MEMORANDUM OPINION AND ORDER
This cause comes before the Court for consideration of the motion by Defendant, Tanning Research Laboratories, Inc. (herein “TRL”) for summary judgment. The Court
Factual Background
Plaintiffs Guillermo Pardo, Nicolas Winegardner, and their company Boston Do Brasil, Ltd. (herein “Boston”), have sued TRL for alleged fraud and negligent misrepresentations arising out of Boston’s attempt to distribute “Hawaiian Tropic” tanning and cosmetic products in Brazil. The remaining counts of the Amended Complaint
Bedinsol is a Uruguayan entity controlled by Marcel Pfeffer (Winegardner Deposition at 392 [Doc. No. 94]). Data Lab is a company owned by Juan Ignacio Edwards (Id. at 390). On January 26,1993, Bedinsol entered into an agreement in which it granted to Data Lab the exclusive distribution rights of Hawaiian Tropic tanning products for Brazil (Exhibit A to Amended Complaint). Data Lab, in early 1993,
According to Lewis (and not contradicted by Plaintiffs), TRL did have written distribution agreements with Marcel Pfeffer whereby he became an independent distributor of Hawaiian Tropic products for certain countries in South America, not including Brazil. (Id.)
Plaintiff alleges that TRL, through its agents Bedinsol and Data Lab, misrepresented to Plaintiffs that TRL owned the right to use “Hawaiian Tropic” name in Brazil. Plaintiffs contend that they relied on that misrepresentation, and began to distribute Hawaiian Tropic products in Brazil. The record reflects that Boston received, in Brazil, shipments of the products (Deposition Exhibits No. 191 and 192).
TRL, for its part, claims it had no knowledge, prior to December 6, 1993, of the contract between Boston and Data Lab, and Lewis swears (without contradiction) that he did not have any communication with Plaintiffs whatsoever prior to that date. (Id.)
Summary Judgment Standard
A party is entitled to judgment as a matter of law when the party can show that there is no genuine issue as to any material fact. Fed. R. Civ. Pro. 56(c). The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is mandated “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex, 477 U.S. at 323. In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255.
Analysis
Although Defendant raises several issues in its motion, the Court finds the lack of proof regarding agency to be dispositive.
Plaintiffs sue in tort, not contract, for misrepresentations allegedly attributable to TRL. There is no evidence that TRL directly made any representations to any of the Plaintiffs. Thus, Plaintiffs must prove vicarious liability, by showing actual agency or that Data Lab and Bedinsol (through Marcel Pfeffer) had apparent authority sufficient to characterize their status as “agents” of the principal, TRL.
Specifically, Plaintiffs rely on 1) representations made by Data Lab in the Boston distributor agreement that Data Lab had the consent of TRL to grant the exclusive right to sell its products in Brazil (see Deposition Exhibit 33);' 2) representations made by a notary public in a “certificate of representation” that Bedinsol had exclusive rights to market the products in Brazil (Deposition Exhibit 35); 3) TRL’s knowledge of Pfeifer’s activities to develop the market in Brazil; 4) the use of “Hawaiian Tropic” letterhead by Marcel Pfeffer; 5) Boston’s receipt of product in Brazil; and 6) Boston’s “open and notorious” use of “Hawaiian Tropic” promotional materials and products. Plaintiffs also argue that the existence of an agency is a fact question, best left to the jury.
While Plaintiffs are correct that the existence of an agency relationship is generally a fact question, when a party bearing the burden of proving agency fails to produce evidence in support of its allegations or where the evidence presented is so unequivocal that reasonable persons could reach but one conclusion, a court may determine the lack of agency as a matter of law. Campbell v. Osmond, 917 F.Supp. 1574, 1583 (M.D.Fla. 1996), applying Borg-Warner Leasing v. Doyle Electric Co., 733 F.2d 833, 836 (11th Cir.1984), cert. denied, 475 U.S. 1140, 106 S.Ct. 1790, 90 L.Ed.2d 336 (1986) (when inferences could be drawn, from facts adduced, fact question exists.)
Under Florida law,
Under the doctrine of apparent authority, agency will arise when the principal
The evidence cited by Plaintiffs, when viewed in its best light with all inferences in Plaintiffs’ favor, establishes only that TRL was actively pursuing the opening of the Brazilian market. It does not constitute proof that TRL even gave the impression that anyone was authorized to begin distribution in Brazil or to empower others to do so.
The representations made by Bedinsol and the notary public in the agreements are not representations made by TRL, nor is there evidence to show that such representations were made with its knowledge or consent. In fact, the Distributor agreement with Boston specifically references a trademark licensing agreement, which was never supplied by TRL. While the record shows that TRL had knowledge of some of Pfeffer’s activities in Brazil, there is no evidence to indicate that TRL had knowledge that Pfeffer was granting to others what he did not yet have himself — exclusive rights to distribute the products in Brazil. Plaintiffs admit that there was no contact with TRL at the time the “inducements” were allegedly made. The shipment of products and use of promotional materials all occurred well after the contract was formed. Subsequent actions by the principal may be sufficient to ratify a contract entered into by an agent with apparent authority, but this is not an action for breach of contract. Subsequent conduct of this character by the principal is not evidence to show that at the time the representations were allegedly made, the principal caused others to believe that the individual had authority to act on his behalf.
