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Lopez v. Delta International Machinery Corp.

United States District Court, D. New Mexico

March 15, 2018

ISMAEL LOPEZ, Plaintiff,
v.
DELTA INTERNATIONAL MACHINERY CORPORATION; DELTA MACHINE COMPANY, INC.; ROCKWELL INTERNATIONAL CORPORATION; ROCKWELL AUTOMATION, INC.; STANLEY BLACK & DECKER, INC.; BLACK & DECKER U.S., INC.; PENTAIR, INC.; KEARNEY & TRECKER CORPORATION and GLH, LLC, Defendants.

          Joseph Cervantes Cervantes Law Firm Las Cruces, New Mexico Joseph G. Isaac Scherr & Legate, P.L.L.C. El Paso, Texas Attorneys for the Plaintiff

          Donald A. DeCandia, Tomas J. Garcia, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico Attorneys for Defendants Delta International Machinery Corporation, Stanley Black & Decker, Inc., Black & Decker (U.S.) Inc., Rockwell Automation, Inc., and Pentair, Inc.

          Stephen Simone, Chapman and Priest, P.C., Albuquerque, New Mexico, Attorneys for Defendant GLH, L.L.C.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiff's Rule 59 Motion for New Trial and/or to Alter or Amend the Judgment, filed August 23, 2017 (Doc. 107)(“Motion”). The primary issues are: (i) whether the Court clearly erred when it relied on a contract that Plaintiff Ismael Lopez submitted in supplemental briefing in granting Stanley Black & Decker Inc.'s Motion and Brief for Summary Judgment, filed December 29, 2015 (Doc. 48)(“MSJ”); and (ii) whether the Court abused its discretion in denying Lopez' request to dismiss Defendants Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc. (collectively “Black & Decker Defendants”)'s MSJ despite Lopez' assertions that he needed further discovery to oppose the MSJ. The Court concludes that it did not err in either granting the MSJ or in denying Lopez additional time for discovery. Under rule 56(c) of the Federal Rules of Civil Procedure, the Court must consider the records that parties cite, and may consider other documents that are in the record. Thus, it did not err when it reviewed and relied upon a contract that is in the record and that the parties cited in supplemental briefing. Moreover, the Court did not err under rule 56(f)(2), because it gave notice to Lopez at the hearing that it would use the contract in its opinion. The contract comports with rules 901 and 106 of the Federal Rules of Evidence, so it is admissible evidence, and the Court's consideration of it on summary judgment is proper. Finally, the Court did not abuse its discretion in denying Lopez a chance for additional discovery, because Lopez does not identify any material that would affect the Court's ruling. Accordingly, the Court denies Lopez' Motion.

         FACTUAL BACKGROUND

         The Court draws its facts from its previous Memorandum Opinion, 2017 WL 3142028, filed July 24, 2017 (Doc. 105)(“MOO”) and its Order, filed September 16, 2016 (Doc. 102)(“Order”) disposing of the MSJ. In his Motion, Lopez does not assert that the Court erred factually in its MOO or Order, so the Court omits its footnotes from the MOO analyzing the parties' factual arguments. See Motion at ¶¶ 18-39, 8-21. See also MOO at 3-14, 2017 WL 3142028, at *2-7. The Court also relays some factual allegations from the pleadings for context.

         1. The Amended Complaint's Factual Allegations.

         Lopez resides in Sunland Park, New Mexico. See Plaintiff's First Amended Complaint for Personal and Injury Damages ¶ 1, at 1, filed December 18, 2015 (Doc. 45)(“Amended Complaint”). On August 23, 2012, Lopez was sawing wood for 84 Lumber[1] in El Paso, Texas with an unguarded table power saw. See Amended Complaint ¶ 5, at 2. While he was sawing, the blade jumped, and severed Lopez' left middle and left index fingers. See Amended Complaint ¶ 5, at 2. Lopez accordingly brings product liability claims against the Black & Decker Defendants. See Amended Complaint ¶ 6, at 2-3.

