Full opinion text
ORDER ADOPTING, IN PART, MAGISTRATE’S REPORT AND RECOMMENDATION, GRANTING, IN PART, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING, IN PART, DEFENDANT’S MOTION TO DISMISS MORENO, District Judge. THE MATTER was referred to the Honorable Andrea M. Simonton, United States Magistrate Judge for a Report and Recommendation on Defendant’s Motion to Dismiss (D.E. No. 58, 59) and Defendant’s Motion for Summary Judgment (D.E. No. 101). The Magistrate Judge filed a Report and Recommendation (D.E. No. 228) on January 22, 2007. The Court has reviewed the entire file and record. The Court has made a de novo review of the issues that the objections to the Magistrate Judge’s Report and Recommendation present. I. Background A. The Amended Complaint To summarize briefly, Plaintiff Topp, Inc., (“Topp”) is proceeding under a three-count Amended Complaint (DE # 41). In Count I of the Amended Complaint, Topp contends that Uniden America breached exclusive distribution agreements for the sales of new products in Latin America and used products in the United States, Canada and Latin America. In Count II, Topp alleges that Uniden America tortiously interfered with Topp’s advantageous business relationships with Lectron Radio Sales, Ltd. (Lectron), and Costco Wholesale Corporation in Mexico (Costco Mexico). The tortious interference claim as it relates to Lectron is not at issue in either the Motion to Dismiss or the Motion for Summary Judgment. In Count III, Topp contends that over the course of Uniden America’s business relationship since 1996, Uniden America continuously falsely represented to Topp that it was supplying Topp with all of the B-products it obtained in that time period, and that at the time Uniden America made those statements, Uniden America knew that the statements were false because it was skimming the best B-products off for its own benefit on resale, leaving to Topp the B-products of lesser value. B. Magistrate Judge Simonton’s Recommendations Magistrate Judge Simonton, in a thoughtful and well-reasoned Report and Recommendation (“R & R”), applying Florida law, recommended that the Court grant Defendant’s Motion for Summary Judgment as to all three Counts. She recommended that summary judgment be granted as to Count I because the alleged oral exclusive distributorship agreements are unenforceable under the Statute of Frauds. She also found that a breach of the September 12, 2003 written B-stock agreement was not pled in the Amended Complaint. As to Count II, Magistrate Judge Si-monton recommended that summary judgment be granted as to the Costco Mexico claims because the economic loss rule bars raising breach of contract issues as torts. Magistrate Judge Simonton also recommended that summary judgment be granted as to Count III for two reasons. First, she found that the economic loss rule bars the tort claims. Second, pursuant to the finding in Count I that the alleged oral agreements which form the basis of the fraud claims are unenforceable, Plaintiff cannot avoid the Statute of Frauds by restating its breach of contract claim as a tort. Finally, Magistrate Judge Simonton recommended that the Motion to Dismiss be denied as moot in light of her recommendations as to the Motion for Summary Judgment. Defendant has no objections to the R & R. Plaintiff, however, has filed numerous objections, which the Court now addresses. II. Analysis A. Objection as to Choice of Law In an objection that applies to the entire analysis of the R & R, Plaintiff contends that Texas rather than Florida law should apply to all claims. After a hearing was held on the objections to the R & R, the Court allowed the parties to brief the issue of which states’ law should apply to the claims. The Court initially indicated at the hearing that it agreed with Magistrate Simon-ton’s application of Florida law to both the breach of contract and tort claims. After reviewing the briefs submitted by both parties on the choice-of-law issue, the Court still finds that Florida law applies to all claims. 1. Contract Law Claims At the outset, the Court notes that to the extent a breach of the written 2003 B-stock agreement is alleged, the parties appear to be in agreement that Texas law governs because of the choice of law provision in the contract. Accordingly, the Court’s discussion of which states’ law governs is limited to the oral contract claims at issue. Defendant Uniden vigorously asserts that because Topp has for the very first time, in its objections to the R & R argued that the Texas Statute of Frauds applies to its oral contract claims in Count I, it has waived the right to argue Texas law applies. Topp counters that in relying on Florida law it was only responding to Uni-den’s Florida-based arguments and during oral argument in front of the Magistrate, it merely admitted that no one had thought about whether Florida law applied without conceding the point. After thoroughly reviewing the record presented to the Magistrate, the transcript of the oral argument during which the Magistrate questioned Topp closely on its reliance upon Florida law, and the briefs submitted by the parties, the Court agrees with Defendant that Plaintiffs time to argue that Texas law applies to the oral contract claims has passed. First, unlike with respect to the tort law claims discussed infra, Plaintiff never once cited to a Texas case or stated to the Magistrate Judge that it was asking the Court to consider the application of Texas law to its contract claims. In fact, Plaintiff stated during oral argument that, “unless one side or the other is asking the court to apply the law of another forum, it is the law of forum (sic) where the court sits in diversity matters.” Plaintiff now argues that it was Uniden’s burden to bring the choice of law “issue” to the Court’s attention. The Court finds, as Plaintiff itself stated at oral argument, that with respect to the contract issue, “because the parties failed to consider the choice of law in this diversity case, we must presume that the substantive law of the forum (Florida) controls.” International Ins. Co. v. Johns, 874 F.2d 1447, 1458 n. 19 (11th Cir.1989). In American Home Assur. Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237 (11th Cir.1985), a party did not raise a choice of law issue on summary judgment and the district court applied the law of its own forum. Id. at 1238. After the party lost on summary judgment, it raised the choice of law issue in a motion to amend the judgment, arguing that the court had erred in applying the law of its forum. Id. On appeal, the Eleventh Circuit held that the district court was well within its discretion in denying the motion where the choice of law issue was raised for the first time after the entry of summary judgment. Id. at 1239. It noted that plaintiff attempted to raise the argument only after failing to prevail in its interpretation of the forum’s law, and allowing the litigant to now do so would essentially afford “ ‘two bites at the apple.’ ” Id. (citation omitted). It is within this Court’s discretion as to whether it will receive evidence not presented to the Magistrate. See Papapanos v. Lufthansa German Airlines, 1996 WL 33155438 *11 (S.D.Fla.1996)(diseussing why court should be reluctant to consider matters not addressed before the Magistrate). Although summary judgment has not yet been entered and the Court recognizes that the district court’s relationship with magistrates differs from its relationship with the appellate court, the same principles apply. Allowing Plaintiff to now present an entirely new argument even though the Magistrate expressly inquired as to Topp’s stance on choice of law would defeat the purpose of referring this matter to the Magistrate. Here, where Plaintiff has not cited to a single Texas case in its summary judgment pleadings or at oral argument and so much time has already been expended on this case, the Court exercises its discretion to decide that it is inequitable to now entertain a choice-of-law argument. Thus, Florida law will continue to apply to Plaintiffs oral contract claims. 2. Tort Law Claims Plaintiffs argument that Texas law should apply to its tort claims is a slightly easier pill for the Court to swallow. Although neither party raised the issue to the Magistrate by fully briefing the choice of law issue, Plaintiff had at least some citations to Texas case law and made at least some representations during oral argument that Texas law should apply. It is also correct in now arguing that it was not improper to also cite to Florida law as an argument in the alternative. Therefore, the Court will engage in a choice-of-law analysis. A federal district court sitting in Florida and deciding a tort claim is required by Florida choice-of-law rules to apply the “most significant relationship test.” Trumpet Vine Inv. v. Union Capital, 92 F.3d 1110, 1115-1116 (11th Cir.1996). Under this test, the court will apply the law of the jurisdiction that has the most significant relationship to the occurrence and the parties under the principles as stated in the Restatement (Second) of Conflict of Laws § 6 (1971). Id. Contacts to be taken into account in applying the principles of § 6 include (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of the business of the parties and (d) the place where the relationship, if any, between the parties is centered. Restatement (Second) of Conflict of Laws § 145. The Restatement also notes that “these contacts are to be evaluated according to their relative importance with respect to the particular issue.” Id. The Restatement also contains a provision, § 148, applicable to fraud and misrepresentation claims. It provides, in relevant part: (2) When the plaintiffs action in reliance took place in whole or in part in a state other than that where the false representations were made, the fornm will consider such of the following contacts, among others, as may be present in the particular case in determining the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties: (a) the place, or places, where the plaintiff acted in reliance upon the defendant’s representations, (b) the place where the plaintiff received the representations, (c) the place where the defendant made the representations, (d) the domicile, residence, nationality, place of incorporation and place of business of the parties, (e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and (f) the place where the plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant. The Eleventh Circuit has considered § 148 contacts in addition to § 145 contacts on at least one occasion. See Trumpet Vine Inv., 92 F.3d at 1118, but see Green Leaf Nursery v. I.E. DuPont De Nemours and Co., 341 F.3d 1292 (11th Cir.2003)(only considering § 145 in deciding that Florida law applied to a fraudulent inducement claim). Consequently, this Court will consider both sections in its analysis. The Court considers §§ 145 and 148 contacts together, as the contacts set out in each overlap substantially. First, Plaintiff alleges that the tortious conduct occurred in Texas. In support, it points out that one of Plaintiffs executives stated that he often went to Texas to meet with Uniden, while one of Uniden’s executives only testified to a single meeting in Miami. The Court supposes that Plaintiff is asking it to infer that either Defendant made or Plaintiff accepted the representations in Texas. The Court does not find the evidence presented by Plaintiff establishes either that Plaintiff received or that Defendant made the alleged representations in Texas. In Trumpet Vine Inv., a case heavily relied upon by Plaintiff, the court was able to identify the particular meeting at which the alleged representations occurred. 92 F.3d at 1118. Here, Plaintiff either does not or cannot point to any particular meeting or event during which these representations took place, which leads the Court to place less weight on these particular factors. While Florida may not be the place where the representations took place, the Court cannot say that they took place in Texas either, thus leading the Court to conclude that neither state emerges as the place where the representations were received or made or the place where the tortious conduct occurred. Plaintiff also seems to fail to take into account the place where it acted in reliance upon Defendant’s representations. Plaintiff Topp is a Florida corporation, and all of its principals and employees reside in Florida. In the Amended Complaint, it alleges that in reliance on Defendant’s representations, it “continu[ed] to do business with Uniden America, b[ought] B-product from Uniden America, and invest[ed] in facilities for the refurbishing of Uniden America B product.” The Court assumes that because Topp’s operations are centered in Florida, the place where it performed these acts in reliance was in Florida. Thus, this factor militates in favor of applying Florida law. Turning to the factor of the place of injury, Topp argues that this factor is “less significant in the case of fraudulent representations.” Id. at 1116 (citation omitted). Topp then goes on to argue that although it is a Florida corporation, because customers were lost in other fora such as Canada and Mexico, the connection to Florida is more tenuous. Topp also cites to Default Proof Credit Card Sys., 753 F.Supp. 1566, 1571 (S.D.Fla.1990) (citing comment f to § 145 of the Restatement(Second) of Conflicts of Law), for the proposition that where the loss of customers and trade is in more that one state, the effect of the loss will be felt most severely at plaintiffs headquarters, but that this place may have only a slight relationship to defendant’s activities and to plaintiffs loss of customers or trade. While it may be true that this factor takes a backseat to other contacts in fraud cases, the Court still affords it weight where as here the place of tortious conduct is unclear. And, the Court does not really agree that the place of injury is scattered. It appears to the Court that with all of the operations and personnel Topp has in Florida, that majority of the injury necessarily occurred in Florida. Further, the Court does not find the citation to Default Proof Credit Card Sys. persuasive. First, that case dealt with ascertaining the place of injury in a misappropriation of trade secrets context. Second, the comment of the Restatement cited by that court speaks to the injury suffered through false advertising and misappropriation of trade values. Therefore, the Court finds that the place of injury