Bruno Rimini (Furniture) Limited v. Connor Marketing, Inc.

Filing 41

MEMORANDUM AND ORDER DENYING without prejudice 30 Plaintiff's Motion for Partial Summary Judgment signed by Senior Judge William B. Shubb on 7/27/2015: IT IS FURTHER ORDERED that all discovery be, and the same hereby is, stayed and shall remain stayed for a period of six months from the date this Order is signed, except that the parties shall be permitted to take the depositions of Simon Wigley, Sean Quinn, Liz England, Keith Bolsen, Ruthie Bolsen, Carlo Banchero, and Marco Forzano. All dates relating to discovery set out in section four of the Court's 29 April 22, 2015 Scheduling Order are hereby vacated. At the expiration of six months or upon completion of the above depositions, whichever occurs first, plaintiff may renew its motion for partial summary judgment. If plaintiff chooses to renew its motion, discovery shall remain stayed until the court rules on that motion. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRUNO RIMINI (FURNITURE)
LIMITED, a United Kingdom
company,

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MEMORANDUM AND ORDER RE: MOTION
FOR PARTIAL SUMMARY JUDGMENT

Plaintiff,

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CIV. NO. 1:14-01906 WBS SAB

v.
CONNOR MARKETING, INC., a
California Corporation,
Defendant,

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----oo0oo----

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Plaintiff Bruno Rimini (Furniture) Limited, a United

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Kingdom company, brought this action for breach of contract to

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recover the price of goods delivered to defendant Connor

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Marketing, Inc., a California company.

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partial summary judgment on its breach of contract claim pursuant

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to Federal Rule of Civil Procedure 56.

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motion and, in the alternative, asks the court to defer

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consideration under Rule 56(d).
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Plaintiff now moves for

Defendant opposes the

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“[A] party may file a motion for summary judgment at

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any time until 30 days after the close of all discovery.”

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Fed. R. Civ. P. 56(b).

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judgment on May 29, 2015, the same day as the deadline to

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exchange initial disclosures pursuant to the court’s April 22,

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2015 Scheduling Order.

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See

In this case, plaintiff moved for summary

(See Docket No. 29.)

Federal Rule of Civil Procedure 56(d) provides that if

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a party opposing summary judgment “shows by affidavit or

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declaration that, for specified reasons, it cannot present facts

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essential to justify its opposition, the court may: (1) defer

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considering the motion or deny it; (2) allow time to obtain

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affidavits or declarations or to take discovery; or (3) issue any

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other appropriate order.”

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Rule 56(d), the requesting party “must show: (1) it has set forth

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in affidavit form the specific facts it hopes to elicit from

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further discovery; (2) the facts sought exist; and (3) the

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sought-after facts are essential to oppose summary judgment.”

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Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525

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F.3d 822, 827 (9th Cir. 2008) (citing California v. Campbell, 138

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F.3d 772, 779 (9th Cir. 1998)).

Fed. R. Civ. P. 56(d).

To satisfy

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“Courts are reluctant to deny Rule 56(d) requests.”

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Freeman v. ABC Legal Servs., Inc., 827 F. Supp. 2d 1065, 1071

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(N.D. Cal. 2011).

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exercise due diligence in conducting discovery, filed an untimely

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Rule 56(d) request, or failed to explain how additional facts

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would oppose summary judgment, the request is generally granted

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with liberality.”

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Typically, “unless plaintiffs failed to

Id.

A declaration made by defendant’s president, Ron Kuber,
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identifies seven individuals he says have “knowledge which will

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support CMI’s position in this case.”

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No. 34-1).)

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Simon Wigley, Sean Quinn, Liz England, Keith Bolsen, and Ruthie

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Bolsen--have “knowledge of the relationship between CMI and BRFL,

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the quality of the purple film and CMI’s efforts to develop the

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brand domestically.”

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Carlo Banchero, has “knowledge of the availability of orange

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Silostop, and the departure of Simon Wigley from Bruno Rimini,

(Kuber Decl. ¶ 21 (Docket

First, he states that five individuals--including

(Id.)

Another individual, identified as

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Ltd., and the scope of business of BRFL.”

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person, Marco Forzano, has “knowledge of the relationship between

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CMI and BRFL and the quality of the purple film.”

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(Id.)

The final

(Id.)

At oral argument on July 24, 2015, defendant’s counsel

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represented that all of these witnesses reside outside the United

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States, with the exception of Keith and Ruthie Bolsen, who

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reportedly live in Texas.

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witnesses would therefore not necessarily be subject to service

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of process compelling them to attend a deposition.

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counsel represented that the Bolsens would testify to facts

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relevant to oppose summary judgment and stated that defendant

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would endeavor to obtain testimony from the remaining foreign

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witnesses to the fullest extent possible.

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Counsel acknowledged that many of the

However,

Plaintiff argues that these representations fall short

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of Rule 56(d)’s requirements because defendant identifies only

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generalized topics, not specific facts, for further discovery and

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fails to explain why these topics are relevant to summary

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judgment.

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several of the topics, such as the business relationship between

(See Pl.’s Reply at 12-15.)

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Plaintiff points out that

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defendant and plaintiff, should already be within defendant’s

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knowledge.

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of contract claim at issue here, plaintiff argues, because they

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are excluded by the parol evidence rule.

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The remaining topics are not relevant to the breach

Although more specificity would help defendant’s

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request, the court is sufficiently persuaded that defendant

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should be afforded the opportunity to depose the individuals it

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has identified.

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same day the parties exchanged initial disclosures would give

Plaintiff’s decision to file its motion on the

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even a diligent party little, if any, time for meaningful

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discovery.

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understandable.

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adjudication of this matter therefore weights in favor of

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deferring consideration.