         2. Undisputed Facts.

         “The events giving rise to this lawsuit . . . occurred entirely in El Paso, Texas.” MSJ ¶ 11, at 4 (asserting this fact). See the Plaintiff's Rule 56(f) Motion in Opposition to Defendant Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Motion for Summary Judgment (Doc. 48), or Alternative Motion to Extend Time to File Response at 1-16, filed January 15, 2016 (Doc. 53), and the Plaintiff's Rule 56(f) Motion in Opposition to Defendant Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Motion for Summary Judgment (Doc. 48), or Alternative Motion to Extend Time to File Response at 1-16, filed January 15, 2016 (Doc. 54)(collectively, the “MSJ Response/Motion”)(not disputing this fact);[2] Plaintiff's Supplemental Brief in Support of Rule 56(f) Motion in Opposition to Defendant Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Motion for Summary Judgment (Doc. 48), or Alternative Motion to Extend Time to File Response at 1-8, filed July 12, 2016 (Doc. 90)(“Suppl. Brief”)(not disputing this fact).

         The Black & Decker Defendants “did not design, manufacture, market or sell the subject table saw.” MSJ ¶ 1, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). “The subject table saw, a Delta Unisaw Model 36-812, serial number 01E31821, was manufactured by Delta International Machinery Corp. [] in May of 2001.” MSJ ¶ 2, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).

         Delta Intl. was a subsidiary of Pentair, Inc., a Minnesota corporation. See MSJ ¶ 3, at 3 (asserting this fact); MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). On July 16, 2004, the Black & Decker Corp. executed an agreement with Pentair, Inc. to acquire Pentair, Inc.'s and its affiliates' “Intellectual Property” and “all of the[ir] outstanding shares of capital stock, membership interests and other ownership interests (the ‘Equity Interests')” in several “Transferred Subsidiaries.” Suppl. Brief ¶ 12, at 4 (asserting this fact)(quoting Purchase Agreement between the Black & Decker Corporation and Pentair, Inc. at 1 (dated July 16, 2004), filed July 12, 2016 (Doc. 90-1)(“Purchase Agreement”)). One of the transferred subsidiaries in which The Black & Decker Corp. acquired equity interests is Delta Intl. See MSJ ¶ 3, at 3 (asserting this fact); MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). As of 2004, “Delta continues to exist as a separate and distinct legal entity, ” but “as an indirect subsidiary of The Black & Decker Corporation.” MSJ ¶ 3, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).

         In the Purchase Agreement, the Black & Decker Corp. and its “Affiliates” agree to purchase from Pentair, Inc. and its “Affiliates designated on Schedule 1.1 (each a ‘Seller'[)] . . . the Equity Interests” and “the U.S. Intellectual Property.” Suppl. Brief ¶ 13, at 4-5 (asserting this fact)(emphases omitted)(quoting Purchase Agreement § 1.1, at 1). See Black and Decker Defendants' Response to Plaintiff's Supplemental Brief [Doc 90] (Filed Under Seal) at 1-5, filed July 29, 2016 (Doc. 94)(“Suppl. Brief Response”)(not disputing this fact). Schedule 1.1, in turn, lists Pentair Tools Group, Inc. (DE) -- Pentair, Inc.'s affiliate -- as the “Seller” of “Equity Interests” in Delta Intl., and Delta Acquisition Corp. -- The Black & Decker Corp.'s affiliate -- as the “Purchaser” of those interests. Schedules to Purchase Agreement Between The Black & Decker Corp. and Pentair, Inc. (the “Agreement”) at 2, filed July 12, 2016 (Doc. 90-2)(“Schedules”). Schedule 3.1(c) specifies that Delta Intl. is a wholly owned subsidiary of Pentair Tools Group, Inc. (DE). See Schedule 3.1(c), at 4. The Schedules, moreover, outline the intellectual property -- including trademark and patent rights -- that transfers with the Purchase Agreement. See Schedule 3.1(r), at 33-91. Schedule 1.1 names The Black & Decker Corp. as the “Purchaser” of the “U.S. Trademark Rights” from “All Holders of U.S. Trademark Rights, ” and Black & Decker (U.S.), Inc. as the “Purchaser” of the “U.S. Patent Rights” from “All U.S. Holders of U.S. Patent Rights.” Schedule 1.1, at 2.

