evidence to create a genuine issue of material fact. The material representations

that Erickson’s claims to have detrimentally relied upon were Tembec’s alleged representations that

Erickson’s would remain the exclusive distributor of Tembec products. As noted in our discussion

of Erickson’s breach of contract claim, supra, Erickson’s has produced no evidence of such

representations. Therefore, Erickson’s claim for detrimental reliance fails.

       3. Fraud

       Erickson’s accuses Tembec of perpetrating three distinct types of fraud: intentional

fraudulent misrepresentation, negligent fraudulent misrepresentation, and silent fraud.

       Under Michigan law, to prove a claim for intentional fraudulent misrepresentation, a plaintiff

must show: “(1) that defendant made a material misrepresentation; (2) that the representation was

false; (3) when defendant made the representation, defendant knew that it was false, or made it

recklessly without knowledge of its truth or falsity; (4) that defendant made it with the intent that

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

plaintiff would act upon it; (5) that plaintiff acted in reliance upon it; and (6) that plaintiff suffered

injury.” Baker v. Arbor Drugs, Inc., 544 N.W.2d 727, 732 (Mich. Ct. App. 1996). Under Michigan

law, a misrepresentation can also be actionable where it was negligently made, when there was “a

business or professional duty of care to provide accurate information.” See Mickam v. Joseph Louis

Palace Trust, 849 F. Supp. 516, 521 (E.D. Mich. 1993) (citing Williams v. Polgar, 215 N.W.2d 149

(Mich. 1974)).1 Finally, when, and only when, a legal duty to disclose information exists,

suppressing that information or failing to disclose a material fact constitutes “silent fraud.” M&D,

Inc. v. W.B. McConkey, 585 N.W.2d 33 (Mich. Ct. App. 1998).

        Erickson’s intentional and negligent fraud claims rest on the same representations it put forth

as the basis for its breach of contract and detrimental reliance claims. Specifically, Erickson’s again

points to the 2000 and 2001 letters it received from Tembec. From the 2001 letter: “Tembec is

dedicated to our original agreements regarding distribution rights in the Indiana market to

Erickson’s.” From the 2000 letter: “[Tembec] product has been shipped to A-American in a manner

that has caused Erickson’s to question Tembec’s commitment to our agreement. . . . [The]

Agreement will not be breached in the future. Tembec will notify Erickson [sic] in advance of any

exception. . . . Home Depot is not welcome to sell Tembec flooring in Erickson’s markets. We look

forward to continued growth and mutual success with Erickson’s . . . .”


        1
          Note that detrimental reliance is an element of both intentional and negligent fraud.
Considering that Erickson’s putative detrimental reliance claim appears to allow recovery for any
affirmative representation that is detrimentally relied upon, it encompasses both Erickson’s
intentional and negligent fraud claims. Therefore, as we held above that Erickson’s failed to present
evidence sufficient to create an issue of fact as to whether Tembec made statements upon which
Erickson’s detrimentally relied, it necessarily follows that Erickson’s intentional and negligent fraud
claims will fail as well.
                                                  -7-
No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

        As discussed above, these statements cannot reasonably be construed as representations that

the distributorship would continue in perpetuity. Further, as the district court noted, it is unclear how

these statements are even misrepresentations. The agreement between Tembec and Erickson’s

continued at least two years after the 2001 letter was written and three years after the 2000 letter was

written. Further, even if we could construe the above as commitments, and accept that they

eventually proved to be false, Erickson’s has presented no evidence that Tembec knew the statements

were false at the time Tembec made them. For all of these reasons, the district court properly

granted summary judgment on Erickson’s intentional and negligent fraud claims.

        Erickson’s also argues that Tembec is guilty of silent fraud. Erickson’s claims that the

statements related above created in Tembec “an obligation to disclose timely to [Erickson’s] any

changes of heart or any actions Tembec was going to take that were contrary to those earlier

promises, assurances, and representations.” Specifically, Erickson’s argues that Tembec’s statement

in the 2000 letter that it would notify Erickson’s of any exceptions it made to the exclusive

distributorship agreement in the future created in Tembec a duty to give Erickson’s notice of the

termination of the agreement as a whole.