factor nudges it towards the application of Florida law. Finally, considering where the relationship of the parties is centered, Topp urges the Court that because written contracts between the parties have contained Texas choice of law provisions, Texas is where the relationship is centered. The Court simply does not find that this in and of itself is enough to conclude that Texas is where the parties’ relationship is centered. And, there is no other evidence presented by Topp to support that conclusion. On balance, the Court finds that Florida has the most significant relationship to the claims, and that Florida law should apply to Topp’s tort claims. The place of injury, although possibly felt in places other than Florida, indisputably occurred mainly in Florida. Topp seems to have acted in reliance on the alleged misrepresentations in Florida. Topp is located in Florida, counsel is from Florida, and chose to bring this case in Florida. Conversely, the place of the misrepresentations and the place where the parties’ relationship is centered is unclear. Florida has an interest in this case and protecting a Florida Plaintiff, rendering the application of Florida law entirely appropriate. B. Count I Plaintiff objects to the R & R’s analysis, arguing that (1) Fla. Stat. § 672.201 applies to its claims and thus there is a quantity term sufficient to satisfy the Statute of Frauds; (2) the Statute of Frauds does not apply to fully performed contracts; (3) the R & R wrongly rejected Plaintiffs promissory estoppel argument; (4) the 2003 written contract did not extinguish Plaintiffs existing claims; and (5) the 2003 written B-stock agreement has been placed at issue in the pleadings. 1. Alleged Oral A-stock and B-stock Agreements are Unenforceable Pursuant to the Statute of Frauds Magistrate Judge Simonton found that the alleged oral agreements as to both new product (A-stock) and old product IB-stock) were unenforceable pursuant to the Statute of Frauds. She found that of the two potentially applicable Florida Statutes of Frauds, Fla. Stat. § 725.01, the general statute, and § 672.201, which governs oral contracts for sale of goods, § 725.01 controlled. In making this finding, she relied on Eleventh Circuit precedent applying § 725.01 and determining that oral distributorship agreements intended to last for more than one year, such as those at issue here, are not enforceable. See All Brand Importers v. Tampa Crown Distrib. Inc., 864 F.2d 748 (11th Cir.1989) (affirming grant of summary judgment on counterclaim under § 725.01 on the ground that oral exclusive distributorship contract was perpetual). See also Anthony Distrib., Inc. v. Miller Brewing Co., 941 F.Supp. 1567, 1574 (M.D.Fla.1996) (applying § 725.01 to find that alleged oral distributorship agreement not supported by writing unenforceable). Florida state court cases considering this issue have also applied § 725.01 to like factual scenarios. See, e.g., Coleman Co. v. Cargil Int’l Ccnp. 731 So.2d 2 (Fla.3d Dist.Ct.App.1998) (finding that oral distributorship agreement was unenforceable pursuant to statute of frauds, relying on both §§ 725.01 and 672.201 in so finding.). After finding that § 725.01 governed Topp’s claims, Judge Simonton then determined that none of the writings presented by Topp satisfy the Statute of Frauds because they lack the essential terms of the agreements: duration, quantity, price and geographic territory. The Court adopts the R & R’s analysis and agrees that Topp’s breach of oral agreement claims, with respect to both A-stock and B-stock, are barred by the Statute of Frauds. To the extent Topp objects to the R & R on the grounds that § 672.201 rather than § 725.01 applies, the objection is overruled. The Amended Complaint itself alleges that the agreements breached were “exclusive distribution agreements.” Further, the facts of this case lend themselves to establishing, if anything, an exclusive distribution agreement rather than an oral contract for a sale of particular goods. Therefore, the Court finds persuasive, as Judge Simonton did, case law applying § 725.01 to such agreements. The Court also finds that none of the writings relied upon by Topp, considered either separately or as a whole, supply the key terms of the alleged oral agreements. Topp argues that because the agreements dealt with a sale of goods, they are governed by Fla. Stat. § 672.306, which provides, in relevant part, “[a] lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods .... ” Plaintiff contends that this provision means that “all” is a sufficient quantity term under this section. See, e.g., Riegel Fiber Corp. v. Anderson Gin Co., 512 F.2d 784, 788-91 (5th Cir.1975) (reversed a dismissal on “Statute of Frauds grounds finding “all” a sufficiently definite quantity term.”). Plaintiff also proffers a writing not discussed in the R & R to support its position. They claim that a letter from Defendant’s CEO, sent January 31, 2001, confirms the oral B-stock agreement because it states “our relationship has always been one of reciprocal exclusivity.” First, as just discussed, Judge Simonton found, and the Court agrees, that this was a contract for an exclusive distributorship agreement rather than a contract for a sale of goods. Second, assuming arguendo that “all” is a sufficient quantity term under § 672.306, Topp has still not proffered any writings that speak to duration, price or subject matter, which under § 725.01, are key terms needed to satisfy the Statute of Frauds. Plaintiff asserts that the exact terms of the parties’ agreement are issues for trial. This assertion is simply not supported by Florida case law, and the Court rejects the argument. Case law is clear that even if a writing shows the parties’ clear intent to be bound, that is “distinct from the question of sufficiency under the Statute of Frauds.” Craig R. Weiner Assoc. Inc. v. Sherden, 444 So.2d 431, 432 (Fla. 5th Dist.Ct.App.1983). Further, the January 31, 2001 writing Plaintiff points to still does not provide enough to take the oral agreement out of the Statute of Frauds. While it does refer to a relationship of reciprocal exclusivity, it also states in the same paragraph that “Topp wants to have a written agreement in place. The draft we reviewed is close to satisfying both companies.” Even if this writing were enough to define a quantity term, it still does not speak to duration, price, or any of the other key terms of the alleged oral agreement. What is perhaps even more telling is that this writing explicitly states that the parties had not yet reached an agreement. How the Court could now use the same writing to define terms of an oral agreement existing at that same time is unclear. Plaintiffs objection that full performance takes the agreement out of the Statute of Frauds is also overruled. Topp cites to numerous Florida cases which it asserts stand for the proposition that the Statute of Frauds applies only to executo-ry contracts and does not apply to agreements fully performed on both sides. Without addressing whether the alleged oral agreements were in fact fully performed, the Court finds Topp’s argument to be unpersuasive. In Eclipse Medical, Inc., v. American Hydro-Surgical Instruments, Inc., 262 F.Supp.2d 1334, 1346 (S.D.Fla.1999), plaintiffs