09-4068-cv
Analect LLC v. Fifth Third Bancorp
                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 7 th day of June, two thousand ten.

PRESENT:         JOSEPH M. McLAUGHLIN,
                 CHESTER J. STRAUB,
                 REENA RAGGI,
                                          Circuit Judges.
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ANALECT LLC,

                               Plaintiff-Counter-Defendant-Appellant,

                               v.                                               No. 09-4068-cv

FIFTH THIRD BANCORP, FIFTH THIRD BANK,

                               Defendants-Counter-Claimants-Appellees,

THE CINCINNATI LIFE INSURANCE COMPANY,

                         Defendant.
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APPEARING FOR APPELLANT:                          THOMAS S. BIEMER (Patrick M. Northen,
                                                  D ilw orth Paxson L L P, Philadelphia,
                                                  Pennsylvania, Gregory A. Blue, Rachel K.
                                                  Marcoccia, Morgenstern & Blue, LLC, New
                                                  York, New York, on the brief), Dilworth Paxson
                                                  LLP, Philadelphia, Pennsylvania.
APPEARING FOR APPELLEES:                    PATRICK F. FISCHER (Daniel E. Izenson, Drew
                                            M. Hicks, Keating Muehing & Klekamp PLL,
                                            Cincinnati, Ohio, Adam L. Rosen, Lon J.
                                            Seidman, Silverman Acampora LLP, Jericho,
                                            New York, on the brief), Keating Muehing &
                                            Klekamp PLL, Cincinnati, Ohio.

       Appeal from the United States District Court for the Eastern District of New York

(Joseph F. Bianco, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on September 14, 2009, is

AFFIRMED.

       Plaintiff Analect LLC appeals from an award of partial summary judgment in favor

of defendants Fifth Third Bancorp (“Bancorp”) and Fifth Third Bank (“Fifth Third”) on its

claims alleging breach of contract. We review a summary judgment award de novo, viewing

the facts in the light most favorable to the non-moving party. See Havey v. Homebound

Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008). While we will not uphold an award of

summary judgment in favor of the defendants if the evidence is sufficient to permit a

reasonable jury to find for the plaintiff, Analect must point to more than a “scintilla” of

evidence in support of its claim to defeat summary judgment. Id. (internal quotation marks

omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In applying

these principles to this appeal, we assume the parties’ familiarity with the facts and the record

of prior proceedings, which we reference only as necessary to explain our decision to affirm.


                                               2
       1.       Jurisdiction

       “[W]e have allowed a plaintiff to appeal an adverse ruling disposing of fewer than all

of its claims following the plaintiff’s voluntary relinquishment of its remaining claims with

prejudice.” Chappelle v. Beacon Commc’ns Corp., 84 F.3d 652, 653 (2d Cir. 1996).

Consistent with this holding, Analect dismissed with prejudice those of its claims that

survived summary judgment before filing this appeal. Defendants, however, dismissed

certain of their counterclaims without prejudice.1 We conclude that defendants’ actions do

not raise a jurisdictional concern because their counterclaims for a declaration that the

contract between the parties is void and/or unenforceable were brought in response to

plaintiff’s claims of breach. In the absence of any imminent attempt to enforce that contract

– which would arise only if we were to reverse the district court’s award of summary

judgment – defendants’ counterclaims present no “actual controversy.” 28 U.S.C. § 2201(a);

see generally Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941) (holding

that “actual controversy” within meaning of Declaratory Judgment Act exists only where

“there is a substantial controversy, between parties having adverse legal interests, of

sufficient immediacy and reality to warrant the issuance of a declaratory judgment”); Sheet

Metal Div. of Capitol Dist. Sheet Metal, Roofing & Air Conditioning Contractors Ass’n v.

Local 38 of Sheet Metal Workers Int’l Ass’n, 208 F.3d 18, 23-26 (2d Cir. 2000) (concluding

that entry of declaratory judgment was premature and abuse of discretion because, inter alia,

       1
           The remaining counterclaims were dismissed as moot.

                                             3
lack of evidence indicating intent to enforce collective bargaining agreement against non-

signatories rendered “[i]t . . . hard to see how the likelihood that the Clause would be directly

enforced against [them] was sufficiently concrete to warrant a declaratory judgment”); cf.