The only evidence that TRL acted in such a way is Pfeffer’s use of letterhead and promotional materials bearing the “Hawaiian Tropic” trademark. This is evidence of some authority, consistent with the pre-existing relationship between TRL and Pfeffer’s company. This is not, however, sufficient to charge TRL with liability for Pfeffer’s alleged tortious actions. There is no evidence that TRL knew that Pfeffer was using its trademark for purposes unrelated to the pre-existing relationship and Pfeffer was not purporting to act on behalf of TRL, as opposed to his own company, Bedinsol.
Plaintiffs are sophisticated businessmen who undertook this contract with professional advice. This is not a case of a casual reliance on a corporate employee who exceeded the bounds of his corporate authority. These plaintiffs knew they were not dealing with TRL or any employee of TRL. If, in deciding to go forward with this business venture, they relied on the (stated or unstated) representations of TRL, they had some obligation timely to inquire of TRL or at least make TRL itself aware of the reliance. Plaintiffs have not provided sufficient evidence to create a genuine issue that the letterhead of one company was sufficient to induce Plaintiffs to think it had the approval and support of another company to enter into a contract with yet another company.
Additionally, Plaintiffs must show that the statements were made in the course and the scope of the agency relationship and that Plaintiffs reasonably relied upon evidence of that agency relationship. Madio Group, 897 F.Supp. at 1412 (internal citations omitted). As a matter of law, any reliance on Bedinsol or Pfeffer’s representations that “Hawaiian Tropic” products could be sold in Brazil and
This is not to say that Plaintiffs were not harmed by their ill-fated foray into the “Hawaiian Tropic” quagmire in Brazil. However, Plaintiffs have not shown that this Defendant is hable in tort for the consequences of Plaintiffs’ actions.
Conclusion
The evidence presented does not show a genuine issue of material fact concerning whether Pfeffer or Bendisol or Data Lab had apparent authority to make representations on TRL’s behalf with respect to negotiating a contract to sell TRL’s products in Brazil. Summary judgment is therefore proper. It is ORDERED that:
1. Defendant’s motion for summary judgment (Doc. No. 87) is GRANTED.
2. The Clerk of Court is directed to enter judgment in favor of Defendant Tanning Research Laboratories, Inc. on all claims and awarding Defendant its costs.
3. Because of this disposition, the Court need not reach Defendant’s other arguments. Additionally, all other pending motions are DENIED as MOOT.
. The parties have consented to proceed before the United States Magistrate Judge pursuant to Title 28, United States Code, Section 636(c).
. Some of the exhibits relied upon by the parties are in Portugese. When provided, the Court relied upon the translations submitted. When translations were not provided, the Court could not review the document. It is, of course, incumbent on the party introducing the evidence to provide a comprehensible copy.
. By prior Order, the District Court dismissed Count III, alleging breach of fiduciary duty and Count IV, alleging tortious interference with contractual relations (Doc. No. 40).
. The agreement itself is undated.
. While Plaintiffs characterize Pfeifer’s status as an agent with apparent authority, they do not contest that no written contract exists in which TRL purports to grant Pfeffer or his company rights to distribute product in Brazil.
. The evidence indicates that, in fact, TRL was negotiating with other potential distributors, including Elite Modeling, for Brazil (Deposition Ex. 46, 59).
. Although the parties dispute whether or not the shipments were sent directly by TRL to Plaintiffs or whether TRL had knowledge that certain shipments were being diverted to Brazil (see Deposition Exhibits No. 70), this dispute is not material to the disposition of this motion. The claims allege fraudulent and negligent inducement to enter into the distributor contract. The fact that product may have been ordered and shipped (properly or improperly) to Brazil well after the contract was executed is not evidence that Defendant induced anything.
. The parties have briefed the issues under Florida law. The Court thus assumes, absent contrary suggestion from either party, that Florida law controls this diversity action.
. The letterhead does not mention "Tanning Research Laboratories, Inc.” but is that of “Hawaiian Tropic Latina Bedinsol, S.A.” (See Deposition Exhibit No. 26).
. See the District Court’s opinion dismissing the count for breach of a fiduciary relationship. (Doc. No. 40).
. There is, in fact, some evidence that Plaintiffs knew that they could not distribute the products until the trademark situation was remedied. Deposition Exhibit 74. As this letter is dated subsequent to the relevant dates, it is not evidence of what Plaintiffs knew at the time the representations were allegedly made.
. The Court makes no finding regarding the evidence of the less than straight-forward business practices of all concerned.