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BUSINESS EQUIP. CTR., LTD. v. DEJUR-AMSCO CORP.

UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA


February 21, 1978

BUSINESS EQUIPMENT CENTER, LIMITED, Plaintiff,
v.
DeJUR-AMSCO CORPORATION, Defendant and Counterclaimant, v. Sidney W. ROSEN et al., Counterclaim Defendants

The opinion of the court was delivered by: GASCH

MEMORANDUM

After numerous peripheral skirmishes that have taken their toll, both on the parties and the Court, defendant now attempts with this motion for summary judgment to take the offensive in an effort to inflict a fatal blow on plaintiff's case. Rather than counterattack, plaintiff has dug in, hoping that the blows will miss their mark, that the assault will fail, and that conditions for victory will be more advantageous at a later date. The facts and events leading to this battle as well as the blow-by-blow description of it are recited below.

 BACKGROUND

 Defendant DeJur-Amsco Corp. (DeJur) was an importer of dictation equipment, *fn1" and plaintiff Business Equipment Center, Ltd. (BEC), up to the time of this lawsuit, was the sole independent distributor of DeJur's equipment in the District of Columbia metropolitan area. This relationship was confirmed by contract until around 1974. BEC acknowledges, however, that no formal contract has existed since then. *fn2" In 1971 BEC also became the franchised dealer of Sony, whose dictating equipment is competitive with that of DeJur's. BEC alleges that its status as a DeJur dealer was to continue so long as it adequately and reasonably served DeJur's interests in the D.C. area. For purposes of this motion, DeJur does not dispute that.

 Based on the affidavit of Mr. Steven Monk, DeJur's Vice President for Administration, and also on data from DeJur's business records attached as exhibits to that affidavit, it appears the BEC's purchases of DeJur machines, parts, and accessories declined steadily from $ 206,800 in 1969 to $ 8,275 during the first ten months of 1976. Considering new machine purchases only, the figures are $ 185,000 in 1969 and nothing in 1976. BEC's performance as a DeJur dealer not only declined in this absolute sense, but other information from the Monk affidavit also reveals a decline in DeJur's performance relative to the performance of all other DeJur dealers. *fn3" BEC was fourth in sales in 1971, sixth in 1972 and 1973, twelfth in 1974, thirteenth in 1975, and at the bottom in 1976. *fn4"

 Early in BEC's and DeJur's relationship, it was agreed that because of BEC's strategic position as the DeJur dealer in the District of Columbia area, it would get commissions on all sales to the federal government wherever made and whether or not made by BEC. In 1974 about 70 percent of these commissions were from BEC's own sales to the Government, but in 1975 virtually all the commissions came from sales by other dealers. *fn5"

 DeJur contends that the reason for this decline in BEC's performance was the latter's decision to focus its efforts on sales of Sony equipment and further that as a result of this decision, BEC intentionally switched its DeJur customers to the Sony line. DeJur's evidence for this contention comes from various sources.

 First, DeJur relies on the deposition of Mr. William Broderick, National Sales Manager of the Business Products Division of Sony from February, 1972, to February, 1975. He testified at his deposition that BEC was the top Sony dealer in the United States by almost $ 75,000 in sales during the year November, 1973, to October, 1974. He further stated that BEC consistently was one of the top three Sony dealers during his term as Sony National Sales Manager and that probably they were number one each of those years. *fn6" DeJur argues that the obvious inference to be drawn from BEC's rise to the top as a Sony dealer coincidental with its fall to the bottom as a DeJur dealer is that BEC's customers were intentionally switched from DeJur to Sony equipment.

 Two additional evidentiary items have been offered by DeJur to support that inference. The first is the testimony of Ms. Susan Ramsey, office manager of a District of Columbia law firm, that in September, 1976, BEC attempted to switch her firm from its DeJur equipment even though they were satisfied with it. *fn7" The second is a copy of a letter written in 1972 by Mr. Sidney Rosen, President and principal stockholder of BEC, and sent to the University of Maryland. *fn8" In that letter, Mr. Rosen referred to the universal cassette, an item of dictating equipment sold by Sony but not by DeJur, and then he wrote:

 

From my end, I took my gamble in putting all my chips in that direction by investing in the future of Sony's equipment.

