Plastic Suppliers, Inc. v. Cenveo, Inc.

Filing 118

ORDER granting Pltf's 75 Motion for Partial Summary Judgment on the issue of liability on the breach of contract claim; denying Deft's 91 Motion to Strike ; Deft's 109 motion to file supplemental materials in support of its oppos ition to the motion for summary judgment is granted, the motion pursuant to Rule 56(d) is denied; Deft's 114 motion for leave to amend is denied without prejudice, the motion to defer a ruling on Pltf's motion is denied; and the motion to file an interlocutory appeal is denied. Signed by Senior Judge Thomas J. McAvoy on 9/26/11. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------PLASTIC SUPPLIERS, INC,
Plaintiff,
v.

3:10-cv-512

CENVEO, INC,
Defendant.
-------------------------------Plaintiff Plastic Suppliers, Inc. commenced the instant action against Defendant
Cenveo, Inc. asserting a claim for breach of contract. Presently before the Court is Plaintiff’s
motion for partial summary judgment pursuant to Fed. R. Civ. P. 56 on the issue of liability.
I.

BACKGROUND
Defendant Cenveo manufactures envelopes that utilize plastic window films

(“PWF”). Plaintiff Plastic Suppliers is a manufacturer and distributor of PWF. In the summer
of 2009, the parties began discussing an agreement whereby Defendant would purchase
PWF from Plaintiff. Beginning in August 2009, Defendant made purchases of PWF and
used the products in production at its plants. From August 2009 through mid-November
2009, Defendant experienced some success with Plaintiff’s PWF. Defendant also
experienced some problems with the PWF. Some of the problems included cutting issues
(the film was difficult to consistently cut), breaking/tearing issues (the PWF would break in
the middle of a run); and speed issues (the PWF was difficult to run on Defendant’s
machines at higher speeds).
On November 16, 2009, Defendant executed a written Supply Agreement (the
“Agreement”) with Plaintiff. According to the terms of that Agreement, Defendant

shall, beginning on the Effective Date through December 31, 2010, purchase from
[Plaintiff], eighty percent (80%) of all of [Defendant’s] requirements for the
Products, subject to the terms and conditions of this Agreement. Beginning
January 1, 2011, through the remainder of the Term (defined below) of this
Agreement, purchase from Supplier ninety-eight percent (98%) of all of Purchaser’s
requirements for the Products, subject to the terms and conditions of this
Agreement. . . .
Section 4 and Exhibit A contained, among other things, the parties’ agreed upon warranties
and remedies in the event of non-conforming goods.1 Exhibit A of the Agreement provided
as follows:
Seller warrants to Buyer that the products referenced on the front of this invoice
(the “Products”), when shipped by Seller, will meet Seller’s applicable published
specifications. Buyer shall be solely responsible for determining the suitability for
use of the Products and Seller shall in no event be liable in this respect. Seller’s
obligations and liabilities hereunder shall not be enforceable until title to the
Products has passed pursuant to the provisions hereof. No Products may be
returned without the prior written approval of Seller after a determination by Seller
that the Products fail to meet Seller’s applicable published specifications. Seller
shall, at its own expense, repair or replace any Products it determines do not
conform to its published specifications, provided Buyer notifies Seller of the failure
to conform in writing with the time period set forth below in the paragraph entitled
CLAIMS. THE FOREGOING OBLIGATIONS ARE IN LIEU OF ALL OTHER
OBLIGATIONS AND LIABILITY OF SELLER RESPECTING THIS INVOICE OR
THE PRODUCTS INCLUDING ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OR MERCHANTABILITY OF FITNESS
FOR PARTICULAR APPLICATIONS OR PURPOSES WHICH ARE ESPRESSLY
[sic] DISCLAIMED.
The “Claims” provision of the Agreement provided as follows:
Within thirty (30) days after tender of delivery to Buyer of any shipment and before
any portion of the Products (except for reasonable test and inspection quantities)
has been changed from its original condition, Buyer shall inform Seller in writing if
any Products are believed to be defective or otherwise believed not to conform with
Buyer’s order. Any claims not made within such period of time shall be waived, and
Buyer shall be deemed to have accepted Seller’s shipment of Products. The
weights, volumes, sizes and fares set forth in this Invoice shall govern in the event
1