Starter Corp. v. Converse, Inc., 84 F.3d 592, 595 (2d Cir. 1996) (noting in trademark context

that for purposes of declaratory judgment, actual controversy requires, inter alia, that

“defendant’s conduct create[] a real and reasonable apprehension of liability on the part of

the plaintiff”). Defendants’ dismissal is therefore properly understood to rest on mootness

grounds and, as such, is final. See generally Altman v. Bedford Cent. Sch. Dist., 245 F.3d

49, 70 (2d Cir. 2001) (“If a claim has become moot prior to the entry of final judgment, the

district court generally should dismiss the claim for lack of jurisdiction.”); Whisnant v.

United States, 400 F.3d 1177, 1180 (9th Cir. 2005) (noting that “dismissal for lack of subject

matter jurisdiction is a final judgment” within meaning of 28 U.S.C. § 1291); Banks v. Sec’y

of Ind. Family & Soc. Servs. Admin., 997 F.2d 231, 237 (7th Cir. 1993) (same). The

“without prejudice” denomination means simply that defendants’ counterclaims can be

revived only if they cease to be moot, which would occur only if this court reverses the

challenged summary judgment and reinstates plaintiff’s claim. For reasons explained in the

remainder of this order, we do not reverse the challenged award.




                                               4
       2.       Dismissal of Analect’s Claims Against Bancorp

       The district court concluded that Bancorp, the ultimate parent company of Fifth Third,

was not a party to the May 29, 2001 letter agreement (“Agreement”) and, therefore, could not

be held liable under its terms. Analect challenges this conclusion, arguing that because

Bancorp conducts business under the registered service mark “Fifth Third Bank,” it is in fact

a party to the contract. We disagree.

       Under New York law,2 “a parent corporation and its subsidiary are regarded as legally

distinct entities and a contract under the corporate name of one is not treated as that of both.”

Carte Blanche (Sing.) Pte., Ltd. v. Diners Club Int’l, Inc., 2 F.3d 24, 26 (2d Cir. 1993); see

De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69-70 (2d Cir. 1996). The Agreement here

at issue expressly pertains to the request by “Fifth Third Bank” for “certain information from

Analect LLC.” May 29, 2001 Letter Agreement. Nowhere does the Agreement mention

Bancorp. Indeed, the only signatories to the Agreement are an officer of Fifth Third

Insurance Services, Inc., a senior vice president of Fifth Third Bank (Chicago), and Analect’s

co-chief executive officers. Under these circumstances, we agree that Bancorp is not a party

to the Agreement.

       That Bancorp may own and use the service mark “Fifth Third Bank” does not alter

this conclusion, particularly given that Bancorp has no employees and – by all indications –



       2
           By its terms, the Agreement is to be construed in accordance with New York law.

                                               5
had absolutely no involvement in the formation of the Agreement. Under well-established

principles of corporate liability, Bancorp may be held liable under the Agreement only upon

“a showing of fraud or . . . complete control” of Fifth Third by Bancorp “lead[ing] to a wrong

against third parties.” Carte Blanche (Sing.) Pte., Ltd. v. Diners Club Int’l, Inc., 2 F.3d at

26. Analect has not alleged, much less proved, fraud or domination. Nor does it point to any

authority establishing that a parent company’s ownership of a service mark used by a

subsidiary is sufficient to overcome the presumption of corporate separateness. The district

court therefore properly awarded summary judgment in favor of Bancorp.

       3.     Analect’s Claims Against Fifth Third

       Because Analect dismissed with prejudice its claims that Fifth Third breached the

Agreement’s confidentiality provisions by using and communicating “Information” during

the course of its 2004 purchase of a financial product called SVSA BOLI (“the Product”),

we here consider only whether the district court properly rejected Analect’s claim that Fifth

Third’s purchase of the Product, standing alone, was a breach of the Agreement.

       To support its claim that Fifth Third could not purchase the Product without Analect’s

prior written consent, plaintiff points to the following contractual provision:

              We [Fifth Third] agree that, for so long as we retain or
              otherwise use any of the Information [provided by Analect], and
              for a period of five years after we return or destroy all of the
              Information to you in the manner provided for in the preceding
              paragraph, except pursuant to a specific written request from the
              Company [Analect], neither we, nor any of our affiliates or


                                              6
               Representatives, will (or will assist others to) develop, market,
               underwrite, distribute, coordinate the placement, administer or
               offer to any person, the Product or any product similar thereto
               without the prior written agreement of the Company.

