Franquicias CallNet SL v. Vertecto Services LLC
MEMORANDUM. Signed by Judge Gregory M. Sleet on 8/21/2015. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FRANQUICIAS CALLNET SL,
VERTECTO SERVICES, LLC,
C.A. No. 13-459-GMS
The plaintiff, Franquicias CallNet SL ("CallNet"), filed a Complaint against Defendant
Vertecto Services, LLC ("Vertecto") on March 21, 2013. (D.I. 1.) In its Complaint, CallNet
alleges Breach of Agreement, Conversion, Breach of Fiduciary Duty, and violations of the
Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1961 et seq. (Id.) On
March 10, 2015, following completion of discovery, 1 CallNet filed a Motion for Summary
Counsel for Vertecto requested additional discovery in the body of the Answering Brief to CallNet's Motion
for Summary Judgment under Rule 56(d). (See D.I. 46 at iJ 28.) Rule 56(d) was previously numbered as 56(f) and
the court will refer to them interchangeably. Vertecto did not provide an affidavit as required by Rule 56(d). The court
need not decide the issue of constructive compliance. The Third Circuit "generally denies relief under Rule 56(f) if
the purported inadequacy of the record is attributable to the movant's own failure to take advantage of the discovery
period, rather than the other party's lack of cooperation." Bates v. Tandy Corp, 186 Fed. App'x 288, 291 (3d Cir.
The proffered reasons for Vertecto's failure to comply boil down to a strategic decision and do not amount
to a proper justification for inaction under the rules. As such, the court fmds no good cause to overlook Vertecto's
dilatory activities and re-open discovery. See Dowling v. City ofPhiladelphia, 855 F.2d 136, 139-40 (3d Cir. Aug.
26, 1988) ("This Court has interpreted Rule 56(f) as imposing a requirement that a party seeking further discovery in
response to a summary judgment motion submit an affidavit specifying, for example, what particular information is
sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.");
Koehnke v. City of McKeesport, 350 F. App'x 720, 723 (3d Cir. Oct. 28, 2009) ("A party that cannot present facts
essential to justify its opposition may-and, indeed, must-show by affidavit, how evidence of such facts would
preclude summary judgment.") (quoting Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002)); see also Kop/ove
v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986) (fmding that party's failure to conduct expert discovery within
given period imposed "obligation to provide the court with a record which affirmatively demonstrates, with specificity,
diligent efforts on his or her part and unusual circumstances which have frustrated those efforts."). Vertecto admits
Judgment pursuant to Federal Rule of Civil Procedure 56(c) (D.I. 38), asserting that Vertecto
cannot present any evidence on motion or at trial. 2 (D.I. 39 at 8.) Presently before the court is
CallNet's Motion for Summary Judgment. (D.I. 38.) For the reasons that follow, the court will
grant CallNet's motion.
CallNet is a legal entity organized and existing under the laws of the country of Spain, with
its principal place of business in Madrid, Spain. (D.I. 40, if 3.) CallNet functions as a router of
telecommunication to smaller telecommunication companies that do not have the ability to
efficiently obtain routing of calls through owners of major telecoillmunication infrastructures. (Id.,
if 4.) CallNet's customers route calls to CallNet, and CallNet then routes the calls to the
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