390 F. App'x 55

2d Cir.

2010

SAMBA ENTERPRISES, LTD., Plaintiff-Appellee, v. IMESH, INC., Defendant-Counter-Claimant-Counter-Defendant-Appellant.

No. 09-4243

United States Court of Appeals, Second Circuit

Aug. 26, 2010

have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

Jeffrey A. Kimmel, (Thomas L. Friedman and Howard Davis, of counsel), Meister, Seelig & Fein, LLP, New York, NY, for Defendant-Appellant.

Jason Advocate, Advocate & Lichtenstein, LLP, New York, NY, for Plaintiff-Appellee.

PRESENT: RALPH K. WINTER, JOSÉ A. CABRANES and CHESTER J. STRAUB, Circuit Judges.

SUMMARY ORDER

Defendant-Appellant iMesh, Inc. (“iMesh“) appeals from a May 12, 2009 Order and October 6, 2009 final judgment of the District Court awarding damages to Plaintiff-Appellee Samba Enterprises, Ltd. (“Samba“). The action involves a March 2006 agreement between Samba, a software consulting firm, and iMesh, an online media distribution company. We assume the parties’ familiarity with the facts and procedural history of this case.

iMesh appeals a series of findings by the District Court which held, as a matter of law, that (1) the agreement between Samba and iMesh was a divisible contract; (2) the “faithless servant” doctrine did not preclude Samba from entitlement to any commissions from its agreement with iMesh; (3) Samba was entitled to a commission from iMesh‘s agreement with IAC Search & Media, Inc. (“Ask“); (4) the amount of the commission due should be based on the standard commission rate of the 2006 agreement even if that agreement was divisible; and (5) the commission rate should equal 1.5% of the total revenue earned by iMesh under its agreement with Ask.

We review an order granting summary judgment de novo, drawing all factual inferences in favor of the non-moving party. See, e.g., Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009). Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c). A court faced with cross-motions for summary judgment “need not enter judgment for either party. Rather, each party‘s motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.” Morales v. Quintel Entm‘t, Inc., 249 F.3d 115, 121 (2d Cir.2001) (internal citation omitted).

In its well-reasoned opinion of March 19, 2009, Samba Enterprises, LLC v. iMesh Inc., No. 06-CIV-7660, 2009 WL 705537 (S.D.N.Y. Mar. 19, 2009), and its order of May 12, 2009, Samba Enterprises, Ltd. v. iMesh, Inc., No. 06-CIV-7660 (S.D.N.Y. May 12, 2009), the District Court applied New York contract law in a careful reading of the agreement between iMesh and Samba. For substantially the reasons stated by the District Court, we affirm judgment disposing of all claims.

CONCLUSION

The judgment of the District Court as to all claims and counterclaims is AFFIRMED.