May 29, 2001 Letter Agreement. Analect asserts that the provision is reasonably interpreted

to preclude Fifth Third from purchasing the Product because doing so “coordinate[s the

Product’s] placement” and constitutes a distribution. We are not persuaded.

       “A written contract will be read as a whole, . . . every part will be interpreted with

reference to the whole[,] and if possible it will be so interpreted as to give effect to its general

purpose.” Adams v. Suozzi, 433 F.3d 220, 228 (2d Cir. 2005) (internal quotation marks

omitted). Where the contract is unambiguous, “words and phrases . . . should be given their

plain meaning,” ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81, 88 (2d

Cir. 2009) (ellipsis in original) (internal quotation marks omitted); see also Krumme v.

WestPoint Stevens Inc., 238 F.3d 133, 139 (2d Cir. 2000), and the contract should be

interpreted without the aid of extrinsic evidence, see LaSalle Bank Nat’l Ass’n v. Nomura

Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005).              A contract will be deemed

unambiguous where its terms do not “suggest more than one meaning when viewed

objectively by a reasonably intelligent person who has examined the context of the entire

integrated agreement and who is cognizant of the customs, practices, usages and terminology

as generally understood in the particular trade or business.” Law Debenture Trust Co. of




                                                 7
N.Y. v. Maverick Tube Corp., 595 F.3d 458, 466 (2d Cir. 2010) (internal quotation marks

omitted).

       Contrary to Analect’s contention, the plain words used by the parties – particularly

when considered in light of the Agreement’s general purpose – do not manifest an intention

to preclude Fifth Third from purchasing the Product for its own internal use (as opposed to

resale or distribution). See Network Publ’g Corp. v. Shapiro, 895 F.2d 97, 99 (2d Cir. 1990)

(“[T]he words [of a contract] . . . are always the most important evidence of the parties’

intention.” (second alteration in original; internal quotation marks omitted)). The first

sentence in the Agreement states that “Fifth Third . . . has requested certain information from

Analect . . . in connection with our consideration of acting as a potential life insurance

product distributer [sic] . . . and possibly providing other services, in connection with

[Analect’s] distribution, either directly or indirectly through a subsidiary, of the Product.”

May 29, 2001 Letter Agreement. A “distributor” is “one that markets a commodity.”

Webster’s Third New Int’l Dictionary 660 (1986). “Market,” in turn, means “to expose for

sale in a market” or simply to “sell.”      Id. at 1383.    With this understanding of the

Agreement’s language, we have little difficulty concluding that the Agreement’s purpose is

to limit Fifth Third’s distribution, or sale, of the Product. The Agreement evinces no concern

with Fifth Third’s purchase of the Product.

       Viewed in this light, the provisions precluding Fifth Third from “develop[ing], . . .

distribut[ing], coordinat[ing] the placement, [or] administer[ing]” the Product cannot


                                              8
reasonably be interpreted as barring it from purchasing the Product for its internal use. May

29, 2001 Letter Agreement. Indeed, the prohibition on administering the Product is explicitly

limited to situations where the Product is “administer[ed] . . . to any person.” Id. Under the

circumstances, this phrase clearly contemplates the provision of Product-related services to

third parties, not to oneself.3 Because New York law requires that we “enforce [the] plain

meaning [of the parties’ bargain], ‘[r]ather than rewrite an unambiguous agreement,’”

Krumme v. WestPoint Stevens, Inc., 238 F.3d at 139 (third alteration in original) (quoting

American Express Bank Ltd. v. Uniroyal, 164 A.D.2d 275, 277, 562 N.Y.S.2d 613, 614 (1st

Dep’t 1990)), we affirm the award of summary judgment in favor of Fifth Third.

       4.     Conclusion

       We have considered Analect’s remaining arguments on appeal and conclude that they

are without merit. Accordingly, the September 14, 2009 judgment of the district court is

AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




       3
        For the same reason, Analect’s argument that Fifth Third breached the Agreement
by allowing Clark Consulting to develop, coordinate the placement of, or administer the
Product for Fifth Third is unavailing.

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