ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT COLUMBIA ON COUNTS II AND TV AND DISMISSING COUNT III WITHOUT PREJUDICE
Pending before this Court is Defendant Columbia Sportswear Company’s Motion for Summary Judgment. [DE 127]. 1 Three counts remain in Romika-USA’s Amended Complaint, all of which seek recovery from Columbia [DE 49]: 2 tortious *1336 interference with a business relationship (Count II), breach of contract (Count III) and breach of a third-party beneficiary contract (Count IV). Columbia urges that summary judgment be entered in its favor on all three counts.
After Columbia filed its summary judgment motion, Romika-USA moved for leave to dismiss its breach of contract claim, Count III of the Amended Complaint. [DE 143]. In its motion Romika-USA states that its breach of contract claim is the subject of. litigation in Canada between Romika-Canada and Columbia of Canada, and for this reason Romika-USA does not need to litigate the claim here. Romika-USA filed its motion pursuant to Federal Rule of Civil Procedure 41(a)(2), but did not specify whether it sought dismissal with or without prejudice. At the April 11, 2007 oral argumеnt Romika-USA clarified' that it seeks dismissal without prejudice, and expanded its motion to request voluntary dismissal of Count IV. [DE 151].
For the reasons that follow, this Court grants Columbia’s motion for summary judgment as to Counts II and IV. Further, it grants Romika-USA’s motion to dismiss Count III without prejudice, but conditions any future refiling of that claim on Romi-ka-USA’s first paying Columbia the taxable costs and reasonable attorneys’ fees it incurred in defending this action.
I. The Summary Judgment Motion
The following basic facts are not in dispute.
On August 21, 2003 Columbia and Romi-ka-USA entered into a contract, known as the Supply Agreement, under which Romi-ka-USA agreed to manufacture footwear for Columbia. 3 The Supply Agreement permitted Romika-USA, with Columbia’s prior approval, to engage subcontractors to assist Romika-USA in fulfilling its obligations under the agreement. [DE 135, Ex. 2, ¶ 15.5]. Consistent with the agreement, Romika-USA subcontracted a third party, Romika-Canada, Inc., to manufacture footwear for Columbia in Canada. [DE 49, ¶ 13; DE 132, pp. 18-19].
After troubles arose surrounding the shiрment of shoes manufactured by Romi-ka-Canada and Columbia’s payment for those shoes, representatives of Columbia, Romika-USA and Romika-Canada met in Canada, and at the conclusion of that meeting entered into a one-page contract dated September 17, 2004, known here as the Letter Agreement. 4 [DE 134, pp. 222, 225-26]. The Letter Agreement stated that Romika-Canada would manufacture winter boots ordered by Columbia, ship the boots to Columbia customers, and issue invoices in the name of Columbia, and that Romika-Canada would forward copies of those invoices to Romika-USA, which in turn would forward “the necessary documentation” to Columbia for payment. [DE 49, Ex. A], The Letter Agreement further provided that Columbia would send payment “directly to Romika-Canada in Toronto, Canada..; Per L/C Payment.” [Id. ].
The phrase “per L/C Payment” was handwritten on the Letter Agreement by Brian McCаnn, Columbia’s signatory to that agreement. [DE 134, pp. 235-36]. It reflected the parties’ agreement that payments to Romika-Canada under the Letter Agreement would only be made pursuant to a Canadian letter of credit that Columbia had opened with HSBC Bank, U.S.A., N.A (“HSBC”, or “the bank”). *1337 [DE 49, ¶¶ 11, 30, 42, 51;. DE 134, pp. 231-37; see also DE 130, ¶ 6]. 5 In its letter of credit HSBC pledged to honor Romika-USA’s drafts so long as they were accompanied by the specific documents identified in the letter. 6 The letter of credit addrеssed the possibility of Romika-USA’s presenting documents that did not conform to the requirements of the letter, by reserving to the bank the right to make payments to Romika-USA if the bank received a waiver of the discrepancies from Columbia. [DE 135, Ex. 4], Finally, because the letter of credit was transferable, Romika-USA, as the beneficiary under the letter, could, in connection with its drafts to HSBC, assign to a third party (in this case, Romika-Canada) the right to receive payments under the letter of credit. [DE 130, ¶ 7],
Romika-Canada manufactured, shipped and invoiced boots pursuant to the Letter Agreement, but many of the documents Romika-USA presented to HSBC when seeking payment did not conform to requirements of the letter of credit. [DE 130, ¶ 8, DE 133 pp. 44-45, 50], In those instances the bank forwarded the discrepant documents to Columbia, and Columbia communicated with Romika-USA in an effort to reconcile Romika’s documеnts with Columbia’s records. [DE 130, ¶¶ 13-15; DE 133, pp. 44-45, 50]. In many instances Romika-USA provided supplemental information to Columbia that satisfied Columbia that payment was due, and Columbia notified the bank that it waived the corresponding discrepancies, causing the bank to issue payments to Romika-USA. [DE 130 ¶ 8], In other instances Columbia and Romika-USA were not able to reconcile the conflicting documentation, and Columbia thus did not waive Romika-USA’s obligation to present dоcuments to HSBC that conformed with the letter of credit.