         Also in the Purchase Agreement, The Black & Decker Corp., as the “Buyer, ” makes certain “Representations and Warranties” to Pentair, Inc., the transferred subsidiaries' “Parent, ” including that it has “‘Authority' to make the ‘valid and binding agreements enforceable in accordance with their respective terms.'” Suppl. Brief ¶ 16, at 5-6 (asserting this fact)(emphases omitted)(quoting Purchase Agreement § 3.2, at 14). See Suppl. Brief Response at 1-5 (not disputing this fact). The Purchase Agreement provides that The Black & Decker Corp. shall “indemnify” Pentair, Inc. for “all Losses . . . resulting from [] the breach of the representations and warranties of [The Black & Decker Corp.]. . . .” Suppl. Brief ¶ 18, at 6 (asserting this fact)(alterations added)(emphasis omitted)(quoting Purchase Agreement § 8.2, at 41). See Suppl. Brief Response at 1-5 (not disputing this fact). Pentair, Inc. also makes “Representations and Warranties” to The Black & Decker Corporation. Purchase Agreement § 3.1, at 5-13. For example, in the event of “[l]osses . . . resulting from [] any breach of any of the representations and warranties of [Pentair, Inc.] . . . or [] any Indemnified Liability, ” the Purchase Agreement provides that Pentair, Inc. shall indemnify The Black & Decker Corp. Purchase Agreement § 8.1, at 39-40 (alterations added). In its “Definitions” section, the Purchase Agreement defines “Indemnified Liabilities” to include “all liabilities ‘of the Subsidiaries' other than ‘Transferred Liabilities.'” Suppl. Brief Response at 3 (asserting this fact)(quoting Purchase Agreement § 11.17, at 56). See Plaintiff's Reply in Support of His Supplemental Brief in Support of His Rule 56(f) Motion in Opposition to the Black & Decker Defendants' Motion for Summary Judgment (Doc. 48), or Alternative Motion to Extend Time to File Response (Doc. 54) at 1-12, filed August 12, 2016 (Doc. 95)(“Suppl. Brief Reply”)(not disputing this fact).

         The Purchase Agreement defines “Transferred Liabilities” to include, among other things, any “liabilities and obligations of the Subsidiaries arising out of bodily injury, death or other damage relating to products manufactured prior to the Closing, including all Third Party Claims relating to such bodily injury, death and other damage, whether or not such Third Party Claims are successful . . . .” Suppl. Brief ¶ 19, at 6-7 (asserting this fact)(emphases omitted)(quoting Purchase Agreement § 11.17, at 60-61). See Suppl. Brief Response at 1-5 (not disputing this fact). The “Subsidiaries” whose liabilities transfer with the Purchase Agreement include “any corporation or entity engaged in the Business of which securities or other ownership interests having ordinary voting power to elect a majority of directors or other persons performing similar functions are directly or indirectly owned by [Pentair, Inc.] . . . .” Suppl. Brief ¶ 21, at 7 (asserting this fact)(alteration added)(emphases omitted)(quoting Purchase Agreement § 11.17, at 59). See Suppl. Brief Response at 1-5 (not disputing this fact). With respect to these subsidiaries' businesses, the Purchase Agreement provides that The Black & Decker Corp. “will be able to continue to conduct the Business after Closing in the manner in which the Business has been conducted by the Subsidiaries.” Purchase Agreement § 3.1, at 9-10.

