This mаtter comes on before this court on Robert V. Baer’s (“Baer”) appeal from an order of the district court entered February 20, 2004, granting summary judgment to the defendants, David Chase and DC Enterprises, Inc. (together called “Chase”), pursuant to Federal Rule of Civil Procedure 56(c). This dispute centers on the creation and development of the well-known television series, The Sopranos. Through this action, Baer seeks compensation for what he perceives was his role in the creation and development of the popular and financially successful television series.
I. FACTUAL AND PROCEDURAL HISTORY
Chase, who originally was from New Jersey, but relocated to Los Angeles in 1971, is the creator, producer, writer and director of The Sopranos. Chase has numerous credits for other television productions as well. Before Chase met Baer, Chase had worked on a number of projects involving organized crime activities based in New Jersey, including a script for “a mob boss in therapy,” a concept that, in part, would become the basis for The Sopranos.
In 1995, Chase was producing and directing a Rockford Files “movie-of-the-week” when he met Joseph Urbancyk who was working on the set as a camera operator and temporary director of photography. Chase mentioned to Urbancyk that he was looking for new material and for writers who could develoр feature film screenplays that Chase later might rewrite and direct. Urbancyk also overheard Chase say that the creators of The Rockford Files were looking to assign additional writers for their “movie of the week” project.
Urbancyk became the connection between Chase and Baer as a result of Ur-bancyk’s long-time friendship with Baer and his knowledge of Baer’s interest in pursuing a career in writing, directing and producing. Baer, who was a New Jersey attorney, recently had left his employment in the Union County Prosecutor’s Office in Elizabeth, New Jersey, where he had worked for the previous six years.
*613 Urbancyk urged Baer to write a script for The Rockford, Files. Baer did so and gave it to Urbancyk who passed it on to Chase. Chase considered Baer’s work “interesting” and asked Urbancyk if Baer had any plans to be in Los Angeles. Upon hearing of Chase’s interest, Baer flew to Los Angeles to meet with Chase.
Chase, Urbancyk and Baer met for lunch on June 20, 1995. At that time Chase informed Baer that he would be unable to use Baer’s screenplay, as the remaining slots in The Rockford Files had been filled. The lunch continued, however, with Baer describing his experience as a prosecutor. Baer also pitched the idea to shoot “a film or television shows about the New Jersey Mafia.” App. at 40. At that time Baer was unaware of Chase’s previous work involving mob activity рremised in New Jersey. At the lunch there was no reference to any payment that Chase might make to Baer for the latter’s services and the parties agree that they did not reach any agreement on that day.
In October 1995, Chase visited New Jersey for three days. During this “research visit” Baer arranged meetings for Chase with Detective Thomas Koezur, Detective Robert A. Jones, and Tony Spirito who provided Chase with information, material and personal stories about their experiences with organized crime. Koezur served as a tour guide and drove Chase and Baer to various locations in northern New Jersey. Koezur also arranged a lunch between Chase and Spirito. Spirito told true and sometimes personal stories involving loan sharking, a power struggle with two uncles involving a family business, and two individuals, Big Pussy and Little Pussy Russo. 1 Chase also met with Jones, a detective with the Union County Prosecutor’s office who had experience investigating organized crime. Baer does not dispute that virtually all of the ideas and locations that he “contributed” to Chase existed in the public record.
After returning to Los Angeles, Chase sent Baer a copy of a draft of a Sopranos screenplay that he had written, which was dated December 20, 1995. Baer asserts that after he read it he callеd Chase and made various comments with regard to it. Baer claims that the two spoke at least four times during the following year and that he sent a letter to Chase dated February 10, 1997, discussing The Sopranos script. Baer ensured that Chase received the letter by confirming its arrival with Chase’s assistant. On this appeal we accept Baer’s allegations regarding his input into The Sopranos draft.
Notwithstanding his February 10, 1997 letter, at his deposition Baer claimed that he last rendered services to Chase in 1995. Thus, Baer’s testimony included the following:
Q. During any of those conversations after October of 1995, [when Chase visited New Jersey] did you provide any further information to Mr. Chase other than in relation to the sexual assault?
A. Not really.
Q. No?
A. Not really. The screen play was done and there wasn’t really any need for it at that point as far as I knew. Q. So everything that you had done and to which you claim entitlement was done by the end of October 1995?
