Charter Practices International, LLC et al v. Robb
Filing
343
ORDER denying 340 plaintiffs' motion for leave to file supplemental materials in support of their motion for summary judgment. See attached ruling. Signed by Judge Donna F. Martinez on 9/23/16. (Brierley, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHARTER PRACTICES
INTERNATIONAL, LLC, ET AL.,
Plaintiffs,
v.
JOHN M. ROBB,
Defendant.
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CASE NO. 3:12-cv-1768(RNC)
RULING ON PLAINTIFFS’ MOTION TO FILE SUPPLEMENTAL MATERIALS
Plaintiffs, Charter Practices International, LLC (“CPI”)
and Medical Management International, Inc. (“MMI”)
(collectively, “Banfield”), operate company-owned and franchised
Banfield pet hospitals.
Banfield brought this breach of
contract action against its former franchisee, veterinarian Dr.
John M. Robb (“Dr. Robb”), and Dr. Robb asserted four
counterclaims.1 (Doc. #159.)
Banfield moved for summary judgment
on Dr. Robb’s counterclaims as well as its own affirmative
breach of contract and CUTPA claims. (Doc. #225, 268.)
On March
10, 2016, I filed a recommended ruling, currently pending before
Judge Chatigny, in which I recommended that Banfield’s motion
for summary judgment be denied. (Doc. #335.)
1Dr.
Banfield now seeks
Robb’s counterclaims allege: (1) breach of contract;
(2) breach of the implied covenant of good faith and fair
dealing; (3) violation of the Connecticut Unfair Trade Practices
Act, Conn. Gen. Stat. §§ 42-110a et seq. (“CUTPA”); and (4)
negligent infliction of emotional distress.
leave to file supplemental materials in support of its motion
for summary judgment. (Doc. #340.)
For the following reasons,
the motion is DENIED.
I.
Background and Pending Motions
In its motion for summary judgment, Banfield argues that
Dr. Robb violated Connecticut law and the standard of care in
veterinary medicine by, inter alia, administering half doses of
the rabies vaccine to dogs.
Banfield asserts that this
violation amounts to a breach of the parties’ franchise
agreement, giving Banfield good cause to terminate Dr. Robb’s
franchise.
Banfield thus contends that summary judgment is
appropriate on its affirmative claim and Dr. Robb’s counterclaim
for breach of contract.
Upon review of the parties’
submissions, I concluded that there are genuine disputes of
material fact concerning Dr. Robb’s conduct and whether it
amounts to a breach of the parties’ franchise agreement.2
I
therefore recommended that summary judgment be denied.
2My
recommended ruling said:
In order for Banfield to succeed on summary judgment on
both its affirmative claim and Dr. Robb’s counterclaim
for breach of contract, the undisputed facts must
demonstrate that Dr. Robb breached the CPA, thereby
giving Banfield good cause to terminate his franchise.
The only undisputed facts about Dr. Robb’s vaccine
practice are that he administered less than the
manufacturers’ recommended dose of the rabies vaccine
(depending on a pet’s weight) and stored the remaining
dose for another pet. The parties vigorously contest
2
Banfield now asks the court to consider, in support of its
motion for summary judgment, the Connecticut Board of Veterinary
Medicine’s draft minutes of its May 4, 2016 meeting.
According
to the minutes, the Board determined that Dr. Robb violated the
standard of care while administering and delegating the
administration of the rabies vaccine at his former Banfield pet
hospital. (Doc. #340, p. 7.)
Banfield asserts that the minutes
reflect that the Board “conclusively established” that Dr. Robb
violated the standard of care.
(Doc. #340, p. 4.)
From this,
Banfield draws the conclusion that there is no factual dispute
that Dr. Robb’s violation amounts to a breach of the parties’
franchise agreement, thus giving Banfield good cause to
terminate his franchise.
It follows, in Banfield’s view, that
summary judgment should be granted.
II.
Admissibility
“The district court has broad discretion in choosing
whether to admit evidence.”
Raskin v. Wyatt Co., 125 F.3d 55,
65 (2d Cir. 1997).
the details of when and how Dr. Robb began this practice,
the exact dosage given to pets depending on their weight,
and the duration and manner in which remaining doses
were stored and reconstituted.
Because nearly every
material fact concerning Dr. Robb’s vaccine practice
remains in dispute, the court cannot determine at this
stage
whether
Banfield
properly
terminated
his
franchise.
(Doc. #335, pp. 14-15.)