         The Purchase Agreement provides that its provisions “shall be construed and interpreted according to the internal laws of the State of Delaware, excluding any choice of law rules that may direct the application of the laws of another jurisdiction.” Purchase Agreement § 11.4, at 49.

         In March 2010, “The Black & Decker Corporation merged with a wholly owned subsidiary of The Stanley Works and The Black & Decker Corporation became a wholly owned subsidiary of The Stanley Works.” MSJ ¶ 5, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). “The Stanley Works changed its name to Stanley Black & Decker, Inc. on March 12, 2010.” MSJ ¶ 5, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). “Stanley Black & Decker, Inc. does not design, manufacture or sell Delta Unisaws, it was not [in] existence in 2001, and it did not design, manufacture, or sell the subject Delta Unisaw Model 36-812, which was manufactured in 2001.” MSJ ¶ 9, at 4 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).

         “Black & Decker (U.S.) Inc. has no corporate relationship with Delta other than that, as of October of 2004, both of these separate and distinct entities are both subsidiaries of The Black & Decker Corporation.” MSJ ¶ 7, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). “Black & Decker (U.S.) Inc. did not design, manufacture or sell Delta Unisaws at any time prior to October of 2004 and it did not design, manufacture, or sell the subject Delta Unisaw Model 36-812, which was manufactured in 2001.” MSJ ¶ 10, at 4 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).

         PROCEDURAL BACKGROUND

         Lopez commenced this action in the Third Judicial District Court, Doña Ana County, State of New Mexico, on January 13, 2015. See Plaintiffs['] Original Complaint at 1, Lopez v. Delta International Machinery Corp., D-307-CV-215-00077, (Third Judicial District Court, County of Doña Ana, State of New Mexico), filed in federal court on March 5, 2015 (Doc. 1-1)(“Original Complaint”). The Original Complaint appears to assert two claims: (i) strict products liability, see Original Complaint ¶ 14, at 7-8; and (ii) negligence, including one or more of sixteen alternative theories, see Original Complaint ¶ 23, at 9-10. Lopez seeks compensatory damages for medical care, lost wages, inability to perform household duties, and pain and suffering. See Complaint ¶¶ 24-26, at 10. On March 5, 2015, the Black & Decker Defendants removed the case to federal district court. See Notice of Removal at 1, filed March 5, 2015 (Doc. 1).

         On September 18, 2015, the Court dismissed from the case all Defendants -- except for the two Black & Decker Defendants -- for lack of personal jurisdiction. See Sept. 18, 2015, Hearing Minutes at 1. See also Memorandum Opinion at 26, 2016 WL 1408152, at *14, filed March 15, 2016 (Doc. 77). On December 23, 2015, Lopez moved to file an Amended Complaint asserting claims against only the Black & Decker Defendants, see Motion to Amend at 1, and, on January 8, 2016, the Court granted that motion, see Amendment Order at 1. The Amended Complaint asserts the same two claims as the original Complaint: (i) negligence, including sixteen alternative theories; and (ii) strict products liability.[3] See Amended Complaint ¶ 6, at 2- 3. The Amended Complaint also seeks the same compensatory and punitive remedies as the Original Complaint. See Amended Complaint ¶¶ 7-11, at 3-4.