A. Yes in terms of assisting him in helping with this project that would be true.
App. at 343-44. 2 Notwithstanding this testimony, in Baer’s later certification dated October 3, 2003, in opposition to Chase’s motion for summary judgment he sought to clarify his deposition testimony, stating:
*614 117. I also sent him a letter dated February 10, 1997 discussing the Sopranos script prior to making a trip to Los Angeles. After sending the letter, I spoke with Chase’s assistant, Kelly Kockzak, who confirmed that Chase had rеceived it. This letter represents the last services I provided to Defendants. Most of my services were provided in 1995.
App. at 69.
Baer asserts that he and Chase orally agreed on three separate occasions that if the show became a success, Chase would “take care of’ Baer, and “remunerate [Baer] in a manner commensurate to the true value of [his services].” App. at 113. According to Baer, he and Chase first made this oral agreement on the telephone during one of their first two or three conversations during the summer of 1995. The second occasion was on the telephone and occurred immediately prior to Chase’s October 1995 visit to New Jersey. The third time the parties reached the agreement was in person when they met in New Jersey in October 1995.
Baer claims that on each of these occasions the parties had the same conversation in which Chase offered to pay Baer, stating “you help me; I pay you.” App. at 112-13. Baer always rejected Chase’s offer, reasoning that Chase would be unable to pay him “for the true value of the services [Baer] was rendering.” Id. Each time Baer rejected Chase’s offer he did so with a counteroffer, “that I would perform the services while assuming the risk that if the show fаiled [Chase] would owe me nothing. If, however, the show succeeded he would remunerate me in a manner commensurate to the true value of my services.” Id. at 113. Baer acknowledges that this counteroffer, which in these proceedings we treat as having become the parties’ agreement, always was oral and did not include any fixed term of duration or price. There is no other evidence in the record of any other discussion between Baer and Chase regarding the terms of the contract. For purposes of the motion for summary judgment, Chase accepts Baer’s version of the events as true and thus concedes there was an oral agreement to the extent that Baer sets it forth. Notwithstanding this agreement, insofar as we can ascertain, other than Baer’s calls to Chase after he received the Sopranos script, the next time Baer heard anything from or about Chase was when he received a phone call from Detective Koczur telling him that Chase was in Elizabeth shooting The Sopranos. In fact, Chase has not paid Baer for his services.
On or about May 15, 2002, Baer filed a verified complaint against Chase in the district court and thereafter on May 2, 2003, Baer filed an amended verified complaint. Baer’s amended complaint advanced ten claims: (1) breach of contract; (2) breach of impliеd contract; (3) breach of quasi-contract; (4) common law fraud; (5) equitable fraud; (6) negligent misrepresentation; (7) breach of fiduciary duty; (8) unfair competition under section 43(a) of the Lanham Act, 15 U.S.C. § 1125; (9) unfair competition and misappropriation under N.J. Stat. Ann. § 56:4-1 (West 2001); and (10) tortious interference with prospective economic advantage. App. at 137-48. Baer subsequently withdrew the federal unfair competition claim. 3 Eventu *615 ally Chase brought a motion for summary judgment under Federal Rule of Civil Procedure 56(c) alleging that there was no genuine issue as to any material fact and: he was entitled to a judgment as a matter of law. Chase claimed that the, alleged contract and implied contract were too vague, ambiguous and lacking in essential terms to be enforced and the statute of frauds barred the actions based on them. Moreover, Chase claimed that the statute of limitations barred the breach of quasi-contract quantum meruit claim. Finally, Chase alleged that each of Baer’s six remaining claims was lacking in merit. Baer did not file a cross-motion for complete or partial summary judgment.
The district court granted Chase’s motion, concluding that there was no genuine issue of material fact with respect to any of Baer’s claims. The district court held with respeсt to the claims raised on this appeal that: the contract claims were unenforceable due to vagueness, uncertainty, and the lack of essential terms in the contract; the statute of limitations barred the quasi-contract claim; and the misappropriation tort claim was without merit due to a lack of novelty. In addition, the district court made certain rulings with respect to evidence that we describe below which Baer challenges.
II. JURISDICTION AND STANDARD OF REVIEW
The district court exercised diversity jurisdiction pursuant to 28 U.S.C. § 1332 in that the parties were of diverse citizenship and the amount in controversy exceeded $75,000 exclusive of interest and costs. Our jurisdiction is founded on 28 U.S.C. § 1291, as this timely appeal is from a final order of the district court granting Chase’s motion for summary judgment. We make a plenary review of the district court’s order granting summary judgment to Chase.
