*1 in a windfall time en- appeal result should prevailing party. We
largement for the automatic hold while
therefore delayed may justify the
stay of Section Fed.R.App.P.
filing of costs bills the movant has moved only if it does so for relief from the bankruptcy court designated days. This
stay within the Rule 39 only consistent with
holding is not test. bright-line provides also
DENIED. CO., INC. and
TREBOR SPORTSWEAR Inc.,
Plaintiffs-Appellants, STORES, INC., LIMITED
THE
Defendant-Appellee. 1083, Docket 88-7106.
No. Appeals, States Court
United Circuit.
Second
Argued May 12, 1989.
Decided Jan. (Les- Lazarus, City M. New York
Harlan Lazarus, P.C., City, York ter A. counsel), plaintiffs-appellants. Columbus, (John Kelm, Ohio Russell A. Schwartz, Kelm, Gleason, & Ru- Warren A. Ohio, counsel), Columbus, benstein, defendant-appellee. KEARSE, OAKES,
Before PIERCE, Judges.
PIERCE, Judge: Express, from Limited a division of The Appellants Rotano, Limited. claim that Co., Sportswear Inc. Appellants Trebor Trebor, like customarily paid its bills at (“Trebor”) Rotano Inc. point receipt some after of its merchandise. (“Rotano”) appeal from a entered Appellants allege January February 1988 in the United States Dis- The Rotano, Limited offered District of Trebor and trict Court for Southern they accepted, and that York, Brieant, “right L. first Charles Chief respect refusal” with to approximately Judge, granted appel- which the motion of Stores, apparel. worth of women’s (“The It lee The Limited Inc. Limit- appears, however, alleged agree- that this ed”) summary judgment for and dismissed ment was never contempora- reduced to a damages for claims for breach writing. neous contract, granted appellee’s and which its motion for coun- According Limited, by to The the end of payment goods terclaims for delivered June Trebor and Rotano were delin- appellants. The district court quent on their invoices. Tre- summary judgment and dismissed the 7, 1987, bor and Rotano July claim that on first, grounds, on the The Limited nevertheless issued to Trebor agreement prof- the evidence of an totaling $4,303,- four additional invoices by appellants fered Trebor and Rotano was 638.75, later, days and that two July insufficient to establish an enforceable con- The Limited issued to Rotano seven addi- tract under the statute of N.Y.U.C. totaling $1,931,487. tional invoices and, second, C. that the evidence § apparently yet merchandise had not been was inadmissible under Federal Rule of July represent- delivered when on Evidence 408. For the reasons stated be- representa- atives of The Limited met with low, we affirm. tives of Trebor and Rotano and informed them that no further merchandise would be BACKGROUND forthcoming pay- Limited until The Limited is a and vendor distributor ment was received for the merchandise al- delivered, apparel, incorporated ready of women’s in Dela- and that further mer- Apparel they purchased ware. that firms such as The Lim- chandise would have to be dispose secondary paid upon receipt ited seek to of in the goods. of the Trebor industry day agreed pay market is referred to and Rotano on the same $2,002,923; approximately “sell-off” merchandise. Trebor and Rotano The Limited $1.3 bought payment sell-off July and distributed merchan- million of that was for Limited, In early dise. late 1985 or 1986 Trebor earlier amounts owed The and the $700,000 account,” agreements remaining paid entered into the first of several “on purchase apparel women’s from The to be credited towards the merchandise most, (all delivery July appar- Limited. Prior to the from the invoices of which all, Rotano). shipments, ently Limited sent Trebor was delivered to Trebor and $500,- expressly stating payment subsequently paid invoice Trebor further receipt.” Nevertheless, litigation was “due 000 “on account” while this Thus, generally pay goods pending. Trebor did not for the of the merchandise deliv- invoice, nor, fact, invoices, upon receipt July ap- of the did on the ered which cost million, usually pay goods upon proximately Trebor for the de- Trebor and Rota- $6.2 itself, million, livery typi- approximately plus of the merchandise no in- owed terest, days receipt cally thirty arrived at the time of the district court’s instances, judgment. payment invoice. some fol- receipt than