         The Black & Decker Defendants subsequently moved for summary judgment. See MSJ at 1. They argued, in the MSJ, that they are not liable to Lopez, because (i) they did not design, manufacture, market, or sell Lopez the table saw; and (ii) they could not be liable under a successor liability theory, even though The Black & Decker Corp. -- Stanley Black & Decker's predecessor -- had acquired Delta Intl. -- the table saw manufacturer. See MSJ at 4-7. They argued that successor liability could not attach, because Black & Decker (U.S.) Inc. has no legally significant corporate relationship with Delta Intl., and because Stanley Black and Decker Inc. did not expressly assume Delta Intl.'s liability with respect to the table saw. See MSJ at 4-7. Lopez responded, in the MSJ Response/Motion, that summary judgment was premature, because he had not yet been able to depose the Black & Decker Defendants' rule 30(b)(6) witnesses nor had he been able to conduct discovery about whether the Black & Decker Defendants had placed the table saw into the stream of commerce. See MSJ Response/Motion ¶¶ 16, 18, at 4-6. He also argued that the Black & Decker Defendants had incorrectly applied Texas' successor liability law, because New Mexico's choice-of-law rules and public policy dictated a different outcome. See MSJ Response/Motion ¶ 19, at 6. He added that more discovery could demonstrate that application of Texas successor liability law is contrary to New Mexico public policy. See MSJ Response/Motion ¶¶ 25-26, at 12-13. Accordingly, he requested that the Court dismiss the MSJ without prejudice under rule 56(d)[4] until discovery could be completed. See MSJ Response/Motion ¶ 35, at 16.

         Subsequently, the parties produced the Purchase Agreement, and Lopez argued the Purchase Agreement's “Transferred Liabilities” section demonstrates that the Black & Decker Corp. expressly assumed Delta Intl.'s liability when the former acquired the latter's equity interests. See Suppl. Brief ¶ 19, at 6-7. The Black & Decker Defendants rejoined that Lopez misreads the Transferred Liabilities section, because the Purchase Agreement states that the liabilities stay with the transferred subsidiaries and not that the liabilities are transferred to the acquiring corporation. See Suppl. Brief Response at 3. The Defendants added that Lopez' attempts to pierce the corporate veil, but that there is no evidence that the Black & Decker Defendants dominate Delta Intl. See Suppl. Brief Response at 4.

         The Court then granted the MSJ. See Order at 1-2; MOO at 71, 117, 2017 WL 3142028, at *30, *48. It ruled that, under New Mexico choice-of-law rules, Texas law governed Lopez' negligence and strict liability claims, because New Mexico choice-of-law rules follow “the doctrine of lex loci delicti commissi”[5] for tort claims, and the harm occurred in Texas. MOO at 76, 2017 WL 3142028, at *32. The Court also concluded that the successor liability issue, in this case's particular context, was “predominantly a matter of tort law.” MOO at 85, 2017 WL 3142028, at *36. Accordingly, it concluded that Texas law governs the successor liability issue, so “the only exception” to the traditional nonliabilty rule for successors in interest is the “express assumption of liability” exception. MOO at 92, 2017 WL 3142028, at *39. Because contract principles required the Court to analyze whether the Black & Decker Defendants expressly assumed liability, the Court effected the Purchase Agreement's choice-of-law provision and interpreted its terms under Delaware law. See MOO at 93, 2017 WL 3142028, at *38. After disposing with the choice-of-law issues, the Court determined that the Black & Decker Defendants were entitled to summary judgment on Lopez' claims, because: (i) they did not supply the table saw; (ii) Lopez could not pierce the corporate veil, because being an “affiliate” does not “establish an alter ego theory” and because there is no evidence that the Black & Decker Defendants controls Delta Intl.; and (iii) the Purchase Agreement transfers liabilities to the existing subsidiaries and not to the Black & Decker Defendants. See MOO at 98-110, 2017 WL 3142028, at *40-45. The Court also denied Lopez' rule 56(d) request, because Lopez offered a conclusory affidavit that asserted that there are more relevant facts to be discovered, but did not “identify[] the probable facts not available and what steps have been taken to obtain these facts.” MOO at 115, 2017 WL 3142028, at *47 (citing Garcia v. U.S. Air Force, 533 F.3d 1170, 1179 (10th Cir. 2008)). Because there were no additional claims or parties before it, the Court subsequently entered Final Judgment. See Final Judgment at 1-2, filed July 26, 2017 (Doc. 106)(“Final Judgment”).