See Fakete v. Aetna, Inc.,
III. DISCUSSION
A. Baer’s Implied-In-Fact Contract Claim
Baer predicates his contract claim on this appeal on an implied-in-fact contract rather than on the oral agreement he reached with Chase. The issue with respect to the implied-in-fact contract claim concerns whether Chase and Baer entered into an enforceable contract for services Baer rendered that aided in the creation and production of The Sopranos. In the district court Baer offered two alternative theories in which a purported contract was formed: the “oral agreement/success contingency” and an implied-in-fact contract.
The parties agree for purposes of the summary judgment motion that there was a contingent oral agreement providing for Chase to compensate Baer, depending on Chase’s “success,” in exchange for the aid Baer provided in the creation and production of The Sopranos. As we noted above, the parties reached the oral agreement in three exchanges in which Baer proposed: “that I would perform the services while assuming the risk that if the show failed [Chase] would owe me nothing. If, however, the show succeeded he would remunerate me in a manner commensurate to the true value of my services.” App. at 113. As we have indicated, for purposes of the summary judgment motion only, Chase accepts this version of the events so we will regard the existence of the oral agreement as not in dispute.
*616
The district court held, and Baer concedes on appeal, that this oral agreement was “too vague to be enforced” as an express contract. Appellant’s br. at 30-31;
see Baer v. Chase,
1. The Distinction Between Express And Implied-In-Fact Contracts
The distinction between express and implied contracts rests on alternative methods of contract formation. Contracts are “express” when the parties state their terms and “implied” when the parties do not state their terms. The distinction is based not on the contracts’ legal effect but on the way the parties manifest their mutual assent.
In re Penn. Cent. Transp. Co.,
Baer’s attempt to find an implied-in-fact contract in his dealings with Chase does not strengthen his claim that Chase breached his contract with him. There is only one contract at issue, Chase’s promise to compensate Baer for services he rendered which aided in the creation and production of
The Sopranos.
Chase’s stipulation that there was such a contract has the consequence of making Baer’s attempts to label this agreement “implied” rather than “express” to advance a distinction without a difference as the mode of contract formation, as we will explain, is immaterial to the disposition of the breach of contract claim. In other words, inasmuch as the parties agree for purposes of these summary judgment proceedings that there was an agreement, the manner in which they formed the contract is immaterial because different legal consequences do not flow from analyzing the alleged contract as implied-in-fact rather than express.
See Saint Barnabas Med. Ctr. v. Essex County,
Moreover, Baer’s claim of an implied-in-fact contract, in the face of an express agreement governing the same subject matter, is legally untenable. There cannot be an implied-in-fact contract
*617
if there is an express contract that covers the same subject matter.
In re Penn Cent. Transp. Co.,
In
In re Penn Central Transportation Company,
In response, Penn Central put forth an . interpretation of the Act in which the alleged unauthorized activities would have been acceptable under its requirements. In the alternative, it maintained that it had an entered into a separate and enforceable implied-in-fact contract with the government to continue using these funds for the activities in which it was engaged, even if they were deemed outside the scope of the Act. Id. at 1225.
We focused on and disallowed the railroad’s attempt to prove the existence of both express and implied-in-fact agreements dealing with the same subject. We stated, “no implied-in-fact contract may be found when, as here, the parties have an express agreement dealing with the same subject.” Id. at 1229. The operative principle here and in Penn Central Transportation Company is the same. As noted above, there is only one agreement at issue in the present case, Chase’s promise to pay Baer for the services he rendered. Chase concedes the existence of the oral express agreement as alleged by Baer. Consequently, the fundamental contract law principle that implied and express contacts are mutually exclusive forecloses Baer’s attempt to establish that there was an implied-in-fact contract.
New Jersey law, applicable here, recognizes the mutual exclusivity of express and implied contracts.
Roselle Park Bldg. & Loan Ass’n v. Friedlander,
Baer’s alleged implied-in-fact contraсt, however, rather than being distinct from or unrelated to the express oral contract is identical to it. The stipulated oral agreement included Chase’s promise to compensate Baer for the services and *618 ideas that Baer provided Chase. Baer now asks that we find an implied-in-fact contract that subjects Chase to liability for the very same undertaking. Baer provides a litany of facts which indicate that Chase may have used his services or prospered from his ideas. Nevertheless, in light of Chase’s stipulation to the existence of an agreement governing this subject matter, this evidence is immaterial to the issues raised by the summary judgment motion with respect to Baer’s attempt to establish that there was an implied-in-fact contract between the parties.
