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Fiscus v. Combus Finance AG

August 10, 2007

MICHAEL FISCUS, PLAINTIFF,
v.
COMBUS FINANCE AG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Jerome B. Simandle

[relates to Docket Items 63 and 68]

OPINION

I. INTRODUCTION

This matter comes before the Court on the motion of Defendant Rolf Schnellman for summary judgment pursuant to Fed. R. Civ. P. 56 [Docket Item 63], and the opposing motion of Plaintiff Michael Fiscus for a continuance pursuant to Fed. R. Civ. P. 56(f) [Docket Item 68]. Defendant Schnellman moves for summary judgment on three issues: 1) he asks for the case to be transferred to Switzerland on the grounds that the parties signed a contract with a Swiss forum selection clause, 2) he asks for the case to be transferred on the grounds that an indispensable party has already been dismissed for lack of personal jurisdiction, and 3) he asks for the case to be transferred on forum non conveniens grounds. Plaintiff Fiscus has responded by moving for a Rule 56(f) continuance on the grounds that crucial discovery has not yet been completed. For the reasons set forth below, the Court denies Plaintiff's 56(f) motion, but allows him twenty days to submit a brief opposing Schnellman's summary judgment motion on the merits, before the Court rules on that summary judgment motion.

II. BACKGROUND

This case arises out of an alleged agreement in 2000 between Plaintiff and Defendants for Plaintiff to sell 100,000 shares of eVentures stock to Defendants for $1 million. Plaintiff claims that he has transferred the shares but has yet to receive any payment. (Compl. Para 19, 21, 23.) The motions presently before the Court center on a dispute regarding the authenticity of Plaintiff's signature on a contract titled "the Sales Agreement" ("Sales Agreement") finalizing the terms of the stock sale. The Sales Agreement contains a forum selection clause naming Switzerland as the forum to litigate all disputes regarding the stock sale. (Def.'s Br. in Supp. of Summ. Judg. Mot. at Ex. G.)

Defendant claims the Sales Agreement governs the dispute (id. at 12-20) but Plaintiff argues that the Sales Agreement is not valid because his signature is forged. (Pl.'s Certif. in Supp. of Rule 56(f) Mot. Para 3.)

Plaintiff has been denying the authenticity of his signature on the Agreement since Defendant Schnellman's motion for dismissal before the Court in 2006. Fiscus v. Combus Finance AG, No. 03-1328, 2006 WL 1722607, at *11 (D.N.J. June 20, 2006)(the "June 2006 Opinion"). In the June 2006 Opinion, the Court held that Plaintiff's allegations had to be taken as true at the motion to dismiss stage of the proceedings, but cautioned that if in the course of discovery Defendant Schnellman was able to establish the authenticity of the Sales Agreement, the Court would revisit the issue. Id.

Plaintiff's attorney from the time of the stock sale, Mr. Stephen Dennis ("Dennis"), has since been deposed. During his deposition, Dennis stated that he did not sign Plaintiff's name on the Sales Agreement, and that he did not know who did sign Plaintiff's name on it. (Dennis Dep. Tr. at 30 in Def.'s Br. in Supp. of Summ. Judg. Mot. at Ex. F.) Plaintiff Fiscus has also since been deposed, and testified that he did not recall ever having received the signed Sales Agreement, and that his signature on the Agreement was forged. (Fiscus Dep. Tr. at 99 -100 in Def.'s Br. in Supp. of Summ. Judg. Mot. at Ex. K.)

As of the present day, Plaintiff is still unable to substantiate his claim that his signature on the Agreement is forged beyond mere assertions. On October 19, 2006 the Court issued a Scheduling Order establishing January 31, 2007 as the deadline for all discovery regarding the authenticity of the Agreement. [Docket Item 56.] On January 29, 2007, Plaintiff wrote to the Court requesting a two-week extension of the discovery deadline, (Def.'s Br. in Opp. to Pl.'s Rule 56(f) Mot. at Ex. C), and the extension was granted. In the present Rule 56(f) motion, Plaintiff again asks for a continuance to extend time for discovery regarding the authenticity of the Agreement. Plaintiff now asks for more time in order to 1) obtain a handwriting expert to analyze the authenticity of his signature on the Agreement, and 2) depose Defendant Schnellman in order to obtain information about the circumstances surrounding the Agreement. (Pl.'s Certif. In Supp. of Rule 56(f) Mot. Para 7.)

III. DISCUSSION

By "its very nature, the summary judgment process presupposes the existence of an adequate record." Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007). Thus both parties must have an opportunity to conduct discovery and if upon a motion for summary judgment, the non-moving party contends that additional discovery is required, that party must file a motion under Fed. R. Civ. P. 56(f). Id. (citing Dowling v. City of Philadelphia, 855 F.2d 136, 139 (3d Cir. 1988)). Under Rule 56(f), a party may oppose a motion for summary judgment by submitting an affidavit that sets forth good reasons why the party cannot submit a reply brief justifying the party's opposition to the motion.*fn1 See Robert E. Bartkus, N.J. Federal Civil Procedure § 8-12:4, at 212-13 (1999). Upon review of a Rule 56(f) affidavit, the court may refuse to entertain the pending summary judgment motion or may order a continuance to permit additional discovery. "[W]here the facts are in possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course." Miller v. Beneficial Mgmt. Corp., 977 F.2d 834, 846 (3d Cir. 1992)(quoting Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984)); Doe, 480 F.3d at 257. This is "particularly so when there are discovery requests outstanding or relevant facts are under the control of the moving party." Doe, 480 F.3d at 257 (citing Ward v. United States, 471 F.2d 667, 670 (3d Cir. 1977)).

However, in deciding whether to grant a Rule 56(f) motion, the Court must consider "what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not been previously obtained." San Filippo v. Bongiovanni, 30 F.3d 424, 432 (3d Cir. 1994); see also Dowling, 855 F.2d at 139-30. "[I]f a court determines that the non-moving party has been afforded sufficient time for discovery, then the court can require that party to proffer its evidence and proceed with the motion." Bartkus, N.J. Federal Civil Procedure § 8-12:4 at 213.

The decision to grant a Rule 56(f) motion lies in the sole discretion of the district court. See San Filippo, 30 F.3d at 432; see also Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986)("[D]istrict judge's refusal to postpone consideration of defendant's summary judgment motion was well within the range of permissible discretion" under the circumstances of that case). Moreover, a request for relief under Rule 56(f) is "extremely unlikely to succeed" when the party seeking the delay "has failed to take advantage of discovery." Koplove, 795 F.2d at 18 (quoting 10A C. Wright, A. Miller, M. Kane, Federal Practice and Procedure ยง 2741 at 553(1983))("To require less is to deprive trial judges of the ability to effectively manage the cases on their overcrowded dockets."). Moreover, a Rule 56(f) continuance is not appropriate if the motion is either "based on pure speculation and raise[s] merely colorable ...


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