         1. The Motion.

         Lopez requests the Court to vacate, alter, or amend the MOO and Final Judgment, arguing that the Court erred in granting the MSJ, and that the Court erroneously denied his 56(d) request as “moot by simply reviewing and interpreting the Purchase Agreement -- submitted by Plaintiff . . . and never submitted by the Black & Decker Defendants.” Motion ¶¶ 1-2, at 1-2 (underline and italics in original). He argues that the Court erred, because it should not have relied on the Purchase Agreement in the MOO. See Motion ¶ 22-24, at 9-10. He contends that relying on the Purchase Agreement was error, because: (i) the Black & Decker Defendants represented that the Court could grant their MSJ without reference to the Purchase Agreement; (ii) Lopez -- and not the Black & Decker Defendants -- provided the Purchase Agreement to the Court and proffered it to demonstrate why further discovery is needed; (iii) the Black and Decker Defendants did not establish to Lopez that the Purchase Agreement “was a full and complete copy of all documents reflecting the purchase agreement”; and (iv) the Black & Decker Defendants “provided no evidence . . . to explain or interpret the meaning of any provisions in the PA.[6]” Motion ¶¶ 22-26, at 9-11. Lopez adds that the Court should have required the Black & Decker Defendants “like any defendant, to provide appropriate evidence to establish the PA reflected a true and correct copy of the entire agreement.” Motion ¶ 27, at 11-12.

         Lopez argues that the Court should interpret the Purchase Agreement's “Transferred Liabilities” provision as transferring all liabilities to the Black & Decker Defendants. See Motion ¶¶ 28-35, at 12-19.[7] Lopez also argues that Delaware or New Mexico law and not Texas law applies to the successor liability issue, because product liability issues “are grounded in contract, not tort law.” Motion ¶¶ 36-39, at 19-21. Thus, according to Lopez, the Court should either effect the parties' intention that Delaware law applies or should apply New Mexico law for public policy reasons. See Motion ¶¶ 36-39, at 19-21.[8]

         2. The Response.

         The Black & Decker Defendants respond that Lopez' rule 59 motion fails, because he largely “revisit[s] issues already addressed” without “new arguments” or with “supporting facts . . . available at the time of the original motion.” Response at 3 (citing Servants of the Paraclete, 204 F.3d 1005, 1012 (10th Cir. 2000)). See Response at 6 (“Plaintiff devotes over 10 pages of his Motion to copying and pasting verbatim the near entirety of Plaintiff's Supp. Brief Reply.”). The Black & Decker Defendants also argue that Lopez has not shown error, because the Court properly relied on the Purchase Agreement, as Lopez “is the one who placed the entire Purchase Agreement into the record.” Response at 4. They add that, even if they had some burden to put the Purchase Agreement into the record themselves, they did so by “plac[ing] the controlling excerpts into the record.” Response at 4 (citing Purchase Agreement, filed July 29, 2016 (Doc. 94-2)). They also add that the Court may, under rule 56(c)(3), look to materials that are in the record even if the parties do not cite them. See Response at 4 (citing Fed.R.Civ.P. 56(c)).

         The Black & Decker Defendants also argue that the Court is “fully capable of interpreting contractual language” even absent “an affidavit from a contract-reader.” Response at 4. They contend that, even if there is some requirement that a Court receive an expert opinion to interpret a contract, the Black & Decker Defendants provided such an affidavit explaining their position. See Response at 4-5 (citing Affidavit of Theodore C. Morris at 1 (executed December 17, 2015), filed December 29, 2015 (Doc. 48-2)). They also argue that there is no legal authority for Lopez' contention that, before the Court may review the Purchase Agreement, the Black & Decker Defendants must affirmatively prove that the Purchase Agreement “was a full and complete copy of all documents” reflecting the Purchase Agreement. Response at 5. The Black & Decker Defendants conclude that the Court should disregard Lopez' repeated arguments concerning contract interpretation and choice-of-law as the Court has already considered and rejected them. See Response at 6.