argued that a performance exception exempted them from Statute of Frauds requirements. The court explained that “Florida courts have uniformly held that the ‘performance exception’ to the Statute of Frauds, which arose in land sale cases, applies only when a plaintiff seeks purely equitable relief.” The court further explained that although “some courts have expanded the performance exception to include oral agreements other than those for the sale of land ... every court that has allowed the exception has explicitly done so only in cases at equity when the relief sought was specific performance in the form of payment due under the oral agreement.” Id. at 1346, n. 4 (emphasis added). Here, Topp is seeking unspecified damages, and does not appear to be seeking equitable relief in the form of payment due under the agreement. Topp has not distinguished or addressed Eclipse Medical in any manner, and none of the cases cited by Topp post-date Eclipse Medical. The Court finds Eclipse Medical applies here and the instant case is not one where full performance will take the agreements out of the Statute of Frauds. Topp also objects to the R & R on the grounds that it erred in finding that the 2003 written contract extinguished existing claims and in rejecting its promissory estoppel argument. The Court need not address whether the written contract extinguished Topp’s claims because it has already found that the Statute of Frauds bars those claims. The Court also overrules Topp’s promissory estoppel objection. The only argument it sets forth is based on Texas law. As set out in the R & R, Florida law clearly precludes a party from using promissory estoppel to evade the Statute of Frauds. R & R at 38-39. Therefore, the R & R as to Count I is adopted and summary judgment as to Topp’s claims for breach of alleged oral agreements is GRANTED. 2. The 2003 Written B-Stock Agreement Topp objects to the R & R’s finding that the Amended Complaint did not plead a breach of the September 12, 2003 written B-stock agreement. The Court now finds that although the Amended Complaint is unclear as to which contracts Defendant allegedly breached, it does appear that the parties have, to an extent, been litigating under the 2003 written contract, and that Uniden moved for Summary Judgment on Statute of Frauds grounds only as to the alleged oral agreements. Therefore, Plaintiff may file a Second Amended Complaint, alleging in Count I only a breach of the 2003 written contract. Plaintiff shall have until April 6, 2007, to file the Second Amended Complaint. Defendant shall then have until April 26, 2007, to file an answer, and concurrently a Motion for Summary Judgment as to Count I. C. Count II Magistrate Judge Simonton recommended that summary judgment be granted as to the Costco Mexico tortious interference claims because the economic loss rule bars Topp from raising breach of contract issues as torts. In recommending dismissal of Count II, Judge Simonton found that the economic loss rule would prevent Topp from recovering damages stemming from Uniden’s alleged tortious interference with Topp’s contract with Costco Mexico because such damages are subsumed with those damages that would flow from Uniden’s alleged breach of its contract to deliver to Topp products meant for Costco. She found that Topp could only bring a breach of contract claim against Uniden for failing to deliver timely goods to Topp and subsequently selling directly to Costco Mexico, not a tortious interference claim. She noted that there was a particular contract in place between Topp and Uniden regarding the sale of goods to Costco Mexico but that a breach of this particular contract was not alleged. Judge Simonton found Eclipse Medical to be on point with the facts of this case, and adopted its reasoning. There, plaintiff distributors brought an action against defendant suppliers alleging inter alia, breach of contract, fraudulent inducement and tortious interference with business relationships. Under the tortious interference claim, plaintiffs alleged that defendants tortiously interfered by (1) making direct sales to customers within plaintiffs’ exclusive territories, and (2) delaying delivery of products to plaintiffs. As to the allegation that defendants made direct sales in plaintiffs’ exclusive territories, the court found that it simply restated the Plaintiffs claim for breach of contract and was barred by Florida’s economic loss rule. 262 F.Supp.2d at 1353-55. As to the allegation that defendants delayed selling products to plaintiffs, the court found that the only reason defendants would have an obligation to timely deliver goods would arise from the contract between the parties, and therefore, the economic loss rule barred the tort claim. Id. at 1356-57. Plaintiff objects, arguing that Indemnity Insurance Co. of North America v. American Aviation, Inc., 891 So.2d 532, 543 n. 3 (Fla.2004) applies and holds that “[ijnten-tional tort claims such as ... intentional interference ... and other torts requiring proof of intent generally remain viable ... if the parties are in privity of contract.” Plaintiff further argues that even under Eclipse Medical its claim is viable because the interference claim is not premised on conduct that overlaps exactly with its breach of contract claim. The Court disagrees with Plaintiffs reading of Indemnity Insurance and overrules its objection. Plaintiffs reading of Indemnity Insurance is too narrow. Indemnity Insurance specifies that even where parties are in privity of contract, a tort action is still barred where a defendant has not committed a breach of duty apart from a breach of contract. In other words, only if a tort is independent of a breach of contract, and requires proof of facts separate and distinct from the breach of contract claim, will the economic loss doctrine not operate as a bar to the tort claim. See Id. at 537. The footnote in Eclipse Medical upon which Topp relies is mere dicta, citing to a Florida Bar Journal Article opining on what the economic loss rule should stand for. And, even the cited article itself recognizes that “[ijntentional tort claims that allege no more than a breach of contractual obligations should be barred by the doctrine ....” In discussing Hoseline, Inc. v. U.S.A. Diversified Prods. Inc., 40 F.3d 1198 (11th Cir.1994), a case holding that Florida’s economic loss rule barred plaintiffs fraud claim, the article observed that where the defendant under-shipped goods to plaintiffs customers, it “did no more than breach its contract, albeit intentionally, and so it is to that contract that plaintiff must turn for its remedies.” Paul J. Schwiep, The Economic Loss Rule Outbreak: The Monster that Ate Commercial Torts, Fla. B. J., Nov. 1995, at 34, 42 (emphasis added). The Court also finds that even under Eclipse Medical, Plaintiffs claim is still barred by the economic loss rule. Here, the conduct forming the basis of the tort is not independent of a breach of contract. Topp specifically alleged that Defendant, in bad faith, failed to timely and completely fulfill an order procured by Topp for several hundred thousand dollars of new Uniden product meant for Costco Mexico. As a result, Costco Mexico cancelled its order, refused to do more business with Topp, and began to