The question is not whether Chase entered into an agreement with Baer or whether Chase utilized his ideas. We already deem these matters, for the purposes of the motion for summary judgment and this appeal, as established. The question is whether Chase’s nonverbal actions prove there was a contract distinct from the express agreement or expanding on the terms of the agreement to make it enforceable. The answer is clearly that the actions do not do so. Thе alleged implied-in-fact contract completely mirrors the acknowledged express contract’s subject matter. Baer nowhere demonstrates that the subject matter of the alleged implied-in-fact contract is distinct, more definite in terms of price and duration, or covers a subject matter divergent from the oral agreement. The district court, therefore, would have erred if it had analyzed this case on the basis that there was a separate implied-in-fact contract distinct from the express contract that governed the identical subject matter.
2. Definitiveness As To Price and Duration In An “Idea Submission” Case
Even assuming that Baer had been able to demonstrate that he had an implied-in-fact contract with Chase, his contention that an implied-in-fact contract claim in an idea submission case need not be definite as to price and duration, would be incorrect. Baer asserts that the district court’s holding “that the absence of a price and duration term render[s] an implied contract in an idea submission scenario too vague to be enforced ... is contrary to the law in virtually every jurisdiction that has ever considered the issue.” Appellant’s br. at 34. Baer’s claim fails on three grounds: (1) there is no distinction between express аnd implied contracts, aside from issues of contract formation; (2) definiteness with respect to price and duration is necessary for idea submission cases under New Jersey contract law; and (3) the district court was correct in holding that the contract Baer alleges existed was too ambiguous and indefinite to be enforceable.
a. An Implied-In-Fact Contract Has The Same Legal Consequences As An Express Contract.
In fact there are no distinctions in legal effect, at least in the context of this case, when a promise is implied rather than express.
See Duffy v. Charles Schwab & Co.,
b. A Contract Involving An Idea Submission Must Be Definite With Respect To All Essential Terms To Be Enforceable Under New Jersey Contract Law.
In fact “[a] cоntract arises from offer and acceptance, and must be suffi
*619
ciently definite so ‘that the performance to be rendered by each party can be ascertained with reasonable certainty.’ ”
Weichert Co. Realtors v. Ryan,
New Jersey contract law focuses on the performance promised when analyzing an agreement to determine if it is too vague to be enforced. “An agreement so deficient in the specification of its essential terms that the performance by each party cannot be ascertained with reasonable certainty is not a contract, and clearly is not an enforceable one.”
Lo Bosco v. Kure Eng’g Ltd.,
New Jersey law deems the price term,
i.e.,
the amount of compensation, an essential term of any contract.
MDC Inv. Prop., L.L.C. v. Marando,
The New Jersey Supreme Court explicitly has held that an implied-in-fact contract “must be sufficiently definite [so] that the performance to be rendered by each party can be ascertained with reasonable certainty.”
Weichert,
Baer premises his argument on his view that New Jersey should disregard the well-established requirement of definiteness in its contract law when the subject-matter of the contract is an “idea submission.” He cites extensively to a string of cases from various jurisdictions which he urges support his contention.
See, e.g., Wrench L.L.C v. Taco Bell Corp.,
Baer’s argument is inaccurate and misleading. He attempts to transform cases where the issues raised pertain to adequacy of consideration and discrepancies over the use of submitted facts, into the proposition that implied-in-fact contracts involving idea submissions need not be sufficiently definite. For example:
Wrench,
New Jersey precedent does not support Baer’s attempt to carve out an exception to traditional principles of contract law for submission-of-idea cases. The New Jersey courts have not provided even the slightest indication that they intend to depart from their well-established requirement that enforceability of a contract requires definiteness with respect to the essential terms of that contract. Accordingly, we will not relax the need for Baer to demonstrate definiteness as to price and duration with respect to the contract he entered into with Chase.
3. The Alleged “Contract” Regardless Of Labels Is Too Vague To Be Enforced.
The final question with respect to the Baer’s contract claim, therefore, is whether his contract is enforceable in light of the traditional requirement of definitiveness in New Jersey contract law for a contract to be enforceable. A contract may be expressed in writing, or orally, or in acts, or partly in one of these ways and partly in others.