 Letter from Sidney W. Rosen to Mr. Friedman of the University of Maryland at Baltimore (Mar. 1, 1972).

 In March and in April of 1976 two DeJur representatives met with Mr. Rosen and told him that DeJur no longer wished to do business with BEC. BEC alleges that thereafter DeJur refused to deal with it, but DeJur's evidence shows sales to BEC of over $ 8,000 in parts and accessories though no sales of new machines were made. *fn9" Mr. Rosen acknowledged these sales in his deposition. *fn10"

 Prior to these meetings with Rosen in the spring of 1976, DeJur hired Mr. Roy Witte and Mr. Phillip Vertin to work on improving its sales picture. At some point during this time frame, precisely when being unclear, DeJur also established at least two other dealers in the District of Columbia area, Rockville Office Machines and Washington Office Products. BEC believes a conspiracy exists among DeJur, these two new employees, and the two new dealers to undermine BEC's government sales and its business generally and then to take it over. Accordingly, BEC filed this suit in September, 1976. In November, 1976, DeJur by letter formally terminated BEC as a franchised or authorized dealer of DeJur products. *fn11"

 BEC's complaint alleges that DeJur: breached their agreement by terminating BEC's dealership without cause or notice; conspired in violation of the antitrust laws; made fraudulent misrepresentations to BEC; and interfered with BEC's business relations and engaged in unfair competition. DeJur has counterclaimed, but it is not now before the Court as DeJur's motion only asks for summary judgment with respect to BEC's complaint.

 MERITS

 This case is of course governed by the standard of Rule 56, which states that summary judgment shall be granted only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The case law is replete with a litany of standards to be applied to summary judgment decisions, *fn12" but they provide little additional guidance beyond that in the rule itself because the facts of the particular case are more controlling than these judicial paraphrases of the rule. It is the litany of these general principles, however, upon which BEC's opposition to this motion generally rests. The nature of this opposition requires that it be addressed before considering the facts that are not disputed and their bearing on the legal issues governing the merits of this case.

 BEC's opposition basically proceeds along two fronts. First, it argues that summary judgment is inappropriate in antitrust cases generally and specifically in this case because of the disputed facts it alleges it has raised. Secondly, it argues that summary judgment is inappropriate at this juncture because BEC has yet to complete its discovery in the case.

 In support of this opposition, BEC has filed one of the most unusual documents this Court has ever seen in civil litigation. It is entitled Supplement To Opposition To Motion For Summary Judgment Consisting Of Affidavit Of Sidney Rosen In Support Of Opposition And Further Constituting Statement Of Issues With Regard To Which There Is A Genuine Issue Of Material Fact And A Statement Of Such Facts. The principal item, as the title suggests, is the affidavit of Mr. Rosen, BEC's President and principal owner.

 The Rosen affidavit begins with the standard statement that it is "based on personal knowledge." Immediately thereafter, however, he qualifies that claim by stating that some of the content is based on information and belief. As to these facts stated on information and belief, he attempts to improve their reliability by asserting that they are "true according to such information available to him as of the present time."

 After these qualifications, the affidavit continues for thirty-six pages, one paragraph of which runs unbroken for over six of those pages. These pages are filled with allegations, claims, assertions, denials, averments, charges of falsehoods and inaccurate data by DeJur, personal attacks upon DeJur's affiants and deponents, and references to the existence of evidence outside the affidavit and record of this case which Mr. Rosen claims will support BEC's case when it goes to trial. At one point Mr. Rosen's affidavit quotes fourteen pages of excerpted portions of the deposition of Mr. W. Bruce Hansen, DeJur's President. Mr. Rosen then asserts that inferences adverse to DeJur are "obvious" from these excerpts and denies Hansen's credibility as to the remaining portions of his deposition. A similar reference to an "obvious" adverse inference is made to an attached document of DeJur's showing its sales to DeJur dealers. *fn13" The last pages of the affidavit are almost like an answer to a complaint, quoting a paragraph from DeJur's statement of undisputed facts and then denying the statement or admitting it with qualifications. In sum, it becomes exceedingly difficult to find straightforward statements of hard facts that can be separated from the rest of the affidavit's content and that can then be compared to DeJur's statement of undisputed facts. *fn14"

 After the conclusion of the affidavit, BEC cites nine cases for the proposition that summary judgment is inappropriate when the record is inadequate. *fn15" Of course, that is the law, and in those cases the records clearly revealed material issues of fact to be in dispute. The question is: In which category does the record of this case fall?

