09-4243-cv
S A M B A E N TERPRISES , L TD . V. I M ESH , I N C .

                                       UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 26th day of August, two thousand and ten.

PRESENT:

           RALPH K. WINTER,
           JOSÉ A. CABRANES,
           CHESTER J. STRAUB,
                         Circuit Judges.


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SAMBA ENTERPRISES, LTD .,

                                  Plaintiff-Appellee,

           v.                                                                               No. 09-4243

IMESH , INC .,

                                  Defendant-Counter-Claimant-Counter-Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:                                                 Jeffrey A. Kimmel (Thomas L. Friedman and
                                                                         Howard Davis, of counsel), Meister, Seelig &
                                                                         Fein, LLP, New York, NY.

FOR PLAINTIFF-APPELLEE:                                                  Jason Advocate, Advocate & Lichtenstein, LLP,
                                                                         New York, NY.


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       Appeal from a judgment of the United States District Court for the Southern District of New
York (Denny Chin, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-Appellant iMesh, Inc. (“iMesh”) appeals from a May 12, 2009 Order and October
6, 2009 final judgment of the District Court awarding damages to Plaintiff-Appellee Samba Enterprises,
Ltd. (“Samba”). The action involves a March 2006 agreement between Samba, a software consulting
firm, and iMesh, an online media distribution company. We assume the parties’ familiarity with the facts
and procedural history of this case.

         iMesh appeals a series of findings by the District Court which held, as a matter of law, that (1)
the agreement between Samba and iMesh was a divisible contract; (2) the “faithless servant” doctrine
did not preclude Samba from entitlement to any commissions from its agreement with iMesh; (3) Samba
was entitled to a commission from iMesh’s agreement with IAC Search & Media, Inc. (“Ask”); (4) the
amount of the commission due should be based on the standard commission rate of the 2006 agreement
even if that agreement was divisible; and (5) the commission rate should equal 1.5% of the total revenue
earned by iMesh under its agreement with Ask.

        We review an order granting summary judgment de novo, drawing all factual inferences in favor
of the non-moving party. See, e.g., Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009).
Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c). A court faced with cross-motions for
summary judgment “need not enter judgment for either party. Rather, each party’s motion must be
examined on its own merits, and in each case all reasonable inferences must be drawn against the party
whose motion is under consideration.” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001)
(internal citation omitted).

         In its well-reasoned opinion of March 19, 2009, Samba Enterprises, Ltd. v. iMesh Inc., No. 06-CIV-
7660, 2009 WL 705537 (S.D.N.Y. Mar. 19, 2009), and its order of May 12, 2009, Samba Enterprises, Ltd.
v. iMesh, Inc., No. 06-CIV-7660 (S.D.N.Y. May 12, 2009), the District Court applied New York contract
law in a careful reading of the agreement between iMesh and Samba. For substantially the reasons stated
by the District Court, we affirm judgment disposing of all claims.




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                                   CONCLUSION

The judgment of the District Court as to all claims and counterclaims is AFFIRMED.



                                    FOR THE COURT,

                                    Catherine O’Hagan Wolfe, Clerk of Court




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