Romika-USA’s'three causes of action all arise from those drafts presented by Ro-mika-USA (for footwear manufactured by Romika-Canada pursuant to the Letter Agreement) to HSBC for which payment was not made. Importantly, both counsel agreed at oral argument that for each instance of non-payment, the documents Romika-USA presented the bank did not conform to the rеquirements of the letter of credit, and Columbia declined to waive those discrepancies.
A. The Summary Judgment Standard
Summary judgment is appropriate, when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc.,
In opposing a proper motion for summary judgment, the non-moving party may not rely solely on the .pleadings, but must show by affidavits, depositions, answers to interrogatories and admissions that specific facts exist demonstrating a genuine issue for trial.
See
Fed.R.Civ.P. 56(c), (e);
see also Celotex Corp. v. Catrett,
B. Count II, Tortious Interference
In Count II Romika-USA claims Columbia tortiously interfered with its business relationship with HSBC by instructing the bank to not honor Romika-USA’s drafts. [DE 49, pp. 4-5]. There are several reasons why Columbia is entitled to summary judgment on Count II.
1. Columbia Is Not a Third Party to the Business Relationship
As an initial matter it is doubtful that Columbia, an indispensable player in the letter-of-credit relationship between HSBC and Romika-USA, can, as a matter of law, be liable to Romika-USA for tortious interference. Under Florida law, a claim for tortious interference cannot lie where the alleged interference is directed at a business relationship to which the defendant is a party. “In other words, the interfering defendant must be a third party, a stranger to the business relationship.”
Ernie Haire Ford, Inc. v. Ford Motor Co.,
While this Court is unaware of any published decision that addresses a сlaim of tortious interference in the letter-of-credit context, a Florida decision often cited for this principle presents analogous facts and strongly suggests that Columbia cannot be liable for tortious interference here. In
Genet Co. v. Annheuser-Busch, Inc.,
Under Florida law, a cause of action for tortious interference does not exist against one who is himself a party to the business relationship allegedly interfered with. Because plaintiffs agree *1339 ment with Lopez was specifically conditioned upon A-B’s approvаl, as a matter of law, A-B cannot be liable for tortious interference with their agreement. A-B had the contractual right, as specified in the Equity Agreement, to approve or disapprove any proposed transfer of Lopez’s wholesalership. Thus, A-B was not a disinterested third party to plaintiff’s agreement. Moreover, what the Genets sought, through their agreement with Lopez, was to obtain an A-B wholesalership and enter into an Equity Agreement with A-B. Thus, A-B was the source of the business opportunity which plaintiffs sought. The tort of willful interference with a business relationship does not exist where the defendant was the source of the business opportunity allegedly interfered toith.
Genet,
2. Columbia Did Not Unjustifiably Interfere
Florida law clearly sets forth four elements for a claim of tortious interference. Romika-USA must prove: (1) the existence of a business relationship between Romika-USA and HSBC; (2) Columbia’s knowledge of that business relationship; (3) that Columbia intentionally and unjustifiably interfered with that business relationship and (4) that Romika-USA suffered damages as a result.
Gregg v. U.S. Indus., Inc.,
To be liable for tortious interference a defendant must have both “the intent to damage the business relationship and a lack of justification for doing so.”
Alphamed Pharmaceuticals Corp. v. Arriva Pharmaceuticals, Inc.,
Florida law also provides that there is no cause of action for tortious interference “when a contract provision expressly reserve[s] the right to interfere.”