         3. The Reply.

         Lopez replies that the Court erred under rule 56(f)(2), because it granted the MSJ on a “ground[] not raised by a party.” Plaintiff's Reply in Support of Plaintiff's Rule 59 Motion for New Trial and/or to Alter or Amend the Judgment (Doc. 107) at ¶ 3, at 2, filed September 20, 2017 (Doc. 109)(“Reply”). According to Lopez, because the Black & Decker Defendants did not produce the entire Purchase Agreement nor use it in their MSJ, and because the Court did not give Lopez “notice and a reasonable time to respond” to the Purchase Agreement, the Court erred. Reply ¶ 3, at 2. He adds that the Court erred, because it did not allow him discovery on the Purchase Agreement. See Reply at ¶¶ 4-5, at 3. He concludes that there are issues of fact regarding “the existence, meaning and interpretation of provisions of the Purchase Agreement, ” so the Court erred in granting the MSJ. Reply ¶ 6, at 4.

         LAW REGARDING SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013) (Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d at 891). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).[9]

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“However, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.”)(citation omitted). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, 2008 U.S. Dist. LEXIS 45838, at *1 (D. Kan. 2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed.R.Civ.P. 56(e)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (citations omitted).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide credibility issues. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court of the United States of America concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiff's version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Scott v. Harris, 550 U.S. at 380 (emphases in original). Applying these standards to a factual dispute over whether the plaintiff-respondent “was driving in such fashion as to endanger human life, ” the Supreme Court held that the plaintiff-respondent's “version of events is so utterly discredited by the record that no reasonable jury could have believed him.” 550 U.S. at 380. Thus, the Supreme Court concluded, “[t]he Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by [a] videotape, ” which showed the plaintiff-respondent driving extremely dangerously. 550 U.S. at 381.

         The United States Court of Appeals for the Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads v. Miller, [352 F. App'x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished), ] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.)(citation omitted), aff'd, 499 F. App'x 771 (2012).

In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377 (2007). “[T]his usually means adopting . . . the plaintiff's version of the facts, ” id. at 378, unless that version “is so utterly discredited by the record that no reasonable jury could have believed him, ” id. at 380. In Scott, the plaintiff's testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379. Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads' testimony. There is only other witnesses' testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads' alcoholism and memory problems go to the weight of his testimony, not its admissibility . . . . Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96 (1989), and this court's precedent.

Rhoads v. Miller, 352 F. App'x at 291-92.[10] See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 F. App'x at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court, ” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J., concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir. 1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts”).

         The Court has recently ruled on several summary judgment motions. In Simon v. Taylor, 252 F.Supp.3d 1196 (D.N.M. 2017) the Court considered whether horse trainers and owners were entitled to summary judgment on various New Mexico tort claims for purportedly contaminating a race-winning horse with caffeine. See Simon v. Taylor, 252 F.Supp.3d at 1240- 41 (Browning, J.). It concluded that the horse trainers and owners were entitled to summary judgment, largely because the only evidence of caffeine contamination was a horse-urine sample, but there was little to no evidence that the defendants had intentionally contaminated the horse, or even knew that the horse had caffeine in him. See Simon v. Taylor, 252 F.Supp.3d at 1246, 1248, 1253. In Parrish v. Roosevelt County Board of County Commissioners, 2017 WL 6759103 (D.N.M. December 31, 2017)(Browning, J.), the Court concluded that Roosevelt County was entitled to summary judgment on a FLSA overtime claim, because the prison official suing for overtime qualified as an overtime-exempt prison administrator or executive. See Parrish v. Roosevelt County Board of County Commissioners, 2017 WL 6759103, at *19-20 (“Parrish's primary duty is directly related to Roosevelt Detention's management.”)