lowed invoice more July pay- The Limited’s 17 demand for days. sixty repercussions. ment had almost immediate 1987, Rotano, earlier, spring Rotano received Beginning in the Four months $423,102.75 corporation from Limited Ex- a New York affiliated with Tre- worth $171,321.50 bor, agreed purchase apparel press. paid Rotano had of that women’s * remaining The Limited Stores has to Limited dat- by a check amount yet shipped in the wake of the merchandise not to ed meeting Rotano following approxi- with stopped on the check on about payment prices: quantities mate TREBOR 19,000 Largo pant at units later, days William Approximately seven 247,000 $ $13.00 Gerber, president and controller K. the vice *3 112,00 Striped units Ox- [sic] a cover letter and of The sent $1,024,800 at ford Shirt $9.15 Documents”) (the “July 30 draft Falus, president of and Trebor to Robert ROTANO part letter stated: 16,000 Rotano. relevant units Sweatshirt at $232,000 $14.50 a draft between Enclosed is resolve the cur- companies that can our TOTAL go us to forward rent and allow issues Payment Shipment and Terms: relationship. with our business * pay will of the 80% Rotano/Trebor fair, your proposal is and believe the We (calculat- outstanding current balance requested. Please prompt attention is $4,428,100) by ed at certified check. one agreement and return approve the The certified check will be transmitted may move for- copy to me so that we party acting firm as to a third law ward. firm trustee. This third law will Robert, must resolve this issue with- we by agreement of be selected mutual delay. emphasize I must out further counsel of The Limited Stores and agreement or at failure to reach an that Trebor/Rotano. faith, good leave bargin will least [sic] * inform The Limited The trustee will other The Limited with no alternative that the certified check has Stores legal immediate action. than Limited been received. The Stores will agreement read as follows: The draft immediately shipment of the initiate Shipment Agreement for Merchandise remaining merchandise to warehouse Payment Limited Between designated by as locations Trebor/Ro- Stores, Inc. tano. Sportswear Co., Inc. Trebor * shipment Upon confirmation of the Co., Inc. Rotano merhcandise the trustee will [sic] * agree is their mu- parties The that it check to The Lim- release the certified desire to continue business tual deposit. for immediate ited Stores relationship. * of the debt balance * purchased and Rotano have Trebor ($1,107,025 $1,503,800) pay- will be + Limited merchandise from The certain days from by certified check 30 able Stores, Inc. remaining merchan- shipment of the * (áiubject final has received dise. verification) merchandise val- quantity * In Rotano owes The Limited addition $4,303,638.75, against which at ued $423,102.75. complete This $500,000 partial has been credited as paid by certified check will be balance currently out- payment. balance shipment of the days within (See $3,803,638.75. standing attach- remaining Limited merchandise. Stores A). ment * * grant Limited Stores will (subject to final Tre- has received “Right of First Refusal” verification) merchandise val- quantity bor/Rotano merchandise for on future sell-offs of $1,931,487.00, against which ued year. This period time of one an initial partial $200,000 credited as has been defined as right first refusal will be out- 'Currently payment. The balance all offering for bid (See $1,731,487.00. attach- standing is Trebor/Rotano sell-off merchandise which B). ment disposing appeal, appellants may have interest On Trebor and Rotano through secondary market. have conceded the merit of The Limited’s * Brief, Appellants’ counterclaims. See Agreement This embodies all obli- However, they evidentiary raise both understandings gations par- objections and substantive to the incorporates all ties on this matter and disposition court’s understandings Appel- of their claims. prior negotiations and argue lants parties. their claims should not between the summarily have been dismissed because accept Trebor and Rotano chose not to admissible, 30 Documents were and commenced an ac- The Limited’s offer and thus had met their tion in state court on production burden on the statute of alia, alleged, inter that action opposing agreed spring The Limited had summary judgment. They fur- mil- of 1987 to sell Trebor and Rotano $10 ther contend because course of apparel; that The lion worth of women’s *4 dealing parties the between had established Limited had delivered million worth them, relationship a credit between apparel; and that The Limited had un- 17, right July Limited had no on 1987 to justifiably failed and refused to deliver the threaten that no further merchandise grounds diversity, balance. On would be delivered until the case Limited thereafter removed this to paid, invoices were and to demand that in court and asserted counterclaims federal paid upon the future merchandise be for $3,303,638.75 Trebor, totaling against and receipt. Finally, appellants allege that The $2,154,589.75 Rotano, against for wrongfully Limited withheld merchandise Limited had delivered to them which The which, according appellants, to payment had not been made. but for which agreed appellants had to offer to on a dismiss the com- The Limited moved to right-of-first-refusal basis. plaint pursuant Rule of Federal Civil alternative, 12(b)(6)or, Procedure DISCUSSION
summary judgment pursuant
to Rule 56.