deal directly with Uni-den America. Like the defendant in Eclipse Medical, the only reason Defendant Uniden would have had a duty to timely deliver goods would arise from a contractual obligation. Further, even though Topp may argue that Defendant intentionally breached, like in Hoseline, even where breach is intentional, the economic loss rule forecloses tort claims. Therefore, the R & R is adopted as to Count II’s Costco Mexico claims, and summary judgment is GRANTED. D. Count III The R & R recommended that summary judgment be granted as to Count III because the economic loss rule bars the tort claims and also because pursuant to the conclusion in Count I, that the alleged oral agreements which form the basis of the fraud claims are unenforceable, Plaintiff cannot avoid the Statute of Frauds by restating its breach of contract claim as a tort. Because the Court affirmed the R & R’s finding that all oral agreement claims were barred by the Statute of Frauds, the Court further affirms the R & R that to the extent the fraud claims in Count III are premised on unenforceable oral agreements, the Motion for Summary Judgment is GRANTED. Under Florida law, the Statute of Frauds “may not be avoided by a suit for fraud based on oral representation.” See Eclipse Med. Inc., 262 F.Supp.2d at 1345 (citation omitted). The R & R also denied the Motion to Dismiss as moot. With respect to Count III, Defendants moved to dismiss on the ground that Topp failed to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b). At the hearing, Topp conceded that it had not pled the fraud claim with sufficient specificity, and asserted that some of the allegedly fraudulent actions upon which it now relies were not known to it at the time it filed the Amended Complaint (DE # 226 at 68, 75-76). The Court agrees that Count III does not meet the pleading requirements of 9(b). Therefore, the Motion to Dismiss as to the remainder of Count III is GRANTED without prejudice, with leave to refile in the Second Amended Complaint, in conformity with the requirements of 9(b). In Count III of the Second Amended Complaint, Plaintiff may only allege fraudulent inducement with respect to the 2003 written B-stock agreement. The Court reserves judgment on whether the economic loss rule bars Plaintiffs tort claims to the extent that the 2003 written B-stock agreement forms the basis of the fraud claim, because the R & R did not expressly consider the written agreement in its analysis. Defendant shall have leave to file a one page pleading arguing that the economic loss rule applies, to be filed by April 26, 2007. III. Conclusion ADJUDGED that United States Magistrate Judge Andrea M. Simonton’s Report and Recommendation (D.E. No. 228) filed on January 22, 2007 is AFFIRMED and ADOPTED IN PART. Accordingly, it is ADJUDGED that: (1) Defendant’s Motion for Summary Judgment as to Plaintiffs breach of oral agreement claims in Count I is GRANTED. (2) Defendant’s Motion for Summary Judgment as to Count II as it pertains to Costco Mexico is GRANTED. (3) Defendant’s Motion for Summary-Judgment as to Count III as it pertains to the oral agreements is GRANTED. (4) Defendant’s Motion to Dismiss as to Count III is GRANTED, without prejudice. Plaintiff shall have until April 6, 2007, to file a Second Amended Complaint. The Second Amended Complaint may allege a breach of the written 2Ó03 B-stock agreement and a fraudulent inducement claim as it pertains to the 2003 agreement. The fraud claim shall be pled in conformity with Fed.R.Civ.P. 9(b). Defendant shall have until April 26, 2007, to file concurrently an answer and Motion for Summary Judgment as to the new Count 1. (5) Defendant’s Motion for Summary Judgment as to Count III as it pertains to the written 2003 B-stock agreement is DENIED without prejudice. Defendant shall have until April 26, 2007, to refile a one page pleading alleging that the economic loss rule applies to the new Count III. REPORT AND RECOMMENDATION RE: DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SIMONTON, United States Magistrate Judge. Presently pending before the Court are Defendant Uniden America Corporation’s (hereafter Uniden America), Motion For Summary Judgment (DE # 101, filed 8/25/06) and Defendant Uniden America’s Motion To Dismiss the Amended Complaint (DE ## 58, 59, filed 6/8/06). These motions are referred to the undersigned Magistrate Judge (DE # 114). These motions are fully briefed (DE ## 79, 85, 102, 133, 143, 160). On November 28, 2006, the undersigned held a hearing on the motions. For the reasons stated below, it is recommended that Defendant’s motion for summary judgment be granted, and that Defendant’s motion to dismiss be denied as moot. I. Introduction Plaintiff Topp, Inc., (hereafter Topp) is proceeding under a three-count Amended Complaint (DE # 41). In Count I of the Amended Complaint, Topp contends that Uniden America breached exclusive distribution agreements for the sales of new products in Latin America and used products in the United States, Canada and Latin America. Specifically, Topp contends that, beginning in 1998, it served as Uniden America’s sole independent sales representative, and subsequently, at some unstated date, Uniden America’s exclusive distributor, for certain new products in Latin America. Topp further contends that beginning in 1996, Topp purchased, on an exclusive basis, Uniden America’s “as is” products returned from Uniden America’s United States distributors and Topp then exclusively distributed the refurbished “as is” products to retailers in the United States, Canada and Latin America. Topp contends that it relied upon its exclusive agreements with Uniden America, and upon Uniden America’s assurances the agreements would continue, in purchasing millions of dollars of new and refurbished products and expending considerable effort and expense in marketing Uniden America’s products. Topp then claims that in late 2004, Uniden America breached the exclusive distributor agreement with Topp for new products by terminating it without advance notice, and that Uniden America then began selling new products, at substantially lower prices, both directly and through third parties, to customers originated by Topp during the existence of the exclusive distribution agreement. Topp further alleges that these actions by Uniden America effectively destroyed Topp’s ability to sell refurbished “as is” Uniden America products in Latin America and effectively breached the exclusive distribution agreement for the sale of refurbished “as is” Uniden America products. Topp also contends that Uniden America breached the exclusive distribution agreement for the sale of refurbished “as is” Uniden America products by skimming off the most lucrative B-stock product for its own use, and leaving the less desirable B-stock product for Topp (DE #41 at ¶¶ 7-20). In Count II, Topp alleges that Uniden America tortiously interfered with Topp’s advantageous business relationships with Lectron Radio Sales, Ltd. (Lectron), and Costco Wholesale Corporation in Mexico (Costco Mexico). Specifically, Topp contends that, beginning in 1998, it had an advantageous business relationship selling refurbished Uniden America telephones to Lectron, located in Canada, and that in July 2004, Uniden America threatened