D efendant contends that it signed the Agreem ent based on Plaintiff’s representations and
prom ises that the PW F w ould w ork for D efendant, that there w ould be certain im provem ents at C enveo’s
plants, and that Plaintiff w ould change the blend (i.e. com position) of the film .
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of a dispute unless proved erroneous. Material varying not more than ten percent
(10%) in weight, quantity, size, width, thickness or length shall be deemed to be in
compliance with this Invoice.
Section 4 of the Agreement also provided, in part, that:
The Products are subject to the standard limited warranted, if any, contained in
Suppliers’ Standard Terms. PURCHASER’S AND AGENT’S EXCLUSIVE
REMEDY, AND SUPPLIER’S SOLE OBLIGATION, WITH RESPECT TO A
BREACH OF THE FOREGOING WARRANTY, IS TO HAVE THE DEFECTIVE
PRODUCE REPAIRED OR REPLACED. AS A CONDITION PRECEDENT TO
SUCH REMEDY, PRIOR TO RETURNING ANY ALLEGEDLY DEFECTIVE
PRODUCTS, PURCHASER OR AGENT, AS APPLICABLE, MUST OBTAIN FROM
SUPPLIER’S AUTHORIZED REPRESENTATIVE WITHIN SIX (6) MONTHS OF
THE DATE OF PURCHASE A RETURN AUTHORIZATION. WITH THE
EXCEPTION OF THE FOREGOING WARRANTY, SUPPLIER MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS,
AND SPECIFICALLY DISCLAIMS ALL WARRANTING IMPLIED AT LAW
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
Between September 2009 and March 2010, Defendant purchased approximately
2,507,077 pounds of PWF from Plaintiff. Plaintiff contends, and Defendant disputes, that
every shipment of PWF met or exceeded Plaintiff’s published specifications. While
Defendant experienced some success in using Plaintiff’s PWF, from November 16, 2009 to
February 5, 2010, Defendant made some complaints about the shipments. Defendant’s
complaints were not stated in terms of failure to meet published specifications, but did
identify various problems with the film. Defendant encountered continuous difficulties using
Plaintiff’s PWF.
Film was purchased from Plaintiff for several months through January 2010. In
January 27, 2010, Defendant advised Plaintiff that it was using a competitor’s film until
Plaintiff could resolve its performance and quality issues. In February 2010, Defendant re-

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signed a Supply Agreement with terms that, for purposes of the instant motion, are identical
to the original Agreement. Thereafter, the number of orders placed by Defendant decreased.
Plaintiff then commenced the instant action asserting claims of breach of contract
and breach of the covenant of good faith and fair dealing. Plaintiff previously moved for
summary judgment on the issue of whether the parties entered into an enforceable
agreement. The Court held that the Agreement was enforceable. Currently before the Court
is Plaintiff’s motion for summary judgment on Defendant’s liability for breach of contract.
II.

DISCUSSION
Plaintiff moves for summary judgment claiming that Defendant breached the

Agreement by failing to purchase the requisite amounts of Plaintiff’s PWF as specified in the
Agreement. Defendant opposes the motion on the grounds that: (1) Plaintiff did not
adequately test the PWF to ensure it met published specifications; (2) the PWF supplied by
Plaintiff did not meet those specifications; (3) Defendant demanded adequate assurances of
performance, which Plaintiff refused; (4) the remedies under the Agreement failed their
essential purpose; (5) Defendant adequately reported non-confirming goods to Plaintiff; and
(6) Defendant properly terminated the Agreement.
Before addressing the specific arguments raised by the parties, it is helpful to set
out the warranty process under the Agreement:
(i) Plaintiff warranted that the PWF would meet its own published specifications;
(ii) Defendant was solely responsible for determining the suitability for use of the
PWF;
(iii) within thirty days after tender of delivery, Defendant had to inform Plaintiff in
writing if any PWF was believed to be defective;
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(iv) Defendant could not return any PWF unless: (a) Plaintiff determined that the
PWF failed to meet published specifications; and (b) upon such a finding, Plaintiff
provided written approval; and
(v) Seller would repair or replace any PWF that it determined did not conform with
its published specifications.
With this process in mind, the Court will now address the parties’ arguments, using the
familiar summary judgment standard.2
a.

