Animal Hospital v. Antech Diagnostics

2012 DNH 157

Opinion

Animal Hospital v. Antech Diagnostics 11-CV-448-SM 9/10/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Animal Hospital of Nashua, Inc., Plaintiff

v. Case No. ll-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. See Fed. R. Civ. P.

5 6 (d). 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.

Flovd, 2012 WL 642810, at *5 (D.N.H. Feb. 28, 2012) (Barbadoro,

J.) (quoting C.B. Trucking, Inc. v. Waste M q m t . Inc., 137 F.3d

41, 44 (1st Cir. 1998)). The courtfinds 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. Lamkin Aff.,

doc no. 46-2, 5 8. 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." Doc.

no. 3J\_, pg. 1. 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 A s s o c ., 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., 5 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. ^6), 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. 4h5) is denied as moot.

SO ORDERED.

Sireven 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.