2P Commercial Agency v. Familant

2P Commercial Agency S.R.O. (2P) (plaintiff) was a global wholesale trader of mobile telephones. 2P was based in the Czech Republic. Len Familant (defendant) told a 2P representative that Familant was involved in Apple’s distribution system and could obtain Apple iPhones with European specifications at below-market prices through SRT USA, Inc. (SRT) (defendant). A purchase order dated July 13, 2011, was prepared, specifying SRT as the supplier and calling for July 19 delivery of the phones in Prague. Familant and 2P’s representative signed the purchase order. On July 13, a purchase invoice on SRT’s letterhead for $55,360 was provided to 2P. 2P tried to pay that amount on July 14, but the payment did not go through because the purchase invoice’s banking information was incorrect. 2P successfully made payment on July 19. Familant provided a $300,000 personal guarantee in connection with 2P’s payment. When the phones were not delivered on July 19, 2P agreed to several specific alternative delivery dates, but 2P never received any phones. SRT refunded only $5,000 to 2P, and Familant refused to honor his personal guarantee. 2P sued Familant and SRT in Florida federal court, alleging violations of the Convention on Contracts for the International Sale of Goods (CISG) and the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), as well as breach of Familant’s personal guarantee. The court entered a default judgment against SRT. Familant moved for summary judgment on the grounds that the CISG was inapplicable because (1) he was neither a buyer nor seller but served only as SRT’s agent, (2) the contract was unenforceable under CISG Article 19 because 2P did not pay for the phones until the intended delivery date and 2P never fixed a specific alternate delivery date, and (3) 2P did not strictly comply with CISG Article 47 regarding breach remedies because 2P did not fix a specific new delivery date. Familant further argued that the FDUTPA was inapplicable because 2P improperly converted a breach-of-contract claim into an FDUTPA claim even though there was no evidence that Familant made deceptive statements to 2P. Finally, Familant argued that his personal guarantee was invalid because it was not supported by consideration, was fraudulently induced, and was ambiguous and indefinite.