Whether Defendant Purchased the Requisite Quantities of PWF from
Plaintiff

Plaintiff moves for summary judgment on the ground that Defendant did not
purchase the contractually agreed to amounts of PWF. Pursuant to the plain terms of the
Agreement, Defendant was required to purchase certain percentages of its requirements
from Plaintiff. There is no dispute that Defendant did not purchase the requisite percentages
of its PWF requirements from Plaintiff. Thus, absent proper justification for nonperformance, Defendant is in breach of the contract.
b.

Whether Plaintiff Properly Tested the PWF Prior to Shipping

Defendant first argues that its non-performance was excused because Plaintiff did
not properly test the PWF prior to shipping to ensure that it met the published specifications.
This argument must be rejected because the Agreement did not obligate Plaintiff to test the
PWF prior to shipping. Rather, Plaintiff warranted that the product shipped would meet
certain specifications. In the event the PWF did not meet those specifications, Defendant

2

See Pilatich v. Tow n of N ew Baltim ore, 2011 W L 9192 (N.D .N .Y. 2011), w herein this C ourt set
out the standard of review on a sum m ary judgm ent m otion.
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could avail itself of the remedies set forth in the Agreement, including affording Plaintiff an
opportunity to cure.
Relatedly, Defendant contends that Plaintiff should be estopped from asserting a
breach of contract claim because it acted in bad faith in failing to ensure that the film met the
required specifications. “Under New York law, the party asserting estoppel must show that
the party alleged to be estopped (1) engaged in conduct which amounts to a false
representation or concealment of material facts; (2) intended that such conduct would be
acted upon by the other party; and (3) knew the real facts.” Readco, Inc. v. Marine Midland
Bank, 81 F.3d 295, 301 (2d Cir. 1996). Defendant also must show that it (1) lacked
knowledge of the true facts; (2) relied on Plaintiff’s conduct; and (3) changed its position to its
prejudice. Id.
Defendant cannot avail itself of estoppel because there is an insufficient showing
that Plaintiff concealed any material facts, that Defendant lacked knowledge of the true facts,
or that Defendant reasonably relied on Plaintiff’s conduct. The parties had been conducting
business prior to entering into the subject Agreements. Defendant was aware of some of (if
not all) the problems it was having using Plaintiff’s PWF prior to entering into the original
agreement. Further, under the Agreement, after Plaintiff shipped the PWF, Defendant had
the opportunity to test the PWF to ensure whether to met the requisite specifications. If the
PWF did not meet the specifications, the parties’ Agreement set forth the available remedies
and procedures to obtain those remedies. Moreover, by the time Defendant signed the
second agreement, it was well aware of all the problems it was experiencing with the PWF.
For similar reasons, it is not a defense to this action that Plaintiff may have shipped
non-confirming goods. If Defendant received non-conforming good, it had a remedy
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available under the Agreement. It also is difficult to conceive how Plaintiff’s failure to test the
PWF prior to each shipment constitutes a breach of the covenant of good faith and fair
dealing. Again, if Defendant believed any shipment to be non-conforming, it had a remedy
available to it under the Agreement. In any event, it is undisputed that Plaintiff did test the
PWF rolls, albeit Defendant disagrees with the methods Plaintiff used to test the rolls.
c.