McCurdy v. J.C. Collis,
Here, the parties’ agreement that the letter of credit was the only mechanism for payment is undisputed. Columbia was contractually entitled, under the Letter Agreement and the letter of credit, to have HSBC pay Romika-USA on its behalf only when Romika-USA presented the documents required by the letter of credit, or when Columbia, in its sole discretion, chose to waive this requirement. Columbia was entitled by contract to refuse to waive discrepancies in Romika-USA’s documents, 8 and it was certainly acting to protect its own business interests when it did so. Columbia cannot be held liable for tortious interference on these facts.
There is no evidence that Columbia acted improperly when it failed to waive Ro-mika-USA’s discrepant documents. “Improper conduct" has been defined as “the purposeful causing of a breach of contract.”
McCurdy,
There are other reasons why Columbia is entitled to judgment as a matter of law on Count II. To be liable for tortious interference, the offending party’s interference must be “both direct and intentional.”
Merrill Lynch Bus. Fin. Servs., Inc. v. Performance Machine Sys. U.S.A., Inc.,
No. 04-60861-CIVMARTINEZ,
The complaint failed to allege direct interference by the [hospital] with the doctor/patient, doctor/doctor relationships. Clearly, the alleged interference with these relationships was only an indirect consequence of the termination of Dr. Lawler’s staff privileges;
*1341
Finally, this Court notes that Romika-USA has put forth no evidence that Columbia’s refusal to waive certain discrepant documents was done out of malice. Florida law is clear that the qualified privilege to interfere “is not negated by concomitant evidence of mаlice. It is only when malice is the
sole
basis for interference that it will be actionable.”
McCurdy,
For each of these reasons, this Court grants summary judgment for Columbia on Count III.
C. Count IV, Breach of Third-Party Beneficiary Contract
Romika-USA sues Columbia in Count IV for breach of the Letter Agreement, as a third-party beneficiary to that contract. In fact, Romika-USA was a party to the Letter Agreement, and it acknowledged as much in its Amended Complaint. [DE 49, ¶¶ 51, 53]. Florida law draws a distinction between parties to contracts and third-party beneficiaries; thе two are mutually exclusive. Another division of this Court recently reviewed this aspect of Florida law:
The reported cases discussing third party beneficiary status uniformly draw a distinction between “parties to a contract” and “third party beneficiaries.” See, e.g., Weimar v. Yacht Club Point Estates, Inc.,223 So.2d 100 , 102 (Fla. 4th DCA 1969) (“Florida has long recognized the propriety of a third party beneficiary who is not a party to a contract suing for damages as a result of the acts of one of the parties to the contract”); Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd.,647 So.2d 1028 , 1030-31 (Fla. 4th DCA 1994) (“[The exception to the rule that only a party to a contract may sue another party to the contract for . breach] is where the entity that is not a party to the contract is an intended third party beneficiary ... ”). Even a case upon which [the cross-plaintiff] relies in its briefs reflects the distinction between a third party beneficiary and a *1342 party to the contract. See Jenne v. Church & Tower, Inc.,814 So.2d 522 , 524 (stating that the test to determine whether a third person is a third party beneficiary is whether “the parties to the contract intended that [the] third person [benefit from the contract]”).... The Eighth Edition of Black’s Law Dictionary defines a “third party beneficiary” as “a person who, though not a party to a contract”, stands to benefit from the contract’s performance.
In short, a third party beneficiary is not a party to a contract.
CC-Aventura, Inc. v. Weitz Co., LLC,
No. 06-21598 CIV,
Here, the Letter Agreement plainly shows that Romika-USA, like Columbia and Romika-Canada, was a party and signatory to that agreement. [DE 49, Ex. A], Romika-USA can sue for breach of that contract, as it did in Count III of its Amended Complaint, but it cannot seek to recover on that contract as a third-party beneficiary. Accordingly, this Court grants summary judgment for Columbia on Count IV.
II. The Motion to Dismiss Count III
Romika-USA filed this action more than two years ago, and in the intervening years has caused a series of unreasonable delays in the prosecution of this lawsuit. [See e.g., DE 68, 74, 83, 102, 106, 116, 137]. A consequence of one such delay, Romika-USA’s failure to timely give Columbia its expert disclosures, was this Court’s order striking Romika-USA’s expert witness. [DE 106]. Five weeks before trial, 10 with discovery closed and Columbia’s summаry judgment motion pending, Romika-USA sought leave to dismiss Count III of its Amended Complaint. [DE 143]. At the April 11, 2007 oral argument, Romika-USA clarified that it seeks that dismissal without prejudice. [DE 151]. Columbia opposes dismissal unless it is with prejudice. [DE 144],
It is clear that Romika-USA “enjoys no right to a voluntary dismissal without prejudice.”