12,
Following
hearing
January
held on
July
I. The Exclusion
the
SO Doc-
1988,
Judge
Brieant
summa-
Chief
uments
Federal Rule
Evi-
Under
in
of The Limited in all
ry judgment
favor
dence 408
respects.
summary judg-
The Limited’s motion for
granting summary judgment on The
In
essentially, on the
grounded,
ment was
counterclaims, the district court
Limited’s
argued
of frauds. The Limited
statute
appellants
disputed
not
noted that
that,
no written memo-
because there was
those counterclaims for current liabilities.
any agreement
between The
randum
proceeded
consider Tre-
The court then
Rotano,
appellants
and
Limited and
they
Rotano’s claims and held that
bor and
appellants’ claims were not enforce-
the
frauds
were barred
the statute of
be-
able.
on which
cause documents
made,
argument
July 30
Once The Limited’s
their claims—the
Doc-
founded
supported by its submissions on
all of the ele-
and was
uments—failed to “describe
motion,
production shift
the burden of
relationship
of a
unclear
ments
[and were]
Moreover,
and Rotano. Under New
court found
ed to Trebor
to duration.”
as
law,
dispute
do
that,
July 30 Documents met York
even had the
have borne
applicable, appellants would
they
“probably
were
the statute of
overcoming any statute of
dispute,
an offer to settle a
the burden
privileged as
See, e.g.,
trial.
DDP
inadmissible
[Rule
of]
[thus]
Tilden Fin.
Microsystems, Inc. v.
of Evidence.” Accord-
the Federal Rules
778,
451 N.Y.S.2d
motion 88 A.D.2d
ingly,
granted appellee’s
the court
1982);
(1st
Interconti
Dep’t
Cohn v. Geon
dismissed the
1161, 1161, 404
Corp., 62 A.D.2d
nental
complaint.
1978).
view,
(4th
In
Dep’t
There
“other” claims.
our
the evidence
N.Y.S.2d
fore,
Appellants
to survive The Limited’s mo
in order
belies this contention.
acknowl-
summary judgment,
it was incum
edge
July
they
tion for
about
identify
sufficient
upon appellants
bent
stopped payment
July
1987 check
evidence of
so
response
admissible
Limited
in
to The Limit-
genu
demonstrate that there existed a
“repudiation
obligations
ed’s
of its
to Tre-
regarding
fact
ine issue of material
July
Appendix
bor” on
for Plaintiffs-
alleged agreement.
Corp. v.
See Celotex
Moreover,
Appellants,
July 30
at 142a.
Catrett,
317, 324, 106 S.Ct.