Troy v. Rutgers,
168
*621
N.J. 354,
Nothing in the record indicates that the parties agreed on how, how much, where, or for what period Chase would compensate Baer. The parties did not discuss who would determine the “true value” of Baer’s services, when the “true value” would be calculated, or what variables would go into such a calculation. There was no discussion or agreement as to the meaning of “success” of
The Sopranos.
There was no discussion how “profits” were to be defined. There was no contemplation of dates of commencement or termination of the contract. And again, nothing in Baer’s or Chase’s conduct, or the surrounding circumstances of the relationship, shed light on, or answers, any of these questions. The district court was correct in its description of the contract between the parties: “The contract as articulated by the Plaintiff lаcks essential terms, and is vague, indefinite and uncertain; no version of the alleged agreement contains sufficiently precise terms to constitute an enforceable contract.”
Baer,
B. Baer’s Quasi-Contract Claim
Our rejection of Baer’s implied-in-fact contract claim does not preclude him from recovering on his quasi-contract claim and thus in view of the district court’s disposition of that claim we consider when the statute of limitations started running on it. This inquiry has two parts: (1) application of the discovery rule; and (2) whether the district court erred in disregarding Baer’s certification in opposition to Chase’s motion for summary judgment, particularly when it is clear that evidence in the record corroborated the certification. The court disregarded the certification on the grounds that it conflicted with Baer’s prior deposition testimony. This statute of limitations inquiry is critical as the district court did not reject the quasi-contract claim on the merits, and there is no doubt that in an appropriate case, depending on the facts, that a party may recover on a quasi-contract claim even if there was no actual contraсt.
If, in fact, Baer’s deposition was accurate, everything to which he claims entitlement for compensation had been completed by the end of October 1995, some six years and seven months before he filed this lawsuit. In that circumstance, as we explain below, the district court would have held correctly that the New Jersey statute of limitations barred Baer’s quasi-contract claim unless the discovery rule postponed the commencement of the limitations period. But the deposition testimony may have been incomplete as there is evidence in the record refuting the portion of it indicating that Baer’s last rendition of services was in October 1995, as it is undisputed that Baer sent a letter to Chase on -February 10, 1997, critiquing Chase’s early screenplay of The Sopranos. Indeed, this letter was already in the record at the time of the deposition. In addition, Baer corrected the “misstatement” in his deposition by reference to the “undisputed facts that were already in evidence” in his certification in opposition to Chase’s motion for summary judgment.
Preliminarily on the statute of limitations issue we observe that under New Jersey law, non-personal injury actions involving monetary damages must be
*622
“commenced within 6 years after the cause of any such action shall havе accrued.” N.J. Stat. Ann. § 2A:14-1 (West 2000). Moreover, there is no dispute between the parties that the six-year statute of limitations governs quasi-contract claims.
See Kopin v. Orange Prods., Inc., 2S1
N.J.Super. 353,
Baer challenges the district court’s holding that a quasi-contract claim “accrued, if at all” for the purposes of statute of limitations, when Baer rendered his final services in October 1995.
Baer,
In New Jersey as elsewhere “[t]he discovery rule postpones the commencement of a cause of action until a Plaintiff knows, or should have known, of facts which establish that an injury has occurred, and that fault for that injury can be attributed to another.”
Riemer v. St. Clare’s Riverside Med. Ctr.,
Baer, however, does not cite any New Jersey decision applying thе discovery rule to delay the time when the statute of limitations begins to run on a quasi-eon-tract claim.
4
Moreover, while most jurisdictions have not ruled explicitly on whether the discovery rule should apply in
quantum meruit
cases, those that have addressed the issue have chosen not to utilize the discovery rule, but rather to employ a “last rendition of services” test. Thus, in
Rabinowitz v. Mass. Bonding & Insurance Co.,
Baer’s rationale in urging us to adopt the discovery rule for
quantum meruit
claims is doctrinally untenable as well. He alleges that “at the time Plaintiffs services were completed, Plaintiff reasonably believed that remuneration for those services was governed by a contractual agreement contingent upon the success of the show.” Appellant’s br. at 59. Baer therefore contends, “there is no possible way that Plaintiff knew or should have known that a cause of action had accrued until such time as
The Sopranos
aired on January 10,1999.”
Id.