        The district court found that there was no support for this broad interpretation of Tembec’s

statement. We agree. For Erickson’s to prevail on its claim of silent fraud, it must present evidence

that shows Tembec had a duty to disclose its negotiations with All Tile prior to its disclosure at the

September 3, 2006 meeting. First, Tembec’s statement in the 2001 letter presupposed the continuing

existence of the distributorship agreement. The letter stated that the agreement would not be

breached in the future without notice, not that the agreement as a whole could not be terminated

                                                  -8-
No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

without notice. Second, Tembec did provide Erickson’s with advance notice of the agreement’s

cessation at the September 3, 2003 meeting. At that meeting, Tembec notified Erickson’s that it had

over a month to conclude its operations in Illinois and accept a dual distributorship agreement in

Michigan. All Tile did not begin distributing Tembec products until the end of October 2003. Even

if it were reasonable to find that Tembec’s comments created in it a duty to notify Erickson’s in

advance of the termination of their relationship, it would not be reasonable to find that Tembec failed

to meet this unspecified obligation with its September 3, 2003 disclosure. Again, we affirm the

district court’s judgment.

       4. Defamation and Business Libel

       Erickson’s alleges that Gurican defamed it by telling at least one Erickson’s customer that

it was going out of business and could not continue servicing its customers. Under Michigan law,

the first element of a defamation claim is a false and defamatory statement concerning a plaintiff.

See Rouch v. Enquirer & News of Battle Creek, 487 N.W.2d 205, 212 (Mich. 1992). The only

evidence that Erickson’s presents that such a comment was ever made is an affidavit by the president

of Erickson’s that “employees reported to him that . . . Gurican contacted personnel at [Erickson’s]

largest Chicago customer, Coleman Floors, and advised that [Erickson’s] was going out of business

and would not be able to service its customers.” As the district court correctly held, this affidavit

relates hearsay, and an affidavit based solely on hearsay is insufficient to create a genuine issue of

material fact. See Dole v. Elliot Travel & Tours, Inc., 942 F.2d 962, 968 (6th Cir. 1991); Fed. R.

Civ. P. 56(e). Therefore, the district court properly granted summary judgment on this claim.

       5. Unjust Enrichment

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

       In Michigan, a claim for unjust enrichment consists of: “(1) receipt of a benefit by the

defendant from the plaintiff and (2) an inequity resulting to plaintiff because of the retention of the

benefit by the defendant.” Barber v. SMH (US), Inc., 509 N.W.2d 791, 796 (Mich. Ct. App. 1993).

Under appropriate circumstances, Michigan law allows courts to imply a contract in order to prevent

unjust enrichment. Ibid. “However, a contract will be implied only if there is no express contract

covering the same subject matter.” Ibid.

       Erickson’s claims that Tembec was unjustly enriched because it did not equitably compensate

Erickson’s for its substantial assistance in developing a market in the United States for Tembec

products. The district court properly dismissed Erickson’s claims against Tembec. The two parties

had an express oral contract governing their relationship. This was a bargained-for agreement that

governed the compensation to flow between the parties for actions taken pursuant to the agreement.

Any recovery allowed in this situation would essentially rewrite the contract. Ibid.

       Erickson’s argues that Gurican was unjustly enriched because he had access to Erickson’s

customer lists, which he allegedly obtained partly through deception, and used them to call on a large

number of Erickson’s customers following the termination of the agreement between Erickson’s and

Tembec, and Gurican’s subsequent employment with All Tile. Erickson’s sole basis for its claim

against Gurican is his deposition testimony. Gurican testified that he had access to lists of certain

categories of Erickson’s customers (though not all) and that he had traveled with Erickson’s sales

people on visits to Erickson’s customers. He testified that in 2005 he became tired of the travel

required by his job with Tembec and accepted an offer from All Tile to join them as “product

manager for hard wood floors and laminates.” Asked to describe his job responsibilities, he

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

responded: “Manage inventories; pricing, manage pricing, manage promotional pricing. Travel with

sales reps to make sure All Tile’s customers are comfortable and familiar with the products, make

sure the sales people are trained properly in the product.” He testified that he has no direct sales

responsibilities and does not work on commission. Erickson’s, however, points to Gurican’s

testimony that he called on “a hundred” of Erickson’s customers after joining All Tile. In context,

however, this testimony does not support Erickson’s unjust enrichment claim:

