Animal Hospital of Nashua, Inc. v. Antech Diagnostics et al

Filing 58

ORDER denying without prejudice 40 AHN's motion for summary judgment; denying without prejudice 41 AHN's motion for summary judgment; denying as moot 45 Antech's motion to strike; and granting 46 Antech's motion for relief under Fed. R. Civ. P. 56(d). So Ordered by Judge Steven J. McAuliffe.(lat) Modified on 9/10/2012 to remove slashes (vln).

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Animal Hospital of Nashua, Inc.,
Plaintiff
v.

Case No. 11-cv-448-SM
Opinion No. 2012 DNH 157

Antech Diagnostics and
Sound-Eklin,
Defendants
O R D E R
The motion of Defendant/Counterclaim Plaintiff, Antech
Diagnostics (“Antech”), for relief under Fed. R. Civ. P. 56(d),
document no. 46, is granted.

On June 28, 2012, four months before the discovery cut-off
date of November 5, 2012, Plaintiffs/Counterclaim Defendants,
Animal Hospital of Nashua and Dr. Leo Bishop (collectively
“AHN”), filed motions for summary judgment (doc. nos. 40 and 41)
on Antech’s counterclaims for breach of contract, breach of the
covenant of good faith and fair dealing, and unjust enrichment.
Antech requests that the court deny or defer ruling on AHN’s
summary judgment motions until after the discovery cut-off date,
or, more specifically, until after it has deposed AHN’s corporate
designees and its principal, Dr. Bishop.
56(d).

See Fed. R. Civ. P.

To secure the relief it seeks, Antech must first demonstrate
that it has been “‘diligent in pursuing discovery before the
summary judgment initiative surfaced.’”

Estate of Kenney v.

Floyd, 2012 WL 642810, at *5 (D.N.H. Feb. 28, 2012) (Barbadoro,
J.) (quoting C.B. Trucking, Inc. v. Waste Mgmt. Inc., 137 F.3d
41, 44 (1st Cir. 1998)).

The court finds that Antech has met

this requirement.

In April 2012, in an effort to “focus[…] their efforts on
resolving discovery disputes,” the parties agreed to postpone
depositions that Antech had noticed for April 2012.
doc no. 46-2, ¶ 8.

Lamkin Aff.,

On April 30, 2012, the parties jointly filed

a motion to extend the discovery cut-off date from June to
November, 2012.

In their motion, they represented to the court

that both sides “have been diligently pursuing discovery.”
no. 34, pg. 1.

Doc.

On May 1, 2012, the court granted the motion and

reset the discovery cut-off date to November 5, 2012, the
deadline for filing summary judgment motions to March 29, 2013,
and the trial date to July 23, 2013.

On June 28, 2012, at a time

when “neither party [had yet] taken any depositions,” id. par. 6
(emphasis added), AHN filed its motions for summary judgment.
Given these circumstances, the court rejects AHN’s assertion that
Antech has not been diligent in seeking the depositions of AHN’s
corporate designees and principal.

2

In addition to showing that it has diligently pursued
discovery, Antech has also identified “‘material evidence that it
[is] likely to uncover if it [were] given additional time to
conduct discovery.’”

Estate of Kenney, 2012 WL 642810, at *5

(quoting C.B. Trucking, 137 F.3d at 45).

Specifically, Antech

proposes that the depositions of Dr. Bishop and AHN’s corporate
designees will uncover extrinsic evidence of the circumstances of
the negotiations and the deponents’ intentions and understandings
of the negotiated terms.

Such evidence meets Rule 56(d)’s “necessarily low”
“threshold of materiality.”

Resolution Trust Corp. v. North

Bridge Assoc., 22 F.3d 1198, 1207 (1st Cir. 1994).

In its

summary judgment motions, AHN asserts that the agreements are
unambiguous, but it also advances fallback arguments in the event
the court finds the agreements to be ambiguous.

AHN also asserts

that Dr. Bishop “did not intend to bind himself personally to the
agreements.”

Bishop Motion for Summary Judgment, Doc. no. 40-1,

pg. 7 (citing Bishop Aff., ¶ 6).

Because AHN has explicitly

raised the issue of possible contract ambiguity and the question
of Dr. Bishop’s intent, the extrinsic evidence Antech seeks —
that is, evidence relating to the circumstances of the
negotiations and the deponents’ intentions — is likely material
to Antech’s defense against the summary judgment motions.

3

Although ANH disputes the legal significance of the extrinsic
evidence Antech seeks to discover, a “lack of materiality is not
apparent.”

Resolution Trust, 22 F.3d at 1208.

The court,

therefore, will “err, if at all, on the side of liberality.”

Id.

Accordingly, because Antech has satisfied the requirements
for relief under Rule 56(d), its motion (doc. no. 46), is
granted.

AHN’s motions for summary judgment (doc. nos. 40 and

41) are denied without prejudice to re-filing after the close of
discovery.

Antech’s motion to strike portions of the affidavit

and exhibits attached to AHN’s motion for summary judgment (doc.
no. 45) is denied as moot.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 10, 2012
cc:

Julie B. Brennan, Esq.
Adam J. Chandler, Esq.
Brian H. Lamkin, Esq.
Christopher T. Vrountas, Esq.

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