Whether Plaintiff Shipped Non-Conforming Goods

Defendant next contends that Plaintiff did not ship PWF that met its published
specifications. This issue is at the crux of this case. Absent sufficient evidence upon which
a fair minded trier of fact could reasonably conclude that the PWF did not meet Plaintiff’s
published specifications, the remaining issues (including who had the burden of testing the
PWF, whether Defendant properly informed Plaintiff of its belief that the goods were nonconforming, whether Plaintiff properly responded to Defendant’s complaints, whether
Defendant terminated the contract, etc.) are essentially moot.
The record is replete with instances of Defendant having problems using Plaintiff’s
PWF on its machines, Defendant informing Plaintiff of these problems, and Plaintiff
attempting to assist Defendant in correcting the problems. These problems were ongoing
during the course of the parties’ relationship, including before the time they entered into the
subject agreements and by the time they entered into the second agreement in February.
Whether Plaintiff’s PWF worked on Defendant’s machines is not, however, the relevant
inquiry. The Agreement specifically provided that “[b]uyer shall be solely responsible for
determining the suitability for use of the Products and Seller shall in no event be liable in this

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respect.”3 The issue is whether Plaintiff provided product that did not conform to its
published specifications.
In its statement of material facts at paragraph 20, Plaintiff states that “[e]very
shipment of plastic film sold by Plastic Suppliers to Cenveo, pursuant to the Supply
Agreement, met or exceeded Plastic Suppliers’ published specifications.” This statement
was supported by the affidavit of Edward Tweed, Plaintiff’s Vice President of Technology,
who states that Plaintiff’s computer system tests each master roll of PWF for thickness, haze
and gloss and that if any master roll fails to meet specifications, it is rejected and not shipped
to a customer. Tweed also states that, in accordance with industry standards, peak tensile
strength is measured on one master roll for every ten tons of film manufactured. Tweed
further states that “if the thickness meets specifications then the tensile strength should also
meet specifications.” Tweed attested that every shipment of plastic film to Defendant met or
exceeded Plaintiff’s specifications. This is sufficient to sustain Plaintiff’s burden on the
motion that it shipped conforming goods.4
“[O]n a motion for summary judgment a party must lay bare its proof in order to
raise a genuine issue of fact; it cannot simply rest on allegations.” ESPN, Inc. v. Quiksilver,
Inc., 586 F. Supp.2d 219, 228 (S.D.N.Y. 2008); Longi v. County of Suffolk, 2008 WL 858997,
at *6 (E.D.N.Y. 2008). A party that “does not lay bare all [its] proof in opposition to [a motion
for summary judgment] runs the risk that summary judgment will be granted.” Richard M.
Morris v. State of New York, 1995 WL 155952, at *3 (N.D.N.Y. 1995).

3

Even if Plaintiff m ade representations to D efendant that its PW F w ould w ork on D efendant’s
m achines, the plain term s of the Agreem ent disclaim any such representation.
4