         LAW REGARDING RULE 56(d)

         Rule 56(d) provides:

         (d) When Facts Are Unavailable to the Nonmovant.

         If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d).[11] “A party who seeks relief under subdivision (d) may seek an order deferring the time to respond to the summary-judgment motion.” Fed.R.Civ.P. 56(d) advisory committee committee's note to the 2010 amendments. The rule permits a nonmovant to show by affidavit or declaration the need for additional discovery; a formal affidavit is thus not required. See Fed.R.Civ.P. 56(d). The rule permits a “written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit.” Fed.R.Civ.P. 56(c) advisory committee committee's note to the 2010 amendments.

         When a party files an affidavit or declaration, and moves for additional discovery time under rule 56(d), the party invokes the court's discretion. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir. 1993). “Unless dilatory or lacking in merit, ” a party's 56[(d)] application “should be liberally treated.” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 (internal quotation marks and citations omitted). “The general principle of Rule 56(d) is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to [its] opposition.” Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000). Rule 56(d) does not require, however, that summary judgment not be entered until discovery is complete. See Price ex rel. Price v. W. Res., Inc., 232 F.3d at 784.

         “Rule 56[(d)] is not a license for a fishing expedition . . . .” Lewis v. Ft. Collins, 903 F.2d 752, 758 (10th Cir. 1990). To invoke rule 56(d), the party filing the affidavit or declaration must state with specificity how the desired time would allow it to meet its burden in opposing summary judgment. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. Rule 56(d) may not be invoked based solely upon the assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. Moreover, while the summary judgment movant's exclusive control of information weighs heavily in favor of relief under 56(d), see Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783, merely asserting such is insufficient to justify denial of summary judgment, see Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. Furthermore, “if the party filing the Rule 56[(d)] affidavit has been dilatory, or the information sought is either irrelevant to the summary judgment motion or merely cumulative, no extension will be granted.” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 (denying a 56(d) request stating “the record reflects that plaintiffs were dilatory in pursuing discovery prior to the filing of their 56[(d)] affidavit”). See Johnson v. Holmes, 377 F.Supp.2d 1039, 1044-45 (D.N.M. 2004)(Browning, J.)(denying a 56(d) request where plaintiff did not explain why, during the discovery period that the court allowed, he did not obtain the discovery sought in his motion). The Tenth Circuit has summarized rule 56(d)'s requirements as follows:

A prerequisite to granting relief pursuant to Rule 56[(d)] is an affidavit furnished by the nonmovant. Although the affidavit need not contain evidentiary facts, it must explain why facts precluding summary judgment cannot be presented. This includes identifying the probable facts not available and what steps have been taken to obtain these facts. In this circuit, the nonmovant also must explain[, with specificity, ] how additional time will enable him to rebut movant's allegations of no genuine issue of fact.

Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783 (citations and internal quotation marks omitted). See Tadlock v. Lahood, 2013 WL 6284428, at *5 (10th Cir. 2013)(unpublished)(citing Price ex rel. Price v. W. Res., Inc. for the rule 56(d) requirements after the 2010 amendment); Douglass v. United Auto Workers Local Union 31, 188 F. App'x 656, 658 (10th Cir. 2006)(stating that the affidavit must state how additional time will enable the party to meet its burden “with specificity”). A rule 56(d) affidavit or declaration must state, with specificity, exactly what additional discovery is believed necessary. See Burke v. Utah Transit Auth. and Local 382, 462 F.3d 1253, 1264 (10th Cir. 2006); Chavez v. Perry, 142 F. App'x 325, 334 (10th Cir. 2005)(“To resist summary judgment on this basis (56[(d)]), a party must specifically identify what facts it seeks to discover and show how those facts would materially aid its case on the dispositive issues.”). If a party does not file an affidavit or declaration, a district court does not abuse its discretion in denying discovery. See Tadlock v. Lahood, 2013 WL 6284428, at *5.

         