United States District Court, D. New Jersey
OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR
LEAVE TO FILE A MOTION FOR SUMMARY JUDGMENT
A. DICKSON. U.S.M.J.
matter comes before the Court upon Defendants' motion for
leave to file a motion for summary judgment. (ECF No. 114).
Pursuant to Federal Rule of Civil Procedure 78, the Court
resolves Defendants' application without oral argument.
After having carefully considered the parties'
submissions, and for the reasons stated below,
Defendants' Motion is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Court will rely upon the factual background and procedural
history contained in its decision issued today denying
Defendants' motion to add Marco Bonelli as a Defendant to
Antonio Sarto and Sarto S.r.l. (Collectively
"Defendants") move for leave to file a motion for
summary judgment for the purposes of seeking dismissal of
Plaintiffs' "breach of oral contract claim."
(PI. Br. at 4, ECF No. 114-1). Defendants assert that they
did not have the opportunity to address this claim in its
previous motion for summary judgment because they did not
learn about this claim until December 2016 when Plaintiffs
Liger 6, LLC ("Plaintiffs") submitted a draft of
the proposed pretrial order. (PI. Br. at 4, ECF No. 114-1).
contend that Plaintiffs "never identified" this
claim in their Complaint. Defendants argue that the breach of
contract claim contained in Plaintiffs Complaint "fails
to meet the requirements of Twombly and Iqbal. .
. " and "fail[s] to meet the plausibility
requirement because they still do not recite sufficient facts
as to the terms of the agreement." (Def. Rep. at 9, ECF
No. 121). Furthermore, defendants contend that Plaintiffs did
not identify "any oral exclusive distribution agreement
relating to SARTO products" in its responses to
discovery requests. (Def. Rep. at 5, ECF No. 121).
Specifically, Defendants cite to Interrogatory No. 13 which
states, "[i]dentify all agreements relating to any mark
containing the word SARTO to which Plaintiff has ever been a
party." (PI. Br. at 8, ECF No. 114-3). Additionally,
Defendants argue that Plaintiffs never alleged the existence
of this oral agreement in its opposition to Defendants motion
for summary judgment. (Def. Rep. at 7, ECF No. 121).
Defendants argue that case law provides that filing of a
second motion for summary judgment at this juncture is
appropriate because the parties did not address the argument
in the previous motion, the motion is not futile, the
Plaintiffs will not be prejudiced and the motion will not
delay the trial in this case. (PI. Br. at 11, ECF No. 114-1
and Def. Rep. at 11-1, ECF No. 121) (citing Brown v.
Wisconsin Dept. of Corrections. No. 15-843, 2017 WL
280716 (E.D. Wis. 2017); Voelkel v. General Motors.
846 F.Supp. 1482 (D. Kan. 1994), aff d, 43 F.3d 1484
on the contrary, argue that Defendants request is an attempt
at a second "bite of the apple." (PI. Opp. at 3,
ECF No. 117). Plaintiffs contend that they did not present a
new claim, but rather, "Liger6's exclusive
distribution rights were one component of the oral agreement,
as confirmed by the parties' course of conduct and the
fact that all six draft contracts subsequently exchanged
between the parties to memorialize their oral agreement
included such a provision for exclusive distribution
rights." (PI. Opp. at 4, ECF No. 117). Moreover,
Plaintiffs argue that this Court has already considered the
same issue and denied Defendants' first summary judgment
motion. (PI. Opp. at 5, ECF No. 117) (citing Opinion at
15-17, ECF No. 93)). Plaintiffs aver that "the Court
considered all of the draft agreements that contained an
exclusivity provision in connection with denying
Defendants' initial summary judgment motion." (PI.
Opp. at 7, ECF No. 117). As to Defendants' argument that
Plaintiffs did not identify the exclusivity portion of the
oral agreement, Plaintiffs contend that Defendants
"never asked a single question during the deposition of
Liger6's principle Marco Bonelli" and elected not to
propound any written discovery concerning the terms of the
oral agreement. (PI. Opp. at 6-7, ECF No. 117). In response
to Defendants' argument that Plaintiffs failed to answer
Interrogatory No. 13, Plaintiffs contend that the
interrogatory did not solicit information concerning specific
terms of such agreements, "such as an exclusivity
provision but rather was limited to simply identifying
agreements relating to the SARTO mark that was in dispute
between the parties, which Liger6 undisputedly did."
(PI. Opp. at 8, ECF No. 117). Furthermore, Plaintiffs argue
that Defendants request for production of documents did not
"call for a narrative description of Liger6's
contentions regarding the provisions of the parties' oral
agreement." (PI. Opp. at 9, ECF No. 117).
contend that Defendants' proposed summary judgment motion
would be futile as "there is substantial evidence
supporting Liger6's claims of exclusive distribution
rights as part of the oral agreement" and because this
Court has recognized that there are disputed issues of fact
for the jury to determine. (PI. Opp. at 9, ECF No. 117).
Plaintiffs point to the language in the drafts of the written
agreements to demonstrate that the exclusive distribution
provision was part of the oral agreement. (PI. Opp. At 10,
ECF No. 117). Furthermore, Plaintiffs disagree with
Defendants' interpretation of Bonelli's testimony.
(Id.). Finally, Plaintiffs argue that the six drafts
and Bonelli's testimony raises an issue of fact to be
resolved by the jury. (Id.).
contend that the case law presented by Defendants is not
applicable here for several reasons. First, Plaintiffs argue
that new evidence has not been discovered in this stage of
litigation. Second, Plaintiffs contend that permitting
summary judgment to address issues that are futile would not
eliminate a trial since this Court has already determined
"that there are triable issues of fact on Liger6's
breach of contract and covenant of good faith claims."
(PI. Opp. at 11, ECF No. 117). Finally, Plaintiffs argue that
permitting Defendants to file a motion at this stage is
prejudicial "by potentially delaying the trial and
unnecessarily force Liger6 to burden the expense and effort
to oppose another summary judgment motion. (Id. at
Court concludes that Defendants request to file a summary
judgment motion should be denied. First, Defendants should
have been aware of such claims since the inception of this
action. Plaintiffs alleged claims for both breach of oral
contract and of the implied covenant of good faith and fair
dealing in their 2013 Complaint. (See ECF No. 1 at Counts V,
VII.). Additionally, the Court has reviewed the record and
disagrees with Defendants contention that this is a
"new" breach of oral contract as Defendants motion
for summary judgment demonstrates that one of the facts at
issue was whether there was an oral agreement between the
parties concerning the distribution of the Sarto product in
the United States. (Def. Br. at 10, 12, 21-24, ECF No. 81-1
at 22-24). In Defendants in June 3, 2016 Summary Judgment
motion, Defendants acknowledge that Bonelli expressed
interest in selling SARTO frames in the United States. (Def.
Br., at 10, ECF No. 81-1 at 22-24). Furthermore, Defendants
argued that "Liger's own Complaint shows that there
was no meeting of the minds when it admitted in paragraphs
32- 33 that multiple drafts were exchanged regarding the so
called December 2010 oral agreement but that no written
agreement was ever signed. This proves that no agreement was
ever reached on the terms of the proposed agreement."
(Id. at 22). The drafts in question are the same
drafts that Plaintiffs note include an exclusionary
provision. Therefore, Defendants' argument that this is a
"new" breach is unpersuasive.
importantly, the issue concerning the oral contract claim was
addressed in the Honorable Jose L. Linares' August 10,
2016 decision. The Court ...