  Principal reliance from those nine cases is placed upon the Supreme Court's statement in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962), that:

 

Summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles the proof is largely in the hands of the alleged conspirator.

 Id. at 472-73, 82 S. Ct. at 491. That is not the Supreme Court's latest pronouncement on this issue, however. In First National Bank v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968), the Court affirmed a lower court's entry of summary judgment for a defendant in an antitrust case. It distinguished Poller by noting that in it there had been substantial evidence tending to show the existence of a conspiracy to eliminate a competitor, thereby creating a genuine factual issue material to that case. Id. at 285, 88 S. Ct. 1575. The Court then went on to say that Rule 56(e) makes it clear

 

that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him.

 Id. at 289, 88 S. Ct. at 1592. The plaintiff therein had argued that the effect of this rule was to shift the burden of proof to him. To this the Court responded:

 

To the extent that petitioner's burden-of-proof argument can be interpreted to suggest that Rule 56(e) should, in effect, be read out of antitrust cases and permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations, we decline to accept it. While we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.

 Id. at 289-90, 88 S. Ct. at 1593. The Court of Appeals for this circuit has applied this principle in a recent antitrust case affirming award of summary judgment for the defendant. Merit Motors, Inc. v. Chrysler Corp., 187 U.S.App.D.C. 11, 569 F.2d 666 (1977). This Court also recently has applied the principle. National Tire Wholesale, Inc. v. Washington Post Co., 441 F. Supp. 81, 84 (D.D.C.1977), Aff'd mem, (D.C.Civ. Apr. 6, 1979), 595 F.2d 888.

 Thus, in antitrust actions, as in any others, an opponent to summary judgment must comply with Rule 56. He may not rest on the allegations of his pleading, but

 

must set forth Specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

 Fed.R.Civ.P. 56(e) (emphasis added). It does not appear to this Court that BEC has put in dispute the essential facts set forth by DeJur and discussed below on their legal sufficiency for DeJur's motion. BEC has not done so by referring to proposed evidence outside of the record; *fn16" it has not done so in standing by the allegations of its complaint; *fn17" and it has not done so with its denials unaccompanied by facts that would be admissible in evidence to show the genuine factual dispute. *fn18"

 BEC's second argument for not granting DeJur's motion for summary judgment rests on its intent to conduct further discovery. Rule 56(f) provides that the Court may refuse the motion for summary judgment or order a continuance when there is a need for further discovery.

  Merely asserting the need, however, is insufficient. A further need for discovery was also raised by the losing plaintiff in First National Bank, supra. Plaintiff therein contended "vigorously that the discovery he ha(d) obtained ha(d) been too limited to enable him adequately to resist the motion for summary judgment." 391 U.S. at 294, 88 S. Ct. at 1595. The Court dismissed that argument, however, finding that it had had "sufficient discovery to substantiate his claims of conspiracy to the extent of raising a material issue of fact thereon . . . ." Id. at 298, 88 S. Ct. at 1597.

 In this circuit, too, the court has rejected a claimed need for additional discovery as a basis for denying summary judgment when the opponent already had had an ample opportunity. In Merit Motors, Inc. v. Chrysler Corp., supra, the court noted the long period the party had had for discovery and then stated that it was unwilling "to send this case to trial on the mere promise that a more substantial showing will be made there." 187 U.S.App.D.C. at 18, 569 F.2d at 673. Although not an antitrust case, perhaps the most pertinent statement on this issue from this circuit came in Chung Wing Ping v. Kennedy, 111 U.S. App. D.C. 106, 294 F.2d 735 (D.C.Cir.), Cert. denied, 368 U.S. 938, 82 S. Ct. 380, 7 L. Ed. 2d 337 (1961), when the court stated:

 

At the hearing on the motion for summary judgment and on appellants' motion for a continuance, appellants stated that they were unable even to argue effectively the motion for summary judgment without the information they sought to obtain by discovery. It is beyond dispute that a motion for continuance is addressed to the sound discretion of the court. We note that appellants did nothing to obtain discovery until some ten months after filing their complaint, when the merits of their case was called into question by the summary judgment procedure. Diligent prosecution of a cause of action which is dependent for success upon discovery demands that the plaintiff seek discovery in preparation of his case and not as a back-door defense to a test of the merits of his claim.

 Id. at 737.

 BEC likewise has had an ample opportunity to gather evidence to support its claims and raise a genuine, material dispute of fact. First of all, it has mentioned the availability of evidence outside the record, and some of its denials of DeJur's facts, if valid, would be supportable by data from its own records. The purpose of invoking the summary judgment procedure is to "smoke out" those facts. *fn19" Having failed to come forward with those facts so that they may be tested, BEC must assume the risk of whether DeJur's facts are sufficient to support its legal argument.

 Secondly, BEC has not pursued production of documents from DeJur. After its initial request was served on DeJur, DeJur moved for a protective order on the ground that some of the documents contained competitive information. On September 21, 1977, this Court broke that deadlock by ordering BEC to use the information gained from DeJur's records only for litigation purposes. Since that date, BEC apparently has made no effort to inspect those documents although they have been available for over four months. *fn20" BEC served another document request on DeJur shortly after this first one. That, too, became a subject of dispute between the parties, and on September 20, 1977, this Court granted DeJur a protective order against this second set on the ground that it was not served for a bona fide discovery purpose. BEC expressly was given leave, however, to submit a proper request for discovery on DeJur. *fn21" It took no action on this, however, until January 13, 1978. Again, that was nearly four months later, over five weeks after the summary judgment motion had been filed, and approximately one week after the hearing had been scheduled.

 Thirdly, BEC has taken the depositions of three DeJur officials and although it now argues that it needs to take several other depositions, it has failed over the past several months to do anything in that regard. Not having participated in the DeJur deposition of Mr. Broderick, BEC argued at the December 19, 1977, status hearing on this case that it needed to examine him before any hearing on the summary judgment motion. It failed, however, to take advantage of three alternative dates when Mr. Broderick would have been available for deposition. *fn22" Moreover, since mid-1977 no notice of deposition of any other potential witness has been served on DeJur. *fn23"

 This performance brings BEC appropriately within the references made by the Court of Appeals in Chung Wing Ping and Merit Motors : That is, BEC cannot claim a need for discovery as a back-door defense to DeJur's summary judgment motion, nor can it defeat that motion simply with a promise that it will make a more substantial showing when the trial is held. It has had an adequate opportunity to develop its case.

 Having concluded that the grounds for BEC's argument that summary judgment is inappropriate in this case are themselves inappropriate, that does not necessarily mean that DeJur is entitled to entry of judgment in its behalf. The undisputed facts must first be considered in light of the legal principles governing the merits of the case.

 Plaintiff's principal cause of action appears to be based upon alleged violations of the federal antitrust laws. The first of these is section one of the Sherman Act, which provides:

 

Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.

 15 U.S.C. § 1 (Supp. V 1975).

 The Supreme Court in United States v. Colgate & Co., 250 U.S. 300, 39 S. Ct. 465, 63 L. Ed. 992 (1919), addressed the purpose of the Sherman Act and the relationship of that purpose to a retailer's interaction with its dealers. Therein the Court stated:

 

The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce in a word to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.

  Id. at 307, 39 S. Ct. at 468. More recently in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S. Ct. 1856, 18 L. Ed. 2d 1249 (1967), the Court again discussed section one of the Sherman Act and in doing so, described the extremes of restrictive business practices. After noting examples that constituted per se violations, the Court continued:

 

At the other extreme, a manufacturer of a product other and equivalent brands of which are readily available in the market may select his customers, and for this purpose he may "franchise" certain dealers to whom, alone, he will sell his goods. If the restraint stops at that point if nothing more is involved than vertical "confinement" of the manufacturer's own sales of the merchandise to selected dealers, and if competitive products are readily available to others, the restriction, on these facts alone, would not violate the Sherman Act.