3
The principles governing admissibility of evidence do
not change on a motion for summary judgment . . . . Rule
56(e) provides that affidavits in support of and against
summary judgment shall set forth such facts as would be
admissible in evidence.3
Therefore, only admissible
evidence need be considered by the trial court in ruling
on a motion for summary judgment.
Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d
244, 264 (2d Cir. 2009) (citations omitted).
“[I]n order to be admissible, evidence must be properly
authenticated—that is, there must be some ‘evidence sufficient
to support a finding that the item is what the proponent claims
it is.’ Fed.R.Evid. 901(a).”
AT Engine Controls Ltd. v.
Goodrich Pump & Engine Control Sys., Inc., No. 3:10-CV-01539
(JAM), 2014 WL 7270160, at *8 (D. Conn. Dec. 18, 2014).
Documents that are not part of the record and that were
not produced in response to disclosure or discovery must
be introduced by an authenticating affidavit or
declaration unless they are self-authenticating and
intrinsically trustworthy on their face. Documents that
are merely discussed in the moving papers or presented
without authentication will not normally be considered
by the court.
11 James Wm. Moore, et al., Moore’s Fed. Prac. § 56.92 (3d ed.
2016); see, e.g., Monroe v. Bd. of Ed. of Town of Wolcott,
Conn., 65 F.R.D. 641, 645–46 (D. Conn. 1975) (“[C]ourts may
consider certified records of administrative proceedings, [but]
3Local
Rule 56 also requires that “[e]ach statement of
material fact by a movant . . . must be followed by a specific
citation to (1) the affidavit of a witness competent to testify
as to the facts at trial and/or (2) evidence that would be
admissible at trial.” D.Conn.L.Civ.R. 56(a)(3).
4
. . .
unverified documents and transcripts that have not been
made a part of a pleading cannot be considered in ruling on a
motion for summary judgment.”).
Banfield offers the minutes by simply attaching a copy to
its motion.
The minutes are not self-authenticating and
Banfield provides no evidence to authenticate them.
Banfield
states, without elaboration, that “[t]here is nothing
speculative or unreliable about the Board’s unanimous decision
after months of hearings.
The draft minutes are simply a
recording of what occurred at the meeting.” (Doc. #342, p. 5.)
This statement is insufficient to establish admissibility.
III.
Issue Preclusion
More to the point, however, is that the draft minutes do
not prove that Dr. Robb violated the standard of care.
With
little briefing and no analysis, Banfield alludes to the
doctrine of collateral estoppel, baldly declaring that because
the minutes “conclusively establish[]” that Dr. Robb violated
the standard of care, the court “must necessarily conclude that
Plaintiffs were within their rights to terminate [Dr. Robb’s]
franchise” and, consequently, should enter summary judgment for
Banfield.
(Doc. #340, p. 4.)
Banfield is incorrect.
Under the doctrine of collateral estoppel, also known as
issue preclusion,
5
when an issue of ultimate fact has once been determined
by a valid and final judgment, that issue cannot again
be litigated between the same parties in any future
lawsuit . . . . Generally, for collateral estoppel to
apply, four prerequisites must be satisfied: (1) the
issues in both proceedings must be identical; (2) the
issue must have been actually litigated and actually
decided in the prior proceeding; (3) there must have been
a full and fair opportunity to litigate the issue in the
prior proceeding; and (4) the resolution of the issue
must have been necessary to support a valid and final
judgment on the merits.
United States v. U.S. Currency in Amount of $119,984.00, More or
Less, 304 F.3d 165, 172 (2d Cir. 2002) (citations omitted).
Banfield falls far short of meeting even the most
fundamental prerequisite of issue preclusion--a prior final
judgment on the merits.
Even assuming their authenticity, the
heading of the minutes reveals that they “are draft minutes
which are subject to revision and which have not yet been
adopted by the Board.” (Doc. #340, p. 6.)
do not constitute a final decision.
The minutes plainly
See, e.g., Klein v.
Goetzmann, 770 F. Supp. 78, 80 (N.D.N.Y. 1991) (finding
collateral estoppel to be inapplicable where “there has been no
final judgment to which collateral estoppel could be attached”).
As such, Banfield’s argument is meritless.
IV.
Conclusion
For these reasons, Banfield’s motion for leave to file
supplemental materials (doc. #340) is DENIED and my recommended
6
ruling (doc. #335) denying Banfield’s motion for summary
judgment remains unchanged.
SO ORDERED at Hartford, Connecticut this 23rd day of
September, 2016.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge
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