Asphalt Paving Systems, Inc. v. Blacklidge Emulsions, Inc.

Filing 18

ORDERED: Plaintiff's Motion for Partial Summary Judgment 12 is DENIED, without prejudice, as it is premature. Defendant's Motion to Continue and/or Deny Plaintiff's Motion for Summary Judgment Pursuant to F.R.C.P. 56(d) 14 is GRANTED. Signed by Judge Charlene Edwards Honeywell on 1/7/2022. (CSS)

Case 8:21-cv-02189-CEH-CPT Document 18 Filed 01/07/22 Page 1 of 4 PageID 172

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ASPHALT PAVING SYSTEMS, INC.,
Plaintiff,
v.

Case No: 8:21-cv-2189-CEH-CPT

BLACKLIDGE EMULSIONS, INC.,
Defendant.
___________________________________/

ORDER
This matter comes before the Court upon Plaintiff Asphalt Paving Systems,
Inc.'s Motion for Partial Summary Judgment (Doc. 12), Defendant’s Motion to
Continue and/or Deny Plaintiff’s Motion for Summary Judgment Pursuant to
F.R.C.P. 56(d) (Doc. 14), and Plaintiff’s Response to Defendant’s Motion to Continue
and/or Deny Plaintiff’s Motion for Summary Judgment (Doc. 17). Plaintiff moves for
partial summary judgment as to liability on its breach of contract claim against
Defendant Blacklidge Emulsions, Inc. Defendant moves the Court to continue the
motion for summary judgment or deny it to allow Defendant to conduct discovery.
The Court, having considered the motions and being fully advised in the premises, will
deny the motion for summary judgment, without prejudice, as it is premature.
Plaintiff filed this action against Defendant on September 15, 2021. [Doc. 1].
The amended complaint, filed on October 5, 2021, asserts claims against Defendant
for breach of contract, breach of the covenant of good faith and fair dealing, and

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promissory estoppel, arising from Defendant’s termination of an agreement pursuant
to which Plaintiff would manufacture road maintenance products for Defendant using
Defendant’s formulas. [Doc. 9]. Defendant filed its answer and affirmative defenses
on November 19, 2021. [Doc. 10]. Plaintiff moved for partial summary judgment, on
December 1, 2021, arguing that there is no dispute that Defendant materially breached
the contract by unilaterally repudiating it without cause. [Doc. 12 at pp. 9-11]. The
motion is supported by a declaration from Plaintiff’s Vice-President, Ken Messina,
dated December 1, 2021—the same day Plaintiff filed its motion. [Doc. 12-1].
“Unless a different time is set by local rule or the court orders otherwise, a party
may file a motion for summary judgment at any time until 30 days after the close of
all discovery.” Fed. R. Civ. P. 56(b). Summary judgment is appropriate when the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, show there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of
stating the basis for its motion and identifying those portions of the record
demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at
323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). That
burden can be discharged if the moving party can show the court that there is “an
absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325.
After a party moves for summary judgment, the non-movant “bears the burden of

2

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calling to the district court's attention any outstanding discovery.” Cowan v. J.C. Penney
Co., 790 F.2d 1529, 1530 (11th Cir. 1986).
But if the court is convinced that discovery is inadequate, it should deny
summary judgment. See Blumel v. Mylander, 919 F. Supp. 423, 428 (M.D. Fla. 1996).
As Rule 56 implies, district courts should not grant summary judgment until the nonmovant “has had an adequate opportunity for discovery.” Snook v. Trust Co. of Ga.
Bank, 859 F.2d 865, 870 (11th Cir. 1988); see also McCallum v. City of Athens, 976 F.2d
649, 650 n.1 (11th Cir. 1992) (noting that a party may move for summary judgment
only after exchanging “appropriate” discovery). Indeed, “[t]he whole purpose of
discovery in a case in which a motion for summary judgment is filed is to give the
opposing party an opportunity to discover as many facts as are available and he
considers essential to enable him to determine whether he can honestly file opposing
affidavits.” Blumel, 919 F. Supp. at 428 (quoting Parrish v. Bd. of Comm'r of the Ala. State
Bar, 533 F.2d 942, 948 (5th Cir. 1976)). The Court must be fair to both parties, which
means it must allow for an adequate record prior to considering a motion for summary
judgment. Id.
Plaintiff filed its motion for summary judgment within two months of filing the
amended complaint and just over a week after Defendant filed its answer. The parties
have not yet filed a case management report, which is due within forty days after any
defendant appears in an action. And the parties have not engaged in any form of
discovery, except that Plaintiff provided its Rule 26 disclosures on December 1, 2021.
Without the taking of discovery in this case, other than the production of Plaintiff’s
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Case 8:21-cv-02189-CEH-CPT Document 18 Filed 01/07/22 Page 4 of 4 PageID 175

Rule 26 disclosures, the Court finds that summary judgment is premature. Smith v.
Fla.

Dep't

of

Corr.,

713

F.3d

1059,

1064

(11th

Cir.

2013) (“Summary judgment is premature when a party is not provided a reasonable
opportunity to discover information essential to his opposition.”). As the Eleventh
Circuit

has

noted,

a premature decision

on summary judgment impermissibly

deprives the opposing party of its right to utilize the discovery process to discover the
facts necessary to justify its opposition to the motion. Vining v. Runyon, 99 F.3d 1056,
1058 (11th Cir. 1996).
Accordingly, it is hereby ORDERED:
1. Plaintiff's Motion for Partial Summary Judgment (Doc. 12) is DENIED,
without prejudice, as it is premature.
2. Defendant’s Motion to Continue and/or Deny Plaintiff’s Motion for
Summary Judgment Pursuant to F.R.C.P. 56(d) (Doc. 14) is
GRANTED.
DONE AND ORDERED in Tampa, Florida on January 7, 2022.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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