He misunderstands the nature of a
quantum meruit
claim with respect to the statute of limitations. “In cases based on quasi-contract liability, the intention of the parties is entirely disregarded .... ”
Callano v. Oakwood Park Homes Carp.,
Zic v. Italian Government Travel Office,
It is clear that any application of the discovery rule would be inappropriate in analyzing whether the statute of limitations ran on Baer’s quantum-meruit claim. The district court was therefore correct in utilizing a last rendition of services test to analyze whether Baer’s claim was time barred.
The district court, utilizing the last services rendered test, held that the statute of limitations barred Baer’s quasi-contract claim based on his deposition testimony that he last rendered services in October 1995. The district court disregarded Baer’s later certification and the February 10,1997 letter, holding:
[I]n this case, the Plaintiffs deposition testimony regarding the date that performance was complete was a fact of crucial importance to his case, his performance and the February 10, 1997 letter were the subject of extensive questioning, and the Plaintiff had access to the-relevant information at the time of his deposition.
Baer,
This disposition brings us to the second aspect of our statute of limitations discussion, the “sham affidavit” doctrine.
*624
In this regard we have held that a party-may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.
Hackman v. Valley Fair,
The “sham affidavit” doctrine has its roots in the Court of Appeals for the Second Circuit’s decision in
Perma Research & Development Co. v. Singer Co.,
If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues оf fact.
Id. at 578.
While many state and federal jurisdictions have incorporated the logic of
Perma
in assessing subsequently filed conflicting affidavits following a deposition, its application has not been applied without regard for the surrounding circumstances. 11 Janies Wm. Moore, et al.,
Moore’s Federal Practice
§ 56.14[l][f| at 56-179 (3d ed. 1997) (“If a party’s deposition and affidavit are in conflict, the affidavit is to be disregarded unless a legitimate reason can be given for discrepancies.”). Thus, it is clear that merely because there is a discrepancy between deposition testimony and the deponent’s later affidavit a district court is not required in all cases to disregard the affidavit.
Kennett-Murray Corp. v. Bone,
In
Kennett-Murray,
The court of appeals recognized that a court “cannot disregard a party’s affidavit *625 merely because it conflicts to some degree with an earlier deposition” and that “a genuine issue can exist by virtue of a party’s affidavit even if it conflicts with earlier testimony of the party’s deposition.” Id. at 893. In reversing the summary judgment order, it held that the subsequent affidavit was in fact not a “sham,” as the defendant’s affidavit did not claim to raise a new or distinct matter, but rather explained certain aspects of his deposition testimony that caused confusion. Id. at 894. The court additionally relied on the fact that the affidavit could not be said to constitute a reformulation of the defendant’s general defense nor was it at odds with the general theory he put forth in the deposition. Id. at 894-95.
In
Martin v. Merrell Dow Pharmaceuticals, Inc.,
Baer argues that his deposition statement was “clearly, and understandably, mistaken,” reasoning that “he was thinking in terms of the overwhelming majority of his services.” Appellant’s br. at 62. The district court refused to accept Baer’s “mistake” argument, relying on the fact that the matter that was of critical importance to his claim and the subject of repeated questioning.
Baer,
If Baer had advanced only the argument that he had made a mistake, exclusion of the later certification might have been appropriate. The district court, however, overlooked the importance of the evidence existing in the record, i.e., the February 10, 1997 letter thаt buttressed Baer’s subsequent certification. We therefore must address the question of whether corroborating evidence as to the substance of a later certification ameliorates the concerns that gave rise to the “sham affidavit” doctrine, thereby allowing a subsequent competing affidavit to create a dispute as to a genuine issue of a material fact.
When there is independent evidence in the record to bolster an' otherwise questionable affidavit, courts generally have refused to disregard the affidavit.
See Bushell v. Wackenhut Int’l, Inc.,
Baer’s ability to point to evidence in the record that corroborates his later affidavit alleviates the concern that he merely filed an erroneous certification out of desperation to avoid summary judgment. Moreover, Chase does not deny receiving the letter and his personal assistant told Baer that Chase, in fact, had received the letter. And finally, Chase himself has provided the letter in discovery. Given this evidence which corroborates the certification, the concern that Baer’s claim that he performed services as late as February 10,1997, is either desperate or erroneous is eliminated, and therefore the court should have analyzed the letter and the circumstances surrounding it and Baer’s certification when ruling on the summary judgment motion on the statute of limitations issue. 5 The district court therefore erred, at least procedurally, in granting Chase’s summary judgment motion based on the statute of limitations with respect to Baer’s quantum meruit claim. We therefore will reverse the summary judgment on this point and will remand the question of whether Baer presented a timely and otherwise valid quasi-contract claim to the district court for further consideration. 6
*627 C. Baer’s Misappropriation Claim
Baer next raises the issue of whether the district court erred in holding that the fact that the ideas he advanced existed in the public domain precluded those ideas, alone or in combination, from" possessing the requisite novelty so that their use cannot be the basis for a claim for common law ■ idea misappropriation. The cause of action of “misappropriation” is based on tort principles rather than on contract law. Restatement (Third) of Unfair Competition § 40, cmt. a. The premise behind the tort is that when a party misappropriates another’s confidential idea or some other type of property, the law imposes an obligation on that party to pay the other restitution for its improper use.