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Defendant’s request for additional time is thus
The court’s interest in ensuring a thorough

See Freeman, 827 F. Supp. 2d at 1071.

Moreover, the court cannot say at this stage that the

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sought-after facts will not aid defendant in opposing summary

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judgment.

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extrinsic evidence where a contract “is intended to be a final

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expression of that agreement and a complete and exclusive

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statement of the terms,” see Cal Code Civ. Proc. § 1856(a); Cal.

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Com. Code § 2202, California law allows a party to “present

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extrinsic evidence to show that a facially unambiguous contract

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is susceptible of another interpretation.”1 Maffei v. N. Ins. Co.

Although the parol evidence rule prohibits the use of

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Both parties cite the United Nations Convention on
Contracts for the International Sale of Goods (“CISG”) in their
discussion of contract law. (See Pl.’s Mem. at 5-6; Pl.’s Reply
at 4-5; see also Def.’s Opp’n at 7 (“CMI does not dispute the
law.”).) However, “the only circumstance in which the CISG could
apply is if all the parties to the contract were from Contracting
States.” Prime Start Ltd. v. Maher Forest Products, Ltd., 442 F.
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of N.Y., 12 F.3d 892, 898 (9th Cir. 1993); see also Dore v.

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Arnold Worldwide, Inc., 39 Cal. 4th 384, 391 (2006) (“[E]ven if a

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contract appears unambiguous on its face, a latent ambiguity may

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be exposed by extrinsic evidence which reveals more than one

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possible meaning to which the language of the contract is yet

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reasonably susceptible.” (quotation marks and citation omitted)).

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Supp. 2d 1113, 1118 (W.D. Wash. 2006) (quoting Impuls I.D.
Internacional, S.L. v. Psion–Teklogix Inc., 234 F. Supp. 2d 1267,
1272 (S.D. Fla. 2002)); see also Princesse D’Isenbourg Et Cie
Ltd. v. Kinder Caviar, Inc., Civ. No. 3:09-29 DCR, 2011 WL
720194, at *4 n.3 (E.D. Ky. Feb. 22, 2011) (“In United States
courts, the CISG is not applicable when a contract is between
parties having places of business in different States and only
one State is a Contracting State.” (internal quotation marks and
citation omitted)).
The United States is a “Contracting State,” but the
United Kingdom is not.
See Impuls I.D. Internacional, 234 F.
Supp. 2d at 1271; Princesse D’Isenbourg Et Cie Ltd., 2011 WL
720194, at *4 n.3; Prime Start Ltd., 442 F. Supp. 2d at 1118.
For a list of signatories to the CISG, see United Nations
Convention on Contracts for the International Sale of Goods
(Vienna, 1980)(CISG), United Nations Commission on International
Trade Law, http://www.uncitral.org/uncitral/en/uncitral_texts/
sale_goods/1980CISG_status.html (last visited July 17, 2015).
Accordingly, because plaintiff operates in a country that has not
signed the CISG, the CISG cannot govern this dispute.
Federal Rule of Civil Procedure 44.1 requires a party
“who intends to raise an issue about a foreign country’s law must
give notice by pleading or other writing.” See Fed. R. Civ. P.
44.1. At oral argument on July 24, 2015, the parties
acknowledged that they have neither cited to United Kingdom law
nor suggested that United Kingdom law applies. In the Ninth
Circuit, “where ‘both parties have failed to prove the foreign
law, the forum may say that the parties have acquiesced in the
application of the local law of the forum.’” Prime Start Ltd.,
442 F. Supp. 2d at 1119 (quoting Commercial Ins. Co. of Newark,
N.J. v. Pacific–Peru Constr. Corp., 558 F.2d 948, 952 (9th Cir.
1977)); see also Miller v. Glenn Miller Prods., Inc., 454 F.3d
975, 989-90 & n.7 (9th Cir. 2006) (applying California law to an
agreement in “the absence of any argument by the parties that
California law does not govern”). The court will therefore
assume for purposes of this motion that the parties have
acquiesced to the application of California law.
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Although defendant is unable to state precisely what the

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proffered witnesses will say, defendant has sufficiently

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identified areas of inquiry germane to the opposition of

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plaintiff’s motion.

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Accordingly, the court will deny plaintiff’s motion

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without prejudice at this time.

It will further allow defendant

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to depose the seven identified witnesses, to the extent they can

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be compelled to attend a deposition.

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defendant’s counsel requested a deferral of six months.

At oral argument,
In order

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to keep the costs and complications of discovery low, the court

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will therefore stay all discovery, with the exception of these

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seven depositions, for that time period.

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This Order expresses no views on the merits of

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plaintiff’s motion for partial summary judgment, and plaintiff

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may renew its motion at the expiration of six months or upon

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completion of the depositions.

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applicable federal and local rules for opposing the renewed

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motion.

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Defendant shall follow the

IT IS THEREFORE ORDERED that plaintiff’s motion for

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summary judgment be, and the same hereby is, DENIED without

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prejudice.

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IT IS FURTHER ORDERED that all discovery be, and the

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same hereby is, stayed and shall remain stayed for a period of

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six months from the date this Order is signed, except that the

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parties shall be permitted to take the depositions of Simon

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Wigley, Sean Quinn, Liz England, Keith Bolsen, Ruthie Bolsen,

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Carlo Banchero, and Marco Forzano.

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discovery set out in section four of the court’s April 22, 2015
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All dates relating to

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Scheduling Order are hereby vacated.

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months or upon completion of the above depositions, whichever

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occurs first, plaintiff may renew its motion for partial summary

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judgment.

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shall remain stayed until the court rules on that motion.

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Dated:

At the expiration of six

If plaintiff chooses to renew its motion, discovery

July 27, 2015

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