Mitsui O.S.K. Lines, Ltd. v. Centurion Logistics Management et al

Filing 69

ORDER DENYING 41 DEFENDANT UNION LOGISTICS' MOTION FOR SUMMARY JUDGMENT WITH REGARD TO PLAINTIFF'S CLAIM FOR ACCOUNTING.. Signed by Judge Samuel Conti on 12/12/2011. (sclc2, COURT STAFF) (Filed on 12/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MITSUI O.S.K. LINES, LTD.,

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Plaintiff,
v.

For the Northern District of California

United States District Court

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ALLIED TRANSPORT SYSTEM (USA),
INC.; CENTURION LOGISTICS
MANAGEMENT; CENTURION LOGISTICS
SERVICES, LTD.; UNION LOGISTICS,
INC.; and DOES 1 through 20,

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Defendants.

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Case No. 10-5586 SC
ORDER DENYING DEFENDANT
UNION LOGISTICS, INC.'S
MOTION FOR SUMMARY JUDGMENT
AS TO PLAINTIFF'S CLAIM FOR
ACCOUNTING

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In this action, Plaintiff Mitsui O.S.K. Lines, LTD.

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("Plaintiff" or "Mitsui") sues Defendants Allied Transport System

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(USA), Inc., ("Allied"), Centurion Logistics Services, LTD.

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("Centurion Services"), Centurion Logistics Management ("Centurion

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Management"), and Union Logistics, Inc. ("Union"), seeking to

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recover allegedly unpaid ocean freight charges and fraudulent

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trucking charges.

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ECF No. 35 ("SAC") ¶ 1.

On September 9, 2011, Union filed a motion for summary

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judgment.

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Plaintiff noted that no discovery had yet taken place between the

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parties.

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the event the Court should find Plaintiff's evidence insufficient

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to defeat summary judgment, the Court should nevertheless deny or

ECF No. 41 ("MSJ").

In its Opposition to Union's MSJ,

ECF No. 46 ("Opp'n") at 8-9.

Plaintiff argued that, in

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defer ruling on the MSJ pursuant to Federal Rule of Civil Procedure

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56(d).1

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declaration stating its need to conduct discovery in order to more

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properly oppose Union's MSJ.

Id.

As required by Rule 56(d), Plaintiff filed a

ECF No. 53 ("Cicala Decl.").

On November 21, 2011, the Court denied Union's MSJ with

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respect to all of Plaintiff's claims except its claim for

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accounting.

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absolutely no meaningful discovery had taken place between Union

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and Plaintiff, the Court temporarily deferred ruling on Plaintiff's

ECF No. 62 ("Nov. 21, 2011 Order).

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United States District Court

For the Northern District of California

Id. at 11.

Noting that

claim for accounting.

However, the Court noted that

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the Cicala Declaration failed to specify what discovery Plaintiff

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sought in support of its accounting claim and how such information

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would preclude summary adjudication of that claim.

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Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (Rule 56(d) requires the

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nonmovant to state "what information is sought and how it would

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preclude summary judgment.").2

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days' leave to file a supplemental declaration curing the

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deficiency and stated that summary judgment would be granted as to

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the accounting claim if Plaintiff failed to do so.

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2011 Order at 11.

See Margolis v.

The Court granted Plaintiff fifteen

November 21,

Plaintiff filed a supplemental declaration on December 6,

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2011.

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ECF No. 67.

("Supp. Cicala Decl.").

The Supplemental

Under Federal Rule of Civil Procedure 56(d)(1), "[i]f a nonmovant
shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition," then the
Court may deny or defer ruling on the motion.
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At the time Margolis was issued, Rule 56(d) was listed as Rule
56(f). However, as the Advisory Committee Notes to the 2010
Amendments to Rule 56 note, "[s]ubdivision (d) carries forward
without substantial change the provisions of former subdivision
(f)."

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Cicala Declaration more clearly sets forth the information

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Plaintiff seeks through discovery to support its accounting claim.

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Id. at 3.

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Union's MSJ as to Plaintiff's accounting claim.

Accordingly, pursuant to Rule 56(d), the Court DENIES

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IT IS SO ORDERED.

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Dated: December 12, 2011
UNITED STATES DISTRICT JUDGE

United States District Court

For the Northern District of California

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