Id.; Duffy,
There is no dispute between the parties that this ease is governed by the leading precedent on the misappropriation of ideas in New Jersey,
Flemming v. Ronson Corp.,
Thus, the misappropriation issue on appeal is whether the ideas Baer provided were novel. While novelty is clearly a prerequisite to establish a misappropriation claim in New Jersey,
Johnson,
As the district court noted in
Duffy,
it is unclear whether the issue of novelty is “an issue of fact, for the fact finder, a question of law, for the jury or a mixed question of fact and law.”
Duffy,
The predicates on which a property right in an idea may be based are novelty and originality.
See Downey v. General Foods Corp.,
The district court here acknowledged Duffy’s observation that the law of “unfair competition ‘is an amorphous area of jurisprudence’ and ‘knows of no clear boundaries.’”
Baer,
The present facts, however, do not compel us to set forth a broad description of what is novel in our disposition of Baer’s misappropriation claim. Though
Flem-ming
did not articulate a test for affirmatively determining when an idea is “novel,” the court did cite examples of ideas that would
not
be novel. The
Flemming
court recognized that even an otherwise novel idea would lose its novelty if it was “in the domain of public knowledge” before the defendant used it.
Flemming,
Baer admits that all of the locations he identified to Chase exist in the public domain. 7 In addition, many of the stories and potential plot lines that Baer “provided” Chase existed in the public record. 8 Moreover, as the district court noted, the additional ideas and stories that Baer claims were misappropriated were not his stories; “associates” of Baer actually told them to Chase:
In particular, the Plaintiff seeks compensation for Spirito’s story of rivalry with his uncles in the aftermath of his father’s death, that Koczur’s account to Chase that many waste management companies were alleged to be involved with organized crime, Spirito’s story of his experiences with a ‘loan shark’ and Jones’s description of the way in which organized crime uses loan shark debts to take over a business, Jones’s description of the operation of ‘cutout’ schemes used by organized crime, Koczur’s information regarding the involvement of the DeCavalcante crime family in Saint Anthony’s Church in Elizabeth, and a story told to Chase by Jones about Morris Levy’s horse farm.
Baer,
■ Baer argues that he did not simply introduce these third-parties to Chase, but rather “the majority of ideas were suggested by Plaintiff prior to the meeting.” Appellant’s br. at 67. Baer alleges that his aggregating and combining of ideas was essential in “put[ting] it all together” and “creat[ing] the ‘template’ for The Sopranos.” Appellant’s br. at 66. Baer alleges that it is “their combination that gives these ideas originality.” Id. at 68. In other words, Baer’s contribution in essence was “choosing” which ideas, existing in the public domain, he would present to Chase.
Aggregation of ideas and expression do not by themselves create novelty. In
Duffy
the plaintiff argued that “its idea was novel because [it] spent many months deciding the organization and layout of the data so its products could be readily understood by nonprofessional investors.... [It] stated that it was the format that made Duffy’s reports unique and proprietary to [it].”
D. District Court’s Exclusion of Expert Report
The final issue raised on appeal is whether the district court abused its discretion by excluding Baer’s expert report from consideration on issues of liability. Early in the litigation, the court bifurcated the case into liability and damage phases, with expert discovery not being contemplated or authorized by any scheduling order. Baer’s attorney later retained John Agoglia as an “expert witness” regarding “the damages aspect of case” to be used by Baer “should [Defendant] raise an issue regarding the calculation of damages at summary judgment.” App. at 902, 914.
Faced with the summary judgment motion, Baer attempted to include Agoglia’s report which stаted “a contribution of such ideas and services [as those made by Baer] toward the creation of a television series such as The Sopranos ... would commonly be rewarded with fixed payments and/or production bonuses and or a sliding scale of profit participation and/or screen credits in recognition of such contributions, or any combination thereof.” App. at 27. The district court excluded Agoglia’s report based on the fact that he was not presented as a liability expert and that his report did not opine on liability. App. at 175.