Tw eed’s deposition testim ony substantiates the statem ents in his affidavit.
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In response to paragraph 20 of Plaintiff’s statement of material facts, Defendant
denied Plaintiff’s assertion claiming that Plaintiff did not adequately test the film prior to
shipping, Plaintiff never tested the film after Defendant complained about it, and Defendant’s
experts have determined that the film did not meet the published specifications. Absent from
Defendant’s response is a “specific citation to the record where the factual issue arises.”
N.D.N.Y.L.R. 7.1(a)(3). Under this Court’s local rules, the failure to support the denial with a
record citation is deemed an admission of the asserted fact and the Court is not obligated to
parse the record in an attempt to substantiate Defendant’s denial. See Rule 7.1(a)(3); Fed.
R. Civ. P. 56(c)(1) and 56(e)(2); New York State Teamsters Conference Pension and
Retirement Fund v. Express Services, Inc., 426 F.3d 640, 648-49 (2d Cir. 2005); Amnesty
America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002); Bronner v. Catholic
Charities of Roman Catholic Diocese of Syracuse, Inc., 2010 WL 981959, at *1 (N.D.N.Y.
March 15, 2010). Accordingly, Defendant is deemed to have admitted that all shipments met
Plaintiff’s specifications.
Even without the operation of this local rule, Defendant has failed to raise a triable
issue of fact whether the PWF met Plaintiff’s published specifications. Under the Agreement,
Defendant had the ability to test the PWF to determine whether it conformed to Plaintiff’s
published specifications. Defendant concedes that it was required to notify Plaintiff in writing
of any failure of the film to conform to the published specifications. Def.’s Stmnt. of Mat.
Facts at ¶ 60. Defendant further admits it never complained of Plaintiff’s PWF in terms of the
published specifications.
Moreover, Defendant submitted two expert reports concerning Plaintiff’s PWF.
One of Defendant’s experts conducted various tests, identified various deficiencies in
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Plaintiff’s product, and concluded that Plaintiff’s PWF is inferior to another manufacturer’s
plastic film product. Defendant’s other expert concluded that Plaintiff’s PWF is structurally
weak, inconsistent, and contains gauge variances outside the range of acceptable runability.
Notwithstanding these conclusions, neither of Defendant’s experts states in his report or in
an affidavit that Plaintiff’s PWF did not conform to its published specifications. In fact,
neither expert even discusses Plaintiff’s specifications. If Defendant had proof that Plaintiff’s
film did not meet particular specifications, it should have pointed the Court to such evidence.
At oral argument, the Court specifically asked the parties to point to where in the
record there was evidence suggesting that Plaintiff’s PWF did not conform to the published
specifications. Defendant cited various portions of deposition testimony, which the Court has
reviewed. Those excerpts demonstrate that variances in gauge band could affect cutting and
that it was possible that the problems Defendant was experiencing could have had to do with
the film rather than the machines. What this testimony does not establish is that any gauge
band variances or other problems with the film suggested that the film did not meet the
published specifications. Thus, while a trier of fact could reasonably conclude that there
were problems with Plaintiff’s PWF and, perhaps, that it was an inferior product, there is
insufficient evidence in the record upon which a lay trier of fact could reasonably conclude
that the problems Defendant experienced meant that the film did not meet Plaintiff’s
specifications. Accordingly, even assuming Plaintiff failed to test the film to see whether it
met specifications, Plaintiff used improper methods to test the film, or Plaintiff refused to test

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the film after receiving Defendant’s complaints,5 there is insufficient evidence in the record to
create a triable issue of fact that the film did not meet the specifications.
d.

Whether Defendant Demanded Adequate Assurances

Defendant next claims that it was entitled to cease performance because it
demanded, and did not receive, adequate assurances that Plaintiff would provide conforming
goods. Under section 2-609 of the U.C.C., “[w]hen reasonable grounds for insecurity arise
with respect to the performance of either party the other may in writing demand adequate
assurance of due performance and until he receives such assurance may if commercially
reasonable suspend any performance for which he has not already received the agreed
return.” What is “reasonable grounds for insecurity” is determined in accordance with
commercial standards. UCC 2-609(2); see also BAII Banking Corp. v. UPG. Inc., 985 F.2d
685, 702 (2d Cir. 1993).
The receipt of non-confirming goods can give rise to a reasonable ground for
insecurity. Federated Retail Holdings, Inc. v. Sanidown, Inc., 2009 WL 4927560, at *4
(S.D.N.Y. 2009). Here, there is evidence in the record that Defendant experienced problems
with cutting, static, tensile strength, thickness variations, and “material inconsistencies” that
“impact[ed] all of [Defendant’s] equipment. . . .” Defendant also complained of “variability in
[the] manufacturing process.” These problems made Defendant “hesitant to reorder [from]
Plastic Suppliers.” Thus, Defendant did have some cause to be concerned about the quality
of the product it was receiving. However, as discussed, there is insufficient evidence that the
PWF failed to meet the published specifications. By continuing to supply conforming goods