Mosley v. JLG Indus., Inc.,
[t]he district court enjoys broad discretion in determining whether to allow a voluntary dismissal under Rule 41(a)(2). In most cases, a voluntary dismissal should be granted unless the defendant will suffer clear legal prejudice, other than the mere prospect of a subsequent lawsuit, as a result. The crucial question to be determined is, [w]ould the defendant lose any substantial right by the dismissal. In exercising its broad equitable discretion under Rule 41(a)(2), the district court must weigh the relevant equities and do justice between the parties in each case, imposing such costs and attaching such conditions to the dismissal as are deemed appropriate.
Pontenberg v. Boston Scientific Corp.,
*1343
Given the eleventh-hour timing of Ro-mika-USA’s motion, Romika-USA’s culpability for unnecessarily prolonging this litigation, and the substantial legal fees Columbia has had to incur in defending this lawsuit, the only way to grant Romi-ka-USA’s motion and still “do justice between the partiеs” is to condition dismissal upon Romika-USA’s payment of Columbia’s taxable costs and reasonable attorneys’ fees incurred in defending this action should Romika-USA later re-file this breach of contract claim. These conditions would substantially protect Columbia from the unfairness of duplicative litigation, and have been recognized as reasonable by this circuit and other district courts in this circuit.
See Roberts Enters., Inc. v. Olympia Sales, Inc.,
III. Conclusion
For the foregoing reasons, this Court
ORDERS and ADJUDGES that:
1. Defendant Columbia Sportswear Company’s Motion for Summary Judgment [DE 127] is granted as to Count II (tortious interference) and Count IV (breach of contract, third-party beneficiary), and
2. Romika-USA’s Motion for Leave of Court to Voluntarily Dismiss Count III of Plaintiffs Amended Complaint [DE 143] is granted as to Count III. Count III is dismissed without prejudice on the condition that, should Romika-USA re-file the breach of contract claim against Columbia, Romika-USA must first reimburse Columbia for all taxable costs and reasonable attorneys’ fees Columbia has incurred in defending this lawsuit.
Final judgment will be entered by a separate contemporaneous order.
DONE and ORDERED.
Notes
. After the motion was -fully briefed, oral argument was held on April 11, 2007.
. This Court previously allowed Romika-USA to dismiss with prejudice Count I, its only claim filed against Defendant HSBC Bank. [DE 70],
. The Supply Agreement is Exhibit 2 to the Deposition of Deepak Deshponde, Romika-USA’s former President and CEO. [DE 135, Ex. 2],
. The Letter Agreement is attached as Exhibit A to the Amended Complaint. [DE 49].
. The letter оf credit referred to in the Letter Agreement is Exhibit 4 to the deposition of Deepak Deshponde. [DE 135, Ex. 4].
. Some of the documents required by the letter of credit were signed invoices referring to particular purchase order numbers, copies of trucking, ocean or air bills of lading, copies of packing lists, and original certificates of inspection signed by Columbia. [DE 135, Ex. 4; see also DE 49, ¶ 14],
. This right to protect one’s business interests is sometimes referred to аs a “privilege” to interfere.
See, e.g., Ernie Haire Ford, Inc.,
. This arrangement is common to letters of credit. As one court observed, “[w]hile discrepant drafts are routinely honored, neither [the bank nor the customer] was required to accept nonconforming drafts.”
DeSmeth v. Bank of New York,
. In an affidavit Romika-USA filed in opposition to summary judgment, Deepak Desh-ponde described Columbia’s offending conduct in this way: "There are two ways that one can delay payments. One is complete silence and non-acceptance of the waivers; or two is specific communication. And in this case, ... while there may not have been anything in writing asking HSB [sic] to delay payments, there was definitely a delay caused by non-acceptance and non-communication from Columbia to HSBC. While Columbia never said they won’t pay, ... they continue to accept and never pay.” [DE 140, ¶ 18].
. In August, 2006, this Court specially set this case for trial on May 7, 2007. [DE 87].