 Id. at 376, 87 S. Ct. at 1864 (citing United States v. Colgate & Co., supra ) (dictum). Thus, unilateral action by DeJur in terminating BEC as its District of Columbia dealer and in selecting new dealers was not a violation of section one. *fn24" There must have existed some kind of combination or conspiracy whose actions caused the termination, but BEC has submitted no facts to suggest one; it only alleges that concerted action occurred. Merely because DeJur established new dealers, however, does not alone permit the inference that they conspired against BEC. The very nature of the act required them to engage in negotiations. *fn25" Moreover, the presence here of a valid business reason for the termination reinforces the conclusion that there is no section one violation, even if the effect of the termination resulted in serious damage to BEC's business. *fn26"

 BEC's declining sales performance certainly is a legitimate business reason for DeJur to have terminated its dealership with BEC. BEC has submitted no facts to contradict this sales data. Rather, it declares that the accuracy of the data cannot be conceded, and alleges that the reasons for the declining performance were poor management by DeJur, DeJur's failure to remain competitive, and DeJur's coercion of dealers to build their inventories unnecessarily high in earlier years. The only support for this is Mr. Hansen's acknowledgement that DeJur had fallen from a major distributor of dictating equipment to a minor distributor, and his belief that part of the reason was the failure of its supplier to keep pace with new product introductions that were occurring and also increased efforts by DeJur's competitors. Although this is supportive of the allegations, it does not mean that poor sales performance by DeJur dealers was not also a contributing factor to the decline. Moreover, even assuming those allegations to be true, they would only be excuses for the absolute decline in BEC's sales and would not explain the contemporaneous decline in BEC's standing relative to all other DeJur dealers.

 BEC further argues that this declining sales performance, even if its own fault, was just a pretext for termination. It contends that the actual reason was that DeJur did not want BEC also to sell Sony products and that when it continued to do so, it was terminated. Again, BEC has put into the record virtually no facts to support that argument except for Mr. Rosen's statement that it is true. *fn27" But again, even assuming that this was an additional reason for DeJur's action, that does not make it illegal. *fn28"

 Finally, the Sherman Act prohibits only unreasonable restraints of trade. *fn29" Having concluded, however, that the action taken here was unilateral and not the result of a conspiracy, it is not necessary to address this element. *fn30"

 Another alleged antitrust violation raised by BEC involves section three of the Clayton Act, which provides:

 

It shall be unlawful for any person engaged in commerce . . . to lease or make a sale or contract for the sale of goods . . . on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods . . . of a competitor . . . where the effect . . . may be to substantially lessen competition or tend to create a monopoly in any line of commerce.

 15 U.S.C. § 14 (1970). BEC has not articulated its theory under this provision, but has only listed its statutory citation.

 Much of the discussion above concerning section one of the Sherman Act is equally applicable to this Clayton Act provision. More specifically, this section is worded in terms of leases, sales, or contracts. Therefore, a termination of a dealership and a further refusal to deal by themselves are not prohibited. To be a violation, there must have been an agreement between the parties that prevented BEC from selling any Sony products, *fn31" and no such agreement has been shown.

  It is clear from the preceding discussion, the legal precedents cited, and the undisputed facts of BEC's declining performance in the sale of DeJur products that DeJur is entitled to summary judgment on BEC's claims founded on the federal antitrust laws. *fn32"

 Another major cause of action advanced by BEC is breach of agreement. BEC admits that no formal written contract between it and DeJur existed at the time of the termination, but it contends that there are sufficient writings to reflect that agreement. Yet, it has not placed these writings in the record or even described their terms. *fn33" BEC has alleged, however, that its dealership of DeJur products was to continue "for so long as (BEC) adequately and reasonably served and serviced" the Washington, D.C. metropolitan area. Complaint P 7, at 7. Therefore, assuming the existence of a binding agreement and further assuming that inadequate performance was the only reason DeJur could terminate the agreement, that reason existed at the time of this termination. When a dealer's sales decline as dramatically as did BEC's, performance unquestionably has become inadequate. Accordingly, DeJur also is entitled to summary judgment on BEC's claim of breach of agreement.