5

There is deposition testim ony suggesting that Plaintiff did do som e testing on the film once it
w as alerted to the problem s Defendant w as having. See Bow er D ep. at 162.
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and working with Defendant to resolve the problems, Plaintiff fulfilled its obligation to provide
reasonable assurances.
Moreover, U.C.C. § 1-102 states that “the effect of provisions of this Act may be
varied by agreement, except as otherwise provided in this Act. . . .” U.C.C. § 1–102(3).
Section 6 of the parties’ Agreement acts to vary the provisions of § 2-609. See Bausch &
Lomb, Inc. v. Bressler, 977 F.2d 720, 727 (2d Cur. 1992). That section limits the ability of an
aggrieved party to terminate the Agreement by providing that, upon the occurrence of a
material breach, the aggrieved party could cancel the Agreement only by “giving written
notice of termination to the other” and allowing the breaching party 90 days thereafter to
effectuate a cure. “‘Under New York law, . . . [w]here the contract specifies conditions
precedent to the right of cancellation, the conditions must be complied with.’” Bausch &
Lomb, 977 F.2d at 727 (quoting Consumers Power Co. v Nuclear Fuel Servs., Inc., 509 F.
Supp. 201, 211 (W.D.N.Y. 1981)). Here, there is insufficient evidence in the record that
Defendant sent a written notice of termination as required by the Agreement or that
Defendant afforded Plaintiff ninety days to cure.
Defendant claims that its March 2010 e-mail constituted a notice of termination.
This e-mail complained of ongoing quality issues, requested that Plaintiff supply a new
product, and stated that Defendant “remains committed to the partnership with [Plaintiff], and
we will see this process through to the end, at which point we either move forward with our
supply agreement or agree that the partnership must end.” This letter cannot reasonably be
interpreted as written notice that Defendant was terminating the agreement due to a material
breach by Plaintiff. Even assuming the March e-mail qualified as a notice of termination,

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Plaintiff had ninety days to effectuate a cure. Defendant, however, ceased performing its
obligations under the contract prior to the expiration of the ninety day right to cure period.
e.

Whether the Remedy Failed of Its Essential Purpose

Defendant next argues that summary judgment is inappropriate because the “repair
or replace” warranty failed of its essential purpose, thereby allowing it to pursue other
remedies. This argument is made under § 2-719(2) of the UCC which allows for additional
remedies other than as provided for in the contract if an exclusive or limited remedy fails of
its essential purpose. This section exists to ensure that there be at least a fair quantum of
remedy for breach of the obligations or duties outlined in the contract. Thus, “where an
apparently fair and reasonable clause in a contract because of circumstances fails in its
purpose or operates to deprive either party of the substantial value of the bargain, it must
give way to the general remedy provisions of” Article 2 of the U.C.C. Official Comment to
UCC § 2-719.
This argument must be rejected because, as discussed, Defendant has not
demonstrated a triable issue of fact whether Plaintiff supplied goods that failed to meet its
published specifications. Without evidence of non-conforming goods, the repair or replace
provisions did not come into play and cannot be said that the remedy clauses failed in their
essential purpose.
f.

Whether Defendant Properly Reported Non-Conformance Under the
Agreement and/or Properly Terminated the Contract

Defendant next claims that it properly notified Plaintiff of non-confirming goods and
properly terminated the contract. For the reasons previously discussed, Defendant’s failure

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to demonstrate a triable issue of fact whether the PWF conformed to the published
specifications renders this issue moot.
g.

Defendant’s Motion to Strike

Defendant moves to preclude documents concerning Plaintiff’s internal testing that
were submitted in support of Plaintiff’s motion for summary judgment on the ground that
Plaintiff did not earlier disclose those documents during the discovery process. It appears
that Plaintiff did not promptly disclose these documents in response to Defendant’s requests,
which failure cannot be condoned. However, the Court does not find that preclusion is
warranted because: (1) the documents were provided before relevant depositions were
conducted; (2) Defendant had time to conduct the relevant depositions before responding to
the motion for summary judgment; (3) Defendant’s expert had the opportunity to inspect and
observe Plaintiff’s testing procedures prior to responding to the summary judgment motion;
(4) Defendant received an extension of time to file papers in opposition to the motion for
summary judgment; (5) even without the actual test result data, Plaintiff’s motion for
summary judgment was properly supported by the affidavit of Edward Tweed who attested
that the film was tested and met the specifications before being shipped; and (6) Defendant
had the opportunity to test the film itself and has not submitted evidence showing that the film
failed to conform to Plaintiff’s specifications. Accordingly, the Court denies the motion to
strike, but notes that, based on the deposition testimony of Tweed and Bower, the decision
on the motion for summary judgment would have been the same even if the data results had
been precluded.

