Datasec v. Lockheed

• Court: District Court, D. New Hampshire
• Decided: April 17, 1997
• Docket: CV-95-604-B
• Status: Published

Opinion

Datasec v. Lockheed CV-95-604-B 04/17/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Datasec Corporation

v. Civil No. 95-604-B

Lockheed Aircraft Service, Co.

O R D E R

Datasec Corporation ("Datasec") claims that Lockheed

Aircraft Service, Co. ("Lockheed") breached a contract to pay for

computer equipment worth $54,4 93. Lockheed acknowledges that it

received certain computer equipment from Datasec, but denies that

it agreed to pay for the equipment. Lockheed argues in its

motion for summary judgment that Datasec cannot produce

sufficient evidence to support its contract claim. It also

argues that Datasec's contract claim is barred by the statute of

frauds. For the reasons that follow, I determine that both

arguments are unavailing.

I. STANDARD

Summary judgment is only appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file. together with affidavits, if any, show that 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). A "genuine" issue is one "that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party." Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). A "material issue" is one that "affect[s]

the outcome of the suit . . . ." Id. at 248. I view the record

in the light most favorable to the non-moving party, according

the nonmovant all beneficial inferences discernable from the

evidence. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st

Cir. 1988) .

II. DISCUSSION

Lockheed first argues that it is entitled to summary

judgment because no reasonable jury could conclude from the

evidence that Lockheed ever agreed to pay for the computers.

Datasec responds by producing an affidavit from John Hope,

president of Datasec, who asserts that Lockheed's representatives

met with him in December 1990 and agreed to pay for the computers

unless they were returned at the end of a two-week evaluation

- 2 - period. Since it is undisputed that Lockheed kept the computers

for many months, Datasec claims that it has a triable contract

claim. I agree.

Lockheed next argues that even if a reasonable jury could

find that it contracted to pay for the computers, it is entitled

to summary judgment because the statute of frauds, RSA 382-A:2-

201 (1994), prevents Datasec from enforcing the agreement.1 I

reject this argument. New Hampshire's statute of frauds provides

an exception for goods which have been received and accepted.

Like the existence of a contract itself, whether goods have been

1 Rule 8 (c) of the Federal Rules of Civil Procedure reguires a party to set forth all affirmative defenses in a responsive pleading. "A defendant who fails to assert an affirmative defense . . . acts at his peril," and may be found to have waived his right to assert the defense. Williams v. Ashland Eng1q C o . Inc., 45 F.3d 588, 593 (1st Cir.), cert, denied, 116 S. C t . 51 (1995). In determining whether a party's failure to assert an affirmative defense constitutes a waiver of that defense, the court must make a practical assessment as to whether Rule 8(c)'s core purpose -- "to act as a safeguard against surprise and unfair prejudice," id. -- has been violated. However, if prejudice does not exist, a court may and should liberally allow amendments to the pleadings under Fed. R. Civ. P. 15 (a) .

Lockheed's answer did not list the statute of frauds as an affirmative defense. However, Datasec has responded to Lockheed's statute of frauds claim on its merits rather than claiming that the defense had been waived. Accordingly, I deem Lockheed's answer to be amended to assert a statute of frauds defense.

- 3 - received and accepted is a question of fact. See Crowley v.

Marshall, 80 N.H. 442, 443 (1922)(pre-UCC statute of frauds case

construing receipt and acceptance). It is undisputed in this

case that Lockheed received the computers and a genuine dispute

exists as to whether Lockheed accepted the goods. Accordingly,

Lockheed is not entitled to summary judgment on its statute of

frauds defense.

III. CONCLUSION

For the foregoing reasons, I deny Lockheed's motion for

summary judgment (document no. 17) .2

SO ORDERED.

Paul Barbadoro United States District Judge

April 17 , 1997

cc: William E. Aivalikles, Esq. William D. Pandolph, Esq.

2 I have not considered Datasec's unjust enrichment claim. The Magistrate Judge denied as untimely Datasec's motion to amend the complaint to add a quantum meruit claim. Therefore, Datasec's arguments in its objection to summary judgment on this point are irrelevant.

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