Lectron that it would terminate direct sales of other Uniden America products to Lectron if Lectron did not stop purchasing refurbished Uniden America telephones from Topp. Topp claims that due to these threats, Lectron stopped purchasing refurbished Uniden America telephones from Topp. Topp further claims that in the fall of 2004 it obtained two orders totaling nearly $1,000,000.00 from Costco Mexico, and that, in an attempt to sabotage the relationship between Topp and Costco Mexico, Uniden America, in bad faith, failed to timely and completely fulfill an order procured by Topp for several hundred thousand dollars of new Uniden America product meant for Costco Mexico. As a result, Costco Mexico cancelled its order, refused to do more business with Topp, and began to deal directly with Uni-den America (DE # 41 at ¶¶ 21-30). In Count III, Topp contends that over the course of Uniden America’s business relationship since 1996, Uniden America continuously falsely represented to Topp that it was supplying Topp with all of the B-products it obtained in that time period, and that at the time Uniden America made those statements, Uniden America knew that the statements were false because it was skimming the best B-products off for its own benefit on resale, leaving to Topp the B-products of lesser value. Topp alleges that Uniden America intended that Topp should rely on these false statements, and that Topp, oblivious to the skimming, reasonably relied on these misrepresentations to its detriment by continuing to do business with Uniden America, buying B-product from Uniden America, and investing in facilities for the refurbishing of Uniden America B-product (DE # 41 at ¶¶ 31-35). The instant motions followed. II. The Instant Motions A. Defendant’s Motion For Summary Judgment In its summary judgment motion, Uni-den America requests summary judgment on Topp’s claim that Uniden America breached an oral contract making Topp the exclusive distributor of certain new Uniden America products because 1) the alleged oral contract is unenforceable pursuant to the statute of frauds; 2) the alleged oral contract lacks all of the essential terms of a contract; and 3) if the claim belongs to any entity, it belongs to Topp-Mexico, S.A., not Topp. Uniden America also requests summary judgment on all of Topp’s oral contract claims regarding B-Stock product prior to September 12, 2003, because the claims: 1) are unenforceable under the statute of frauds; 2) lack all of the essential terms of a contract; and 3) contravene the merger doctrine. Uniden America further requests summary judgment on the tortious interference claim related to Costco Mexico because 1) the claim violates the economic loss rule; and 2) if the claim belongs to any entity, it belongs to Topp-Mexico, Inc., not Topp. Next, Uniden America requests summary judgment on the fraud count because Topp cannot maintain the fraud claim, which is based upon an alleged breach of contract, based upon alleged statements made by Uniden America prior to the formation of the alleged contract in order to induce Topp to enter into the contract because the statements in question relate to performance under the contract. Finally, Uniden America asks for summary judgment as to Topp’s unpleaded damage claims regarding: 1) Topp’s loss of Mexico business; 2) the loss of Topp’s “entire investment”, the return of master unopened cartons; and 4) Uni-den America’s alleged failure to maximize customer returns of B-Stock product for delivery to Topp (DE ## 101, 102). Topp responds that the record contains written memoranda which are sufficient to take the alleged oral exclusive distribution agreements outside the Statute of Frauds, and that a quantity term sufficient to satisfy the Statute of Frauds can be inferred from prior and subsequent written agreements between the parties. Topp further asserts that the merger clause in the subsequent written B-stock contract does not erase a pre-existing breach of a prior oral contract. Concerning the tortious interference count, Topp contends that the record evidence shows that Uniden America’s alleged improper actions were tortious and were more than a mere breach of contract. Finally, as to the fraud claim, Topp contends that the record establishes that Uni-den America skimmed B-stock and lied about that fact to Topp, and that because the fraud induced Topp to enter into a contract with Uniden America, the fraud allegation is not barred by the economic loss rule (DE # 45). In reply, Uniden America states that none of the documents relied on by Topp in its opposition to the motion for summary judgment refer to the essential terms of an agreement: quantity; duration; or price, (or even geographic territory or whether the alleged agreement included new product). Next, Uniden America reiterates its argument that the tortious interference claim as to Costco Mexico is barred by the economic loss rule. Finally, Uniden reiterates that Topp’s claim that Uniden America, acting in bad faith, breached its contract with Topp, cannot be converted into a tort claim by characterizing the alleged breach as a fraud (DE # 143). B. Defendant’s Motion To Dismiss The Amended Complaint In its motion to dismiss, Uniden America contends that: 1) Count I should be dismissed because Topp’s oral contracts claims are unenforceable under Florida’s statute of frauds; 2) Topp’s tortious interference claim relating to Costco Mexico fails as a matter of law because a) a tor-tious interference claim based on a delay in delivering products is barred by the economic loss rule and b) Uniden America was the source of the business opportunity allegedly interfered with; and 3) Count III should be dismissed because: a) the fraud claim is barred by the economic loss rule; b) Topp cannot avoid the Statute of Frauds by alleging a fraud claim based on oral representations and c) Topp has failed to plead fraud with the particularity required by Fed.R.Civ.P. 9(b) (DE ## 58, 59). Topp responds that its claim for breach of exclusive distribution agreements is outside the statute of frauds because 1) the exclusive distribution agreement beginning in 1996 relating to “as is” products is documented by letters, email messages and other documents sent by Topp to Uni-den America, to which Uniden America failed to object, and by the September 12, 2003 written agreement; 2) the September 12, 2003 contract is evidence of the exclusive distribution agreement beginning in 1996; 3) the exclusive distribution agreement for new products is documented by numerous writings sent by Topp to Uniden America, to which Uniden America failed to object; 4) the exclusive distribution agreements are outside of the statute of frauds because writings between the parties are sufficient to make out the contract. Topp then states that the claim for tor-tious interference relating to Costco Mexico should not be dismissed because Topp alleges that Uniden America, in bad faith, failed to deliver products to Topp, and because Uniden America was not a party to the contract between Topp and Costco Mexico. Finally, Topp asserts that the fraud count should not be dismissed because 1) if there are no valid exclusive distributor agreements, the economic loss rule does not apply; 2) the fraud claim is independent of