       Q: When you began working with All Tile, did you call any customers that
       were former customers of Erickson?
       A: Did I call on them how?
       Q: You say you go out with sales reps and things?
       A: Sure.
       Q: Did you go to any companies that had formerly been clients of Tembec products
       handled by Erickson [sic]?
       A: Sure.
       Q: What companies are those?
       A: Numerous. I’m sure many of the companies that Erickson’s calls upon. All Tile
       – if you want a list. I’ll have to type it out. It will be a thousand different customers.
       We all call on the same people is the point I’m trying to make.
       Q: I understand. And I do appreciate you’ve not gone through a thousand customers
       since January 05. But how many customers in the Chicago market did you contact
       that were Erickson’s former customers?
       ...
       A: A hundred.

JA 879. Gurican testified that he does not make sales, and that he only works with current All Tile

customers. Whether or not a particular customer was also a former Erickson’s customer has no

relevance to his visits or calls; he visits current All Tile customers. Erickson’s has not presented any

evidence that can be reasonably interpreted as showing that Gurican has received a benefit from his

knowledge of Erickson’s customer base, let alone an inequitable benefit. Therefore, we affirm the

district court’s grant of summary judgment on this claim as well.

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

       6. Tortious Interference with Contracts and/or Business Expectancies

       Under Michigan law, the elements of tortious interference with contract are (1) the existence

of a contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach by the

defendant. Health Call of Detroit v. Atrium Home & Health Care Services, Inc., 706 N.W.2d 843,

848-49 (Mich. Ct. App. 2005). The elements of tortious interference with a business relationship

or expectancy are (1) the existence of a valid business relationship or expectancy that is not

necessarily predicated on an enforceable contract, (2) knowledge of the relationship or expectancy

on the part of the defendant interfere, (3) an intentional interference by the defendant inducing or

causing a breach or termination of the relationship or expectancy, and (4) resulting damage to the

party whose relationship or expectancy was disrupted. Id. at 849.

       As the district court recognized, both claims require that a plaintiff prove either “the

intentional doing of a per se wrongful act or the intentional doing of a lawful act with malice and

unjustified in law for the purpose of invading plaintiff’s contractual rights or business relationship.”

Feldman v. Green, 360 N.W.2d 881, 886 (Mich. Ct. App. 1984). “Where the defendant’s actions

were motivated by legitimate business reasons, its actions would not constitute improper motive or

interference.” Mino v. Clio School District, 661 N.W.2d 586, 597-98 (Mich. Ct. App. 2003).

Further, “[t]o establish that a lawful act was done with malice and without justification, the plaintiff

must demonstrate, with specificity, affirmative acts by they defendant that corroborate the improper

motive of the interference.” Id. at 597.

       Erickson’s has never identified specific clients with whom either Tembec or Gurican

interfered. Nor has Erickson’s presented any evidence of contracts with particular customers or

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

breaches of those contracts. Without such evidence, Erickson’s has failed to support its claim for

tortious interference with contract against either Tembec or Gurican.

       Erickson’s also has never presented any evidence that Tembec’s termination of the

distributorship agreement was either wrongful per se or malicious and unjustified. Indeed, there is

no evidence that Erickson’s actions were anything other than quintessential business maneuvering.

While such maneuvering is inevitably painful for a losing party, it is not actionable. Id. at 597-98.

       Finally, with regard to Erickson’s claim against Gurican for tortious interference with

business expectancies, the district court correctly held that Erickson’s has not presented “any

evidence to establish the third and fourth elements of a prima facie case: that his alleged interference

with customers actually induced or caused a breach or termination of [Erickson’s] business

relationships or expectancies, and that [Erickson’s] suffered damages as a result.” Erickson’s has

also failed to identify any such evidence in the record upon appeal. Therefore, Erickson’s has failed

to create a genuine issue of material fact sufficient to survive summary judgment.

