FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. Hon. F. Dennis Saylor, IV, U.S. District
Irving Siegal, with whom William C. Nystrom, Dana A.
Zakarian, and Nystrom Beckman & Paris LLP, were on brief, for
F. Remz, with whom Noemi A. Kawamoto, Donald K. Stern, and
Yurko, Salvesen & Remz P.C., were on brief, for appellee.
Thompson and Kayatta, Circuit Judges, and
Mastroianni,[*] District Judge. THOMPSON, Circuit
Judge, dissenting in part.
KAYATTA, Circuit Judge.
Direct, Inc. (" CNE" ) is a Massachusetts
corporation in the business of buying and reselling bulk
technological components. In November 2013, CNE reached an
agreement with Asset Recovery Associates Worldwide, Ltd.
(" Asset" ) to purchase phone parts manufactured by
BlackBerry Corporation (" BlackBerry" ). Asset
thereafter failed to make the parts available at the
agreed-upon price, causing CNE to suffer a substantial loss
in connection with its own commitment to resell the
parts to other parties. In addition to suing Asset, CNE seeks
to hold BlackBerry itself liable, contending that Asset was
acting as BlackBerry's actual or apparent agent in the
November 2013 transaction. After each party marshalled its
best evidence following full discovery, and after entering
default judgment against the now-defunct Asset, the district
court entered summary judgment in favor of BlackBerry.
CNE Direct, Inc. v. BlackBerry Corp., No.
14-cv-10149-FDS, 2015 WL 4750847, at *6, *11 (D. Mass. Aug.
10, 2015). After considering CNE's appeal, we affirm.
this is an appeal from a grant of summary judgment, we recite
the facts in the light most favorable to CNE, the non-movant,
and draw all reasonable inferences in its favor. See
Martinez v. Petrenko, 792 F.3d 173, 175 (1st Cir.
October 25, 2013, Asset received an email from BlackBerry
stating that it was " looking to move" excess
memory parts and listing its excess units. Asset forwarded
the email to CNE. CNE thereafter entered into discussions
with Asset on the terms pursuant to which Asset would supply
the BlackBerry parts to CNE. According to CNE, CNE and Asset
eventually reached agreement on the terms of a sale. CNE then
sent Asset a purchase order to confirm the agreed-upon deal.
The purchase order identified Asset as the "
supplier" of the parts and stated the agreed-upon price.
Asset then backtracked, first demanding a price increase of
approximately 2%, then an increase of approximately 28%. CNE
claims that Asset's back-tracking was an orchestrated
attempt by BlackBerry to take advantage of CNE's "
position of weakness." CNE complained to Asset, and also
sought intercession by BlackBerry, which declined.
will discuss, there was nothing about the foregoing
transaction and dealings in October and November 2013 that
would support an argument that Asset acted as an actual or
apparent agent of BlackBerry. As CNE points out, though, it
had prior dealings with Asset for the purchase and sale of
BlackBerry parts. Those prior dealings, CNE argues, provide a
course of conduct, or at least context, sufficient to cast
the aborted November 2013 transaction in a different light.
So we turn to consider those prior dealings.
2011, Christopher Tejeda, then a trader at CNE, first called
BlackBerry to inquire about purchasing excess inventory. He
reached Chris Efstathiou, the individual responsible for
managing BlackBerry's excess inventory. During their
initial phone conversation, Efstathiou told Tejeda that if he
wanted to purchase BlackBerry's excess inventory, he
should speak to Stephen Miele, the individual in control of
Asset. At the time, Asset was one of many third-party
resellers to which BlackBerry sold its excess inventory. CNE
suspected this was the case by October 2012 and knew it to be
true by October 2013, notwithstanding Miele's best
efforts to hold himself out as the " exclusive"
source of BlackBerry parts or as BlackBerry's "
agent" and BlackBerry's apparent lack of interest in
helping to connect CNE with a different inventory reseller.
thereafter dealt with Miele. An initial phone call between
Tejeda and Miele in May 2011 led to additional conversations
regarding the available BlackBerry parts and negotiations
over CNE's bid for the parts. Once CNE and Asset reached
an agreement, CNE prepared a " purchase order" to
confirm the purchase price, listing a company affiliated with
Asset as the supplier. When Asset passed this documentation
along to BlackBerry, BlackBerry objected and asked that it
listed as the supplier. CNE changed the purchase order form
to accommodate this request, received an invoice from
BlackBerry in return, and wired the funds directly to
BlackBerry. BlackBerry, in turn, paid Asset a five percent
commission on the sale.
next relevant transaction, in August 2011, followed a
slightly different course. Viewing the record most favorably
to CNE, it appears that BlackBerry first passed along a list
of its on-hand excess inventory to Asset. Asset disseminated
the lists to its customers, including CNE, seeking per-unit
bids. Asset then collated the bids it received and shared the
amounts of bids and identities of the bidders with
BlackBerry, profiting by reserving for itself a markup on the
products that varied between approximately 10% and 50% of the
bid. No written agreement governed the
terms of Asset's relationship with BlackBerry, though the
parties operated under an understanding that BlackBerry
retained the right to refuse to sell to Asset based on the
amount it was willing to pay for the parts or the identity of
the intended downstream purchaser.
CNE placed its bid with Asset and BlackBerry had informed
Asset that the bid was acceptable, CNE confirmed the
transaction by issuing to Asset a purchase order
memorializing the agreed-upon price. Asset then remitted a
" pro forma" invoice to confirm the exact quantity
of goods that would be sold. As with the original
transaction, CNE's purchase order identified BlackBerry
as the supplier. Unlike the first transaction, CNE did not
pay BlackBerry but instead wired funds to Asset or its
August 2011 and August 2012, the parties conducted seven
transactions for BlackBerry parts that followed this pattern
and amounted to approximately $836,000. At no point in the
parties' dealings did Asset take physical possession of
the goods. Rather, CNE retrieved the parts at
time, CNE grew frustrated with Miele's conduct. On August
30, 2012, CNE emailed BlackBerry and expressed frustration
with Miele. On October 23, 2012, CNE emailed BlackBerry to
complain about Miele's lack of professionalism. CNE at
that point had determined that Miele was untrustworthy and
had lied to CNE repeatedly. BlackBerry's response, from a
new manager who had taken over BlackBerry's dealings with
Asset, characterized CNE's acquisition of the parts as
involving two transactions, one between BlackBerry and Asset,
and a second between Asset and CNE. Consistent with this
characterization, the emailed response concluded as follows:
As for professional business standards, the purchase of the
LCD's was between you and Stephen and that is the forum
that should be maintained is it not? Sorry, but I don't
wish to get in the middle between yourself and Stephen as
relationships are important to myself and RIM as a whole. I
suggest you need to deal ...