any enforceable agreement and 3) the fraud claim is pled with sufficient specificity (DE # 79). At the hearing, Topp conceded that it had not pleaded the fraud claim with sufficient specificity, and asserted that some of the allegedly fraudulent actions upon which it now relies were not known to it at the time it filed the Amended Complaint (DE # 226 at 68, 75-76). Uniden America replies that the written September 12, 2003 contract regarding “as is” telephones does not satisfy the statute of frauds as: 1) it was executed seven years after the alleged formation of the oral contract; 2) states that it is the only agreement between the parties and super-cedes all prior agreements; and 3) the Amended Complaint does not allege that this agreement was breached. Uniden America also states that Topp has not pointed to any evidence which supports the existence of the supposed oral exclusive distributorship for Uniden’s new product, which was allegedly formed in 1988. Uni-den America also notes that the Amended Complaint does not allege the written agreement allegedly breached or the essential terms of the agreements allegedly breached. Uniden reiterates its initial argument concerning the tortious interference claim relating to Costco Mexico. Next, Uniden America again asserts Topp cannot maintain a claim for fraudulent inducement to contract because the alleged oral contracts are unenforceable. Finally, Uniden America contends that Topp’s fraudulent inducement claim cannot be predicated on the September 12, 2003 written contract because Topp has not pled that claim in the Amended Complaint (DE #85). III. The Standard for Summary Judgment Rule 56(c) of the Federal Rules of Civil Procedure authorizes entry of summary judgment where the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.2001). Summary judgment is an integral part of the federal rules as a whole, which are designed to secure a just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court’s focus in reviewing a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). In assessing whether the mov-ant has met its burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion and all reasonable doubts about the facts should be resolved in favor of the non-movant. See Denney v. City of Albany, 247 F.3d at 1181. The moving party has the burden to establish the absence of a genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Allen v. Tyson Foods, Inc., 121 F.3d at 646. Once the moving party has established that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law, the burden shifts to the non-movant to come forward with a response setting forth “specific facts” showing that there is a genuine issue for trial. Thus, the party opposing summary judgment may not rest upon the mere allegations or denials of the pleadings, but must present sufficient evidence favoring the non-moving party for a jury to return a verdict in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Conclusory allegations will not suffice to create a genuine issue of material facts. See Leigh v. Warner Bros. Inc., 212 F.3d 1210, 1217 (11th Cir.2000). There must be more than a scintilla of evidence; there must be “substantial conflict in evidence to support a jury question.” Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir.1998), quoting Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989). Ultimately, “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, 121 F.3d at 646; accord Denney v. City of Albany, 247 F.3d at 1181. IV. Undisputed Material Facts Uniden America sells cordless telephones and other electronics products all over the world (DE # 103 at 1, ¶ 1). Topp was engaged in the business of refurbishing and selling consumer electronic products (DE # 103 at 1, ¶ 2). A. The Business Relationship Between Topp and Uniden America Regarding B-Stock 1. The Business Relationship Between Topp and Uniden America Regarding B-Stock Before November 30, 1999 On December 3, 1996, Uniden America and Topp entered into a Refurbishment and Sale Agreement in which Uniden America agreed to provide Topp with Uni-den branded returned “as is” product (consumer cordless telephones, radar detectors and CB radios) for refurbishment on an exclusive basis except for product which was returned to a Uniden facility for refurbishment. The agreement expressly stated that it lapsed in three years except that either party could cancel the agreement for any reason with six months written notice (DE # 103 at 2, ¶ 5; DE # 134 at 5, ¶ 8). On March 31, 1997, Uniden America and Topp entered into a Sales Agreement in which Uniden America agreed to sell to Topp all of its A-l refurbished Uniden branded consumer cordless telephones on a limited exclusive basis. Uniden America reserved the right to sell its product to certain of its customers. The agreement was limited in duration to one year, and subject to prior termination by either party in writing upon the other party’s breach or upon six months’ written notice (DE # 103 at 2, ¶ 6; DE # 134 at 5, ¶ 9). Also on March 31,1997, Uniden America and Topp entered into another sales agreement for the sale of Uniden America’s customer returned B-Stock Uniden branded consumer cordless telephones on a limited exclusive basis. It also was limited in duration to one year, and subject to prior termination by either party upon the other party’s breach or upon six months’ written notice (DE # 103 at 3, ¶ 7). On November 1, 1997, Uniden America entered into a Sales Agreement with Topp in which Uniden agreed to sell to Topp all of its A-l refurbished Uniden branded consumer cordless telephones on a limited exclusive basis. The agreement stated that it was limited in duration to two years, and subject to prior termination by either' party in writing upon the other party’s breach or upon twelve months written notice (DE # 103 at 3, ¶ 8; DE # 134 at 5, ¶ 9). This agreement lapsed on November 30, 1999 (DE # 103 at 4, ¶ 11; DE # 134 at 5-6, ¶ 10). All of the above agreements contained merger clauses in which the parties agreed that the specific agreement superseded any prior agreements, written or oral, with respect to the subject matter of that agreement (DE # 103 at 3, ¶ 9). 2. The Business Relationship Between Topp and Uniden America Regarding B-Stock From November 30, 1999 Through September 12, 2003 From November 30, 1999 through September 12, 2003, the business relationship between Uniden America and Topp was not memorialized in a written agreement. Topp and Uniden America continued to do business with Topp purchasing product from Uniden America pursuant to specific purchase orders (DE # 103 at 4, ¶ 12; at 9, ¶ 35). From November 1999 through September 2003, Uniden America and Topp exchanged several draft agreements that were never signed because they could not agree on terms (DE # 103 at 4, ¶-¶ 13, 14; at 5, ¶ 17). 