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h.

Defendant’s Motion for Leave to File a Supplemental Brief

Defendant also moves for leave to file a supplemental brief on the ground that it
obtained new evidence that another of Plaintiff’s customers experienced problems identical
to those experienced by Defendant. The motion is granted. However, this evidence is not
relevant. The Court has little doubt that Defendant and Continental experienced significant
problems using Plaintiff’s PWF on its machines. What is missing, either from Plaintiff or
Continental, is sufficient evidence upon which a trier of fact could reasonably conclude that
Plaintiff’s PWF did not meet its published specifications.
i.

Defendant’s Request Under Rule 56(d)

Defendant moves under Rule 56(d) requesting that the Court deny the motion for
summary judgment pending the completion of additional discovery. In particular, Defendant
seeks to obtain evidence from other of Plaintiff’s customers concerning problems they had
with Plaintiff’s PWF. As just discussed, whether Defendant or other customers experienced
problems is not at issue. Because Defendant has not created a triable issue of fact on
whether the goods it received failed to meet specifications, the Court sees no reason to deny
summary judgment under Rule 56(d).
j.

Motion to Amend

By letter dated September 22, 2011, Defendant moves to file an amended answer
asserting a fraud in the inducement defense. That motion is denied with leave to renew for
failure to comply with N.D.N.Y.L.R. 7.1(a)(4).
k.

Motion to Defer Ruling on Summary Judgment

By letter dated September 22, 2011, Defendant also asks the Court to defer ruling
on Plaintiff’s motion for summary judgment because “[b]ased on the new information learned
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during the deposition of Continental Envelope on September 15, 2011, Cenveo now intends
to file its own motion for summary judgment on the issue of fraud in the inducement, as well
as the other defenses. . . .” The Court denies this request because: (1) in light of the plain
terms of the Agreement disclaiming liability concerning “the suitability for use of the Products”
(which Agreement was signed in November and again in February after Defendant was
aware of the many problems it was experiencing), any such defense is dubious; (2) this
motion already was adjourned once; (3) a further adjournment to allow for motions to amend
the Answer and for a subsequent motion for summary judgment would impact the trial
deadlines in this case (which already were extended out); and (4) the parties previously
represented to the Court that no other dispositive motions were contemplated, see July 26,
2011 Text Minute Entry.
l.

Interlocutory Appeal

Lastly, at oral argument Defendant requested permission to file an interlocutory
appeal in the event the Court granted Plaintiff’s motion for summary judgment. It is a “basic
tenet of federal law to delay appellate review until a final judgment has been entered.”
Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir. 1996). A court may certify an
interlocutory order for appeal if the order “[1] involves a controlling question of law [2] as to
which there is substantial ground for difference of opinion and [3] that an immediate appeal
from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. §
1292(b).
Defendant did not articulate why an interlocutory appeal would be appropriate and,
based on the reasons set forth above, the Court finds that this case does not involve a
controlling question of law as to which there is a substantial ground for difference of opinion.
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The Court similarly finds insufficient reasons to enter partial judgment pursuant to Fed. R.
Civ. P. 56(b).
III.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment on the issue of

liability on the breach of contract claim is GRANTED, Defendant’s motion to strike is
DENIED, Defendant’s motion to file supplemental materials in support of its opposition to the
motion for summary judgment is GRANTED, the motion pursuant to Rule 56(d) is DENIED,
the motion for leave to amend is DENIED without prejudice, the motion to defer a ruling on
Plaintiff’s motion is DENIED; and the motion to file an interlocutory appeal is DENIED.
IT IS SO ORDERED.
Dated:September 26, 2011

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