The district court did not abuse its discretion by disregarding the report with respect to a summary judgment motion focusing solely on issues of liability. Agoglia was not presented as an expert on liability. We agree with the court’s assessment that, “I don’t see how somebody who was put forth under Rule 26 as a damages expert is going to be able to bootstrap liability issues into a summary judgment motion.” App. at 196. The damage expert’s testimony had no relevance to the questions of formation or enforceability of the purported contract. Chase named Agoglia to be an expert witness on damages; his opinions with respect to liability are simply beside the point.
Baer’s brief allocates little space in presenting an argument as to how the court erred in excluding the damages report from the liability phase of the trial. Bear clearly presented Agoglia as a damages expert to the district court and his adversary. The court did not err in refusing Baer’s attempts to “bootstrap” a damages witness who repeatedly agreed that he had no legal training to testify as an expert on liability.
IV. CONCLUSION
Inasmuch as the district court erroneously disregarded Baer’s certification, which, if considered, might have precluded the grant of summary judgment on the quantum meruit claim on a statute of limitations basis, we will reverse the order of the district court entered February 20, 2004, and remand the case for further proceedings in the district court solely on that claim. Otherwise we will affirm the order of February 20, 2004. The parties will bear their own costs in this appeal.
Notes
. These or similar story lines and characters have appeared in episodes of The Sopranos.
. The reference to the "sexual assault” is not material to the issues here.
. The district court indicated that Baer partially withdrew his federal and state unfair competition and misappropriation claims,
Baer v. Chase,
. The only case that Baer cites purporting to apply the discovery rule to a quasi-contract claim is a New York case,
German v. Pope John Paul,
. Chase argues that even if we refuse to disregard the February 10, 1997 letter, "the letter cannot be characterized as a compensable ‘service’ as a matter of law.” Appellees' br. at 42. Chase contends that we should disregard the February letter on two grounds, the first of which is its timing. Chase did not receive the letter until some 14 months after he mailed the screenplay to Baer, as well as after all the major networks had rejected the draft. Chase argues that even if the letter had value at one time, it had no value to him when he actually received it. Second, Chase argues that the letter had no value to him as it contained only cursory observations and laudatory phrases about his work. Chase premises his argument on the assumption that in analyzing the statute of limitations for quantum meruit purposes we should dissect the last service rendered to deem if it provided value to the opposing party.
We will not affirm the summary judgment on this basis. First, Baer's letter describes the aspects of the screenplay that he believes were successful, the parts to which he related personally, and what humor worked, and provided encouragement to continue with the project. App. at 22. We will not write these contributions off, as Chase attempts to do, as "empty flattery.”
Additionally, we will not dissect each interaction between litigants to quantify the precise value of each correspondence or service rendered. The exchange of ideas and services should not be viewed as incremental, segrega-ble interactions that we can assess individually for purposes of the statute of limitations. A separate issue would arise if a litigant sent a correspondence or rendered a "sham service” in an attempt to avoid the statute. That situation, however, does not describe the circumstances before us. We will not engage in Chase's request to judge whether the February letter, taken in isolation, was a "compen-sable service.” We are satisfied that Baer sent the letter and Chase received it, and thus at least at this time it will serve as the "last service rendered” for purposes of the statute of limitations calculus.
. We do not consider whether Baer was entitled to summary judgment with respect to the timeliness оf his quasi-contract claim. In this regard we point out that Baer did not move for summary judgment in the district court. While it is not unusual for us when reversing a summary judgment for one party to direct that the district court grant summary judgment to the other party, ordinarily, at least, we do this in circumstances in which the parties made cross-motions for summary judgment in the district court.
See, e.g., Nazay v. Miller,
. Baer “introduced” Chase to the City of Elizabeth, The Pulaski Skyway, and Centanni’s Meat Market.
. For example, Baer relayed the following stories to Chase: the RCA and Morris Levy "scam,” which was the subject of a published book; information regarding the DeCaval-cante family and organized crime which existed in public lure of New Jersey; and wire taps that were part of the public record having been played at a criminal trial. We note that Morris Levy, an individual Jones discussed, and who is a prominent figure in the parties’ briefs, is not unknown to this court.
See United States v. Vastola,