Opinion
Civil No. 03-6031 (JBS).
August 11, 2004
Jeffrey M. Chebot, Esquire, WHITEMAN, BANKES CHEBOT, LLC, Philadelphia, Pennsylvania and
Bart M. Botta, Esquire, RYNN JANOWSKY, LLP, Newport Beach, California, Counsel for Plaintiff/Appellant ALG Enterprises, d/b/a/ Castle Rock Sales
David W. Fassett, Esquire, ARSENEAULT, FASSETT MARIANO, LLP, Chatham, New Jersey, and Stephen P. McCarron, Esquire, Mary Jean Fassett, Esquire, McCARRON DIESS, Washington, DC, Counsel for Defendant/Appellee Gem Produce Network, Inc.
OPINION
This matter, under the Perishable Agriculture Commodities Act ("PACA"), which has its origin in a 1998 grape transaction between these parties, comes before the Court upon defendant/appellee's motion for summary judgment and the plaintiff/appellant's responding Rule 56(f) affidavit seeking additional time for discovery. Defendant Gem Produce Network, Inc. (hereinafter "Gem Produce") seeks dismissal of an appeal by plaintiff ALG Enterprises d/b/a Castle Rock Sales (hereinafter "Castle Rock") of a reparation order entered by the Secretary of Agriculture, against Castle Rock in the amount of $21,892 plus interest and fees, but Castle Rock asserts that it needs time to conduct discovery to counter the motion. The Court will grant the appellant's application for additional time to obtain discovery for the reasons stated herein. This discovery period, however, will be limited to 45 days from today's date, upon which date appellant's opposition brief on the underlying summary judgment will be due.
I. BACKGROUND
The procedural and factual history for this case has been previously described by the Court in an opinion filed on April 22, 2004, in which the Court denied defendant Gem Produce's motion to dismiss plaintiff Castle Rock's appeal as untimely. The Court will incorporate here its prior case history, and will here include only facts pertinent to the present motion.
On or about October 8, 1998, Gem Produce purchased two loads of black seedless grapes from Castle Rock in Delano, California, for shipment to Landover, Maryland. (Pl. Pet. at 2.) Upon arrival at Landover, however, Gem Produce rejected both loads of grapes for failure to grade US#1 and for failure to meet good arrival standards. (Id.) Gem Produce filed a complaint with the United Stated Department of Agriculture ("USDA") on February, 8, 1999, seeking $22,819.00 in damages from Castle Rock, and Castle Rock initiated a counterclaim, seeking $43,428.32 in damages from Gem Produce. A plenary hearing was conducted. A Decision and Order in favor of Gem Produce, ordering Castle Rock to pay $21,892.00 in damages, was issued by USDA Judicial Officer William G. Jenson on February 6, 2002. (Def. Br., Ex. A at 14-15.) The USDA denied reconsideration in an Order entered on September 26, 2003.
An appeal of the USDA Decision and Order, which is the subject of the present motion for summary judgment, was filed by Castle Rock on December 19, 2003, with the Court. In its Petition, Castle Rock states as grounds for its appeal: 1) the Judicial Officer erred in his finding that there were no signs of abnormal transportation of the second load of grapes; 2) the Judicial Officer erred in his finding that the contract between Gem Produce and Castle Rock was F.O.B., thereby giving Gem Produce the right of rejection upon the shipment's arrival in Maryland; 3)the Judicial Officer erred in his calculation of damages against Castle Rock; and 4) the Judicial Officer erred in dismissing Castle Rock's counterclaim.
On May 21, 2004, Gem Produce filed their summary judgment motion. Castle Rock opposed the motion, and submitted a Rule 56(f) affidavit on June 4, 2004, requesting additional time for discovery prior to the Court's determination of the pending summary judgment motion.
II. DISCUSSION
Courts are obliged to give non-moving parties opposing summary judgment adequate opportunities to conduct discovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a motion for summary judgment, "[i]f a [non-moving] party believes that s/he needs additional time for discovery, Fed.R.Civ.P. 56(f) specifies the procedure to be followed, and explicitly provides that the party must file an affidavit setting forth why the time is needed." Pastore v. Bell Telephone Co. of Pennsylvania, 24 F.3d 508, 510-11 (3d Cir. 1994). The non-moving party's affidavit should "specify `what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.'" Id. (quoting Dowling v. City of Philadelphia, 855 F.2d 136, 140 (3d Cir. 1988)). See also Hancock Industries v. Schaeffer, 811 F.2d 225, 229-30 (3d Cir. 1987) (holding a Rule 56(f) affidavit insufficient because it did not explain specific needs for discovery and did not identify particular facts hoped to be uncovered); Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986) (holding a Rule 56(f) affidavit insufficient because it did not specify what discovery was needed or why it had not previously been secured). The decision of whether to grant the motion is within the sound discretion of the district court. See San Filippo v. Bongiovanni, 30 F.3d 424, 432 (3d Cir. 1994). In setting out these guidelines, "[t]he purpose of the affidavit is to ensure that the nonmoving party is invoking the protection of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition." Id. (quoting Radich v. Goode, 886 F.2d 1391, 1394 (3d Cir. 1989)).
Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Fed.R.Civ.P. 56.
There are specific instances in which a Rule 56(f) continuance is not appropriate. "If the motion is `based on pure speculation and raise[s] merely colorable claims' . . . the court acts within its discretion when it denies the motion." S.E.C. v. Antar, 120 F. Supp. 2d 431, 440 (D.N.J. 2000) (quoting Hancock Indus. v. Schaeffer, 619 F. Supp. 322, 327 (E.D. Pa. 1985)). The district court may also deny the motion if "the non-moving party has the information it seeks in its own possession or can get it from a source other than the movant," or "if the non-moving party has had an adequate opportunity to discover the information" that is seeks. Id.