 BEC's next cause of action is for false representations, although it is not altogether clear what BEC believes those false representations to have been. It appears that one might have concerned Mr. Witte's employment status with DeJur. BEC states that it was told

 

Mr. Witte was only being considered for a position with (DeJur) when he had in fact long since been actually hired to take over the said government sales as part of said scheme.

 Complaint P 8. Perhaps another allegedly false representation involved the reason for the termination: DeJur stating it to be principally BEC's poor sales performance and BEC contending that to be merely pretextual, the real reason being its sales of Sony products.

 The necessary elements in a cause of action for false representations are that

 

the representation of a material fact was made; that such representation was false and known to be false by the party making it, and was made with intent to deceive; and that the party to whom it was made had a right to rely upon it and did rely upon it to his injury or damage.

 37 Am.Jur.2d Fraud and Deceit § 42, at 66 (1968).

 Applying those elements to the facts of this case reveals the inadequacy of this cause also. First of all, there is no indication that the pertinent facts are material. Materiality is present when the fact

 

influences a person to enter into a contract, when it deceives him and induces him to act, or when without it the contract would not have been entered into or the transaction not have occurred.

 Id. § 178, at 238. If these were false representations, it does not appear that they induced BEC to take any action it otherwise would not have taken or that they discouraged it from acting when it otherwise would have acted. Secondly, there is no indication of what right BEC had to rely on these representations, or more particularly how it did rely on them. Finally, there is no indication as to how these allegedly false representations damaged BEC. *fn34" In fact, any damages BEC may have incurred were from the termination itself and not from any representations that preceded the termination. Once more then, the facts weighed against the appropriate legal standard demonstrate that DeJur is entitled to summary judgment on this cause of action.

 BEC's final cause of action is for interference with business relations and for unfair competition. Again, there have been no specific allegations or facts by BEC as to how this cause arises, only the general statement of the claim.

 Interference with business relations is a tort that can arise in two situations. The first is interference with contractual relations. It only arises, however, if there is interference with a contract between the plaintiff and some third party. *fn35" No such situation is suggested on the facts of this case. Even assuming it was, if the interference is caused by the defendant's breach of his own contract with plaintiff, as BEC's allegations suggest is the case here, that is no basis for this cause of action. *fn36" The second kind of interference is with a plaintiff's prospective business advantage. In that situation, however, there is the privilege of competition. Therefore, the cause of action becomes virtually the same as that for unfair competition. *fn37"

 Unfair competition is not defined in terms of specific elements, but instead by the description of various acts that would constitute the tort if they resulted in damage. A refusal to deal is not one of these acts. *fn38" They do include, however, defamation of the plaintiff or disparagement of its goods or business methods, *fn39" both of which have been generally alleged by BEC. No specific instances of defamation or disparagement have been cited by BEC, although surely it must have had at least some knowledge of such acts before it filed this suit. Moreover, here, too, damages are a necessary element of the cause of action, and there is no suggestion by BEC that it has suffered any harm beyond that allegedly resulting from the termination. That is insufficient, and so DeJur will prevail on this cause as well.

 CONCLUSION

 As with any battle, the passions and bitterness generated in this case have been strongly voiced. But now that the battle has been fought and the smoke has settled, it is clear that DeJur leaves the battlefield the victor. As is properly the result in any lawsuit, the side that has prevailed is the one that armed its weapons with facts and not with words, a point more eloquently made by John Adams during his defense of the British soldiers on trial for the Boston Massacre when he remarked:

 

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.

  J. Bartlett, Bartlett's Familiar Quotations 462b (14th ed. 1968). Accordingly, summary judgment will be entered for DeJur on BEC's complaint. Because of this disposition, the Court will deny DeJur's recent motion to open the record for consideration of documents it has obtained from counterclaim defendant Business Equipment Center of Baltimore.


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