       7. Unfair Competition

       Michigan law recognizes a claim for unfair competition:

       Unfair competition ordinarily consists in the simulation by one person, for the
       purpose of deceiving the public, of the name, symbols, or devices employed by a
       business rival, or the substitution of the goods or wares of one person for those of
       another, thus falsely inducing the purchase of his wares and thereby obtaining for
       himself the benefits properly belonging to this competitor. The rule is generally
       recognized that no one shall by imitation or unfair device induce the public to believe
       that the goods he offers for sale are the goods of another, and thereby appropriate to
       himself the value of the reputation which the other has acquired for his own product
       or merchandise.

Peninsular Stove Co. v. Augst, 285 N.W. 24, 26 (Mich. 1939) (quotations omitted).

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

       As the district court correctly found, no such allegations were made against either Tembec

or Gurican in this case. Erickson’s argues that it had expended large amounts of resources in

building up its own business reputation in the markets in which it sold Tembec products, and that

by taking Erickson’s Tembec business away and giving it to All Tile, Tembec (and Gurican)

appropriated Erickson’s business reputation and assigned it to All Tile. However, even if there was

evidence to support this theory, it would not state a claim for unfair competition. To do so,

Erickson’s must also allege and present evidence that Tembec (and Gurican) “induced the public to

believe that the goods [Erickson’s, or perhaps All Tile] offered for sale are the goods of another.”

There is no such allegation or evidence to support such an allegation, and therefore the district court

correctly granted summary judgment on Erickson’s unfair competition claims.

       8. The Sua Sponte Grant of Summary Judgment

       In its complaint, the only claim that Erickson's specifically alleged against Gurican was its

defamation and business libel claim. Erickson's did, however, allege its claim for unjust enrichment,

tortious interference with contracts and/or business expectancies, and unfair competition against all

defendants generally.1 Gurican only moved for summary judgment on the one claim specifically

alleged against him. Despite this deficiency of Gurican’s motion for summary judgment, the district

court chose to grant summary judgment on all claims against Gurican because it found them to be

clearly baseless. Erickson’s appeals this sua sponte grant of summary judgment.

       The “clearly established rule in this circuit is that a district court must afford the party against


       1
             The substance of these claims as they relate to Gurican does not appear in Erickson's
complaint; for example, Erickson's argument that Gurican stole customers from Erickson's appears
for the first time in Erickson's response to Tembec's motion for summary judgment.
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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

whom sua sponte summary judgment is to be entered ten days notice and an adequate opportunity

to respond.” Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir. 1984). A district court’s failure to

comply with this ten-day notice requirement is subject to review for harmless error. Harrington v.

Vandalia-Butler Board of Education, 649 F.2d 434,436 (6th Cir. 1981). Any error is harmless if

“there has been no prejudice to the opposing party by the court’s failure to comply with this . . .

rule.” Helwig v. Vencor, Inc., 251 F.3d 540, 552 (6th Cir. 2001) (en banc).

        Erickson’s has “not demonstrated that [it] could have produced any additional evidence . .

. if ten days notice had been given . . . .” Hoopes v. Equifax, Inc., 611 F.2d 134, 136 (6th Cir. 1979).

Erickson’s had the opportunity in its complaint, in its response motion to Tembec’s motion for

summary judgment, and in its briefs before this court to point to any evidence that might create a

genuine issue of material fact on its claims against Gurican. It has been entirely unable to do so. See

Harrington, 649 F.2d at 436 (“[W]hen the non-moving party has had an opportunity to address the

court concerning a motion and fails to object to an expedited decision thereon, or when the legal

issue has already been fully briefed and no factual dispute exists, that party has not been prejudiced

by the court’s noncompliance with Rule 56(c).”). Even upon appeal, Erickson’s makes no claim that

additional evidence would have been forthcoming, merely that it should have been allowed to file

further briefing or make an oral argument on these claims.

        The district court correctly held that Erickson’s has failed to present sufficient evidence to

create a genuine issue of material fact with regard to any of these three claims against Gurican.

Absent any indication from Erickson’s that ten days’ notice would have given it time to present

additional evidence, we hold that the district court’s failure to comply with the ten-day notice

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No. 06-1277
Erickson’s Flooring & Supply Co, Inc. v. Tembec, Inc.

requirement is harmless error.

                                              IV

       For the reasons set out above, we AFFIRM the district court’s grants of summary judgment.




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