3. The September 12, 2003 B-Stock Agreement Between Topp and Uni-den America On September 12, 2003, Uniden America and Topp signed a written agreement in which Uniden America agreed, under certain conditions, to sell exclusively to Topp all of Uniden’s B-Stock products, except products used for Uniden’s customer repair, customer service or consumer direct sales, and under which Topp was described as Uniden America’s exclusive distributor for B-stock (DE # 103 at 5, ¶ 16; DE # 134 at 7, ¶¶ 14-15). The agreement did not contain a price term, and if the parties could not agree on price, there was no obligation to buy or sell (DE # 103 at 5, ¶ 18; DE # 134 at 7, ¶ 14). The agreement was for two years’ duration, subject to prior termination by either party in writing upon breach by the other party. After expiration, the agreement would be automatically renewed for successive one-year terms unless either party gave written notice of its intent to terminate the agreement, at least thirty days prior to the expiration of the agreement (DE # 103 at 5-6, ¶ 19). The agreement contained an integration clause stating that the agreement constituted the entire agreement between the parties with respect to the subject matter thereof and that it superseded any prior agreements, written or oral, between the parties (DE # 103 at 6, ¶ 20). On May 17, 2005, Uniden America formally notified Topp of Uniden America’s intent to terminate the September 12, 2003 agreement on September 12, 2005, the expiration date of the two year term (DE # 103 at 7, ¶ 23; DE # 134 at 7-8, ¶ 17). B. The Relationship Between Topp and Uniden America Regarding A-Stock 1. The Relationship Between Topp and Uniden America Regarding A-Stock Before 1993 On May 14, 1990, Uniden America entered into an independent sales agreement with Topp pursuant to which Topp earned commissions in connection with the sale of certain cellular and pager products in Central and South America and the Caribbean. This agreement gave Topp the exclusive right to distribute Uniden cellular telephones and pager products in Central America, the Caribbean and South America. This agreement contemplated written arrangements for other products on a case-by-ease basis. This agreement expired, by its own terms, on May 30, 1993 (DE # 103 at 1, ¶ 3; DE # 134 at 1, ¶2). On February 27, 1992, Uniden America entered into an exclusive independent representative agreement with Topp giving Topp the exclusive right to distribute Uni-den cellular telephones and pager products in Central America, the Caribbean and South America. Paragraph 4 of the agreement stated that there was no exclusivity granted to Topp as to any other Uniden products, and that sales of any other products would be negotiated on a case-by-case basis. The agreement was effective from January 1, 1992 through December 31, 1995. The agreement stated that it contained the entire understanding of the parties and that it superseded any other oral or written agreement (DE # 103 at 2, ¶ 4; DE # 134 at 1, ¶ 2). 2. The Relationship Between Topp and Uniden America Regarding A-Stock After 1993 On May 13, 1997, Al Silverberg, President of Uniden America, sent a letter in response to a May 7,1997 inquiry from the international account manager for the Sharper Image Company asking for Uni-den America’s main distributors in Latin America and the Caribbean. Silverberg wrote that Uniden America had an exclusive contractual relationship with Topp to represent Uniden in those areas (DE # 134 at 2-3, ¶ 5). In April 2003, Uniden America and Topp discussed an exclusive distribution agreement for Uniden new product. On May 30, 2003, A1 Silverberg, Uniden America’s president, wrote to Jamie Topp and requested detailed marketing and other data in connection with Topp’s desire for an agreement concerning new product. Topp never furnished the data requested by Un-iden America (DE # 103 at 4-5, ¶ 15; at 9-10, ¶ 40). On May 3, 2004, Brendan Morris, Uni-den America’s Vice President for Sales, responded to an inquiry about selling a distributor new Uniden cordless telephones into Latin America by writing that Topp was Uniden America’s exclusive distributor for south of the U.S. border and that Uniden America could not pursue that business with anyone but Topp (DE # 134 at 3, ¶ 6). On May 13, 2004, Jamie Topp wrote Silverberg stating that Topp was the exclusive distributor for new Uniden product for Latin America, that buyers thought Topp was lying to them when it stated it was the exclusive distributor, and that they had to have a definitive solution to the issue immediately (DE # 134 at 2, ¶ 4). On the same day, Silverberg responded that they needed to discuss how Topp could satisfy Wal-Mart’s interest in selling Uniden products in Argentina and Brazil (DE # 134 at 2, ¶ 4). On August 31, 2004, Silverberg wrote to Robert Rubin, Topp’s CEO, advising Rubin that Uniden America and Topp had a single agreement which was the September 12, 2003 written agreement regarding B-stock. Silverberg also wrote that: Topp and Uniden America did not have an agreement for A-stock; Uniden America had refused Topp’s request to include A-stock in the written B-stock agreement; while Uniden America had invited Topp many times to make a proposal for handling territorial distribution of A-stock, Topp never proposed a plan, and no agreement was ever executed (DE # 103 at 6, ¶ 22). V. Uniden America’s Motion For Summary Judgment On Count I Should Be Granted As The Alleged Oral Exclusive Distribution Agreements Are Unenforceable Pursuant To The Statute of Frauds The undersigned recommends that Uni-den America’s motion for summary judgment on Count I be granted. Initially, the undersigned finds that there is a material issue of fact as to whether there were oral exclusive distribution agreements between the parties. However, this does not end the analysis. Oral agreements of the type alleged by Topp are barred by the Statute of Frauds in the absence of a writing which is sufficient to evidence the existence of an agreement. None of the documents relied upon by Topp are sufficient under the Statute of Frauds to indicate the existence of any enforceable exclusive distribution agreement between the parties. Thus, the undersigned finds that Uniden America is entitled to summary judgment on Count I because the Statute of Frauds bars Topp’s allegations that 1) there was an oral indefinite exclusive distribution contract between Topp and Uniden America for Uniden America’s new products (A-Stock) in Latin America and 2) there was an oral indefinite exclusive distribution contract between Topp and Uniden America for Uniden America’s used cellular products (B-Stock) in Latin America, the United States and Canada. Moreover, the September 12, 2003 two-year exclusive distribution contract between Topp and Uniden America for Uni-den America’s used cellular products in Latin America, the United States and Canada specifically stated that it terminated all other agreements between Topp and Uniden America. Thus, there was no oral agreement between the parties concerning B-Stock during the period at issue in this litigation. The undersigned also notes that in the Amended Complaint, Topp does not allege a breach of the September 12, 2003 written agreement. A. There Is A Material Issue of Fact As To Whether There Were Oral Exclusive Distribution Agreements Between The Parties Initially, the record contains evidence, provided by Topp, that at all relevant times to this litigation, there was an oral exclusive distribution agreement between Topp and Uniden America concerning A-stock in Latin America. Topp has also provided evidence that between the expiration of the written B-stock distribution agreement on November 30, 1999 and