477 U.S.
letter from The Limited
referred to
2553,
As proposition, a trial court has parol broad discretion as to whether to admit defendant’s recitation of the negotiations evidence of settlement ... offered contract ... admissible, was not purpose.” for “another Absent an abuse requires Statute Frauds writing “amounting of discretion manifest er concerning the sale of ror,” apt are not we reverse a district in excess of to be enforced. court’s prof determination as to light whether failure of the defendant to fered evidence of negotiations settlement submit evidentiary proof in admissible comes within exception this to Rule 408. ..., form it has not made a sufficient Insulators, Fiberglass 654; See 856 F.2d at showing plaintiff’s defeat the Constr., Bituminous Inc. v. En Rucker for summary judgment. ters., Inc., (4th Cir.1987); 816 F.2d Horizons, Lighting Inc. v. E.A. Kahn & Belton v. Fibreboard F.2d A.D.2d 502 N.Y.S.2d (5th Cir.1984); Smith, Reichenbach v. (2d 1986)(citations 399 Dep’t omitted). The (5th Cir.1976). 528 F.2d We correct, therefore, court was believe the district court did not abuse its awarding summary judgment in favor barring discretion in admission of the The Limited. 30 Documents. III. Appellants’ Opportunity Dis-
II. Summary Judgment
covery
Properly
Was
Granted
Finally,
we must address
district court
claim
summary
that the district court did not allow
appellee,
1)
having
them adequate discovery,
found
they
and that
that the
30 Documents
unjustly deprived
were insuffi
therefore were
cient
and,
ability
the statute of
their
production
meet
burden of
sufficient, 2)
even
that this
under
Rule of
evidence
Federal
Civil
Procedure
inadmissible
Federal
of Evi
Rule
56(f), summary judgment
Under Rule
*6
short,
dence
the district court con
“may
inappropriate
party op
where the
cluded
appellants
that
failed to demon posing it shows ...
that he cannot at the
strate that
there existed
admissible
present
time
justify
facts essential to
his
agreement
memorandum of
sufficient
opposition.”
56(e) advisory
Fed.R.Civ.P.
support appellants’ claims.
(1963).
note
nonmoving
committee’s
appellants’
opposition
party
to The Limit
should not be “railroaded” into his
ed’s
for summary
proof
opposition
offer of
summary
largely
Documents,
based on
judgment.
Celotex,
326,
30
See
477 U.S. at
which, they contended, were
106
nonmoving
sufficient
S.Ct.
2554-2555. The
satisfy the statute of frauds.
party
With the
opportunity
must have “had the
July Documents,
exclusion of the
appel
30
discover
information
is essential to his
upon
lants
no
opposition”
offered
basis
which to meet
to the motion for summary
requirements
judgment.
statute of frauds.1
Anderson
Liberty Lobby,
v.
agreement
Inc.,
242,
Evidence of a written
sufficient
477 U.S.
250 n.
106 S.Ct.
to meet the statute of
(1986).
an essen
n.
L.Ed.2d 202
But the
appellants’
and,
tial element of
having
may properly
case
trial
deny
court
dis
further
“designate ‘specific
failed
showing covery
nonmoving
facts
has had a
”
genuine
there
issue for trial’
fully adequate opportunity
re
discovery.
[was]
element,
garding
appellants
failed in See First
Bank
Nat’l
Ariz. v. Cities
of
their
production.
Co.,
253, 290-99,
burden
Celotex
See
Serv.
U.S.
88 S.Ct.
2553; 1575, 1593-98,
477 U.S. at
S.Ct.
A who wants to enforce
alleged hold oral contract and who can 2-201(1)
up satisfying memo a does
necessarily home have much to write A complying
about. memo is not boon way noncomplying memo bane. applicable exceptions, plain-
Absent simply produce
tiff loses if he fails to
complying complying memo. But a equivalent victory.... is not
memo not, sketchy theory
And whether complying
is that a memo itself is not proof
conclusive of the existence of the contract,
oral let alone of its terms. Be-
yond producing a memo “sufficient to
indicate that a contract for sale has been parties,” plaintiff
made between the persuade
must still the trier of fact that did make an oral contract and By its terms were thus and so.
parity analysis, a defendant who un-
successfully pleads the defense of the may
statute of frauds still “defend on is, prevail, may
the facts” and he persuade
still the trier of fact that no
contract was ever made. (footnote
White & Summers 56-57 omit-
ted).
Accordingly, I remand would reverse and proceedings.
for further