Here, plaintiffs seek the following discovery:
I. "Facts concerning the temperature recorder used to monitor the temperatures during shipment of the produce at issue," which can be used to challenge the USDA finding that the recorder may have been placed in a location with the wind directly blowing on it;
II. "Facts concerning the type of damage to the grapes," which" experts in the industry" may use to determine the cause of the damage;
III. "Facts concerning GEM's inspection of the grapes prior to shipment," which can be used to challenge the USDA finding that the contract was F.O.B. rather than F.O.B. acceptance final;
IV. "Facts concerning the prices GEM paid to purchase cover grapes," which can be used to challenge the USDA calculation of damages; and
V. Facts as to whether Gem Produce gave Castle Rock an opportunity to locate replacement grapes and whether Gem Produce exercised due care in shipping the rejected grapes back to Castle Rock.
(Botta Aff. ¶ 7.) Castle Rock argues that this discovery is necessary to survive the summary judgment motion because it can prove that there are genuine issues of material fact as to the claims alleged in its appeal.
The defendant-appellee, Gem Produce, argues against the request for additional discovery for two principal reasons. First, appellee points out that plaintiff Castle Rock has had ample opportunity to conduct the discovery that it seeks. Castle Rock instituted the present action on December 19, 2003. Defendant Gem Produce filed the current motion for summary judgment on May 21, 2004, and Castle Rock submitted its response and Rule 56(f) affidavit on June 4, 2004.
Furthermore, Gem Produce points out that the same issues which underlie the claims in Castle Rock's appeal were also raised in the original USDA hearings. Thus, for a period of over five years Castle Rock has not located an expert who can testify as to how the abnormal transportation conditions could have caused the damage to the grapes. In its Rule 56(f) affidavit, Castle Rock has alleged that "there is a question of fact which experts in the industry may disagree on as to what caused the damage to the grapes." (Id. ¶ 7B.) As this statement does not identify a specific expert witness or what exact information is sought from that witness, it is unclear how additional time will help Castle Rock. In other words, in its Rule 56(f) submissions, Castle Rock, although it is a participant in the grape business, has still not even identified an expert regarding the transportation of grapes in the five and a half years since this dispute arose. Castle Rock has likewise not proffered what that opinion would be, who the expert will be, or how it would be material to defeating the summary judgment motion.
Gem Produce filed its original complaint with the USDA on February 9, 1999.
Second, Gem Produce argues that these same factual issues were necessarily involved during the several years of proceedings before the USDA. Castle Rock should also have had easy access to the "[f]acts concerning GEM's inspection of the grapes prior to shipment," (id.), as the inspection of Castle Rock grapes took place at a Castle Rock facility. Under the USDA regulations, Gem Produce points out that more than ample opportunity to obtain discovery existed before the matter went to its plenary hearing. Castle Rock had the opportunity and incentive to obtain these facts.
Prior to the oral hearing before the Judicial Officer, Castle Rock was allowed to propound interrogatories ( 7 C.F.R. 47.16(d)(2)), take oral depositions of witnesses ( 7 C.F.R. 47.1(a)), and subpoena documents and witnesses in connection with both the depositions and the hearing ( 7 C.F.R. 47.17). The hearing in this case involved numerous exhibits and several witnesses.
Finally, it is acknowledged that this case, as an appeal from a PACA reparation order, is governed by 7 U.S.C. § 499g(c), which provides that such suit in the district court "shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and order or orders of the Secretary shall be prima-facie evidence of the facts therein stated." Thus, the Federal Rules of Civil Procedure, including Rule 56(f), apply alike in PACA appeals as in other civil damages cases. What distinguishes this case from the normal seven-month-old civil case in this Court, however, is the fact that these parties and their attorneys have wrestled with this commodity spoilage and grading dispute for five and a half years, including substantial time in the USDA administrative hearing process. This Court cannot be oblivious to the PACA policy for providing an administrative forum for the prompt resolution of PACA disputes, including the presumption that a party such as Castle Rock, engaging in that administrative forum as both a defendant and a counterclaimant, has had ample time to learn the fundamental facts of the dispute before even resorting to this appellate remedy.
As compelling as Gem Produce's arguments may be, however, the Court cannot lose sight of the fact that the parties have not yet exchanged discovery in this case. There is no Scheduling Order in place, and no discovery deadline has expired. Some short period for discovery is necessary so that this matter can be brought to a rapid closure.
To assure that this motion is ripe for adjudicating, the Court will extend the deadline for Castle Rock's opposition to the summary judgment motion for 45 days from today's date. The purpose is to enable Castle Rock to seek the discovery it listed in its Rule 56(f) affidavit, supra. Toward this end, Castle Rock shall promptly serve its discovery requests within this scope upon Gem Produce and upon any third parties, as necessary. Gem Produce's time to respond to such interrogatories, document requests, or requests for admission will be reduced to 20 days after service. Castle Rock's opposition to the summary judgment motion will therefore be due in 45 days, which is September 25, 2004.
III. CONCLUSION
For the foregoing reasons, this Court will grant plaintiff Castle Rock's request for additional time for discovery, limited to 45 days. Castle Rock is required to file its opposition to the pending summary judgment motion within 45 days of the entry of this Opinion and Order. The accompanying order is entered.