Carson Industries, Inc. v. American Technology Network, Corp.

Filing 103

ORDER GRANTING PARTIAL SUMMARY JUDGMENT TO CARSON RE: 90 GOGGLE KITS IN INVOICE 3245. Signed by Judge Nathanael Cousins on 10/6/2015. (lmh, COURT STAFF) (Filed on 10/6/2015)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

CARSON INDUSTRIES, INC.,
Plaintiff,

United States District Court
Northern District of California

11
12

Case No. 14-cv-01769-NC

ORDER GRANTING PARTIAL

v.

SUMMARY JUDGMENT TO

13
14

AMERICAN TECHNOLOGY

CARSON RE: 90 GOGGLE KITS IN

15

NETWORK, CORP.,

INVOICE 3245

16
17

Defendant.
This order for partial summary judgment supplements the Court’s first order

18

granting in part summary judgment to Carson. As explained in the first summary

19

judgment order, this is a breach of contract case arising from the sale of night vision

20

goggle kits and lenses by Carson to ATN. In the first order, the Court granted partial

21

summary judgment to Carson on its sale to ATN of 463 goggle kits and 10 lenses in the

22

total amount of $280,795.35. Dkt. No. 81, 9/25/2015 order.

23

Now the Court considers whether it should enter summary judgment against a

24

counterclaim by ATN that it paid for but did not receive from Carson 90 goggle kits in

25

September 2010. This shipment was addressed in Carson’s first summary judgment

26

motion, ATN’s opposition, and in Carson’s motion in limine number 7 seeking to exclude

27

evidence about this shipment. Dkt. Nos. 62, 67, 84. The Court also discussed the 90-unit

28

evidence during the pretrial conference on September 30, 2015. The Court permitted ATN
Case No. 14-cv-01769-NC

1

until Friday, October 2, at 5:00 p.m. to identify admissible facts in opposition to Carson’s

2

motion in limine. Dkt. No. 89. ATN did not file a timely response, and did not seek leave

3

to file a late response.

4

Under Federal Rule of Civil Procedure 56(f)(3), the Court may consider summary

5

judgment on its own after identifying for the parties material facts that may not be

6

genuinely disputed. Here, Carson’s first summary judgment motion and motion in limine

7

number 7 gave ATN notice of the following facts. Attached to the declaration of Richard

8

J. Barrett are documents showing that on September 14, 2010, Carson shipped 90 goggle

9

kits to ATN. Dkt. No. 63-1, filed 7/24/2015. Carson submitted a packing slip (number
11031), an invoice (number 3245) for 90 goggle kits at $599.45 per unit for a total of

11
United States District Court
Northern District of California

10

$53,950.50, an accounts receivable summary for that same amount, and a record that ATN

12

paid for the shipment in full, with a payment of $53,950.50. Dkt. No. 63-1 at Exs. 5, 6.

13

ATN has not presented facts establishing a material dispute. Accordingly, the Court

14

grants summary judgment in favor of Carson on ATN’s counterclaim asserting that ATN

15

paid for but did not receive 90 goggle kits in September 2010. To be clear, this order does

16

not result in a finding of additional liability by ATN. As to the 90-unit shipment, the Court

17

finds that ATN both received and paid for the goods it ordered.

18

Finally, while ATN has not presented admissible facts to rebut summary judgment,

19

it has made repeated arguments that the evidence presented by Carson is fraudulent. Dkt.

20

Nos. 76 (notice of intent to file motion for sanctions), 95 (opposition to motion in limine),

21

99 (notice of inability to file motion for sanctions). Twice in the past 15 days ATN’s

22

counsel has provided notice that by specified times he would be filing a motion for

23

sanctions. On both occasions, he filed no motion. In the absence of a genuine factual

24

dispute, summary judgment is appropriate.

25

The Court therefore GRANTS partial summary judgment in favor of Carson and

26

against ATN on ATN’s counterclaim that it paid for but did not receive 90 goggle kits

27

referenced in invoice number 3245 in September 2010.

28

The Court will issue a separate order identifying the issues to be tried in the case.
Case No. 14-cv-01769-NC

2

1

IT IS SO ORDERED.

2
3

Dated: October 6, 2015

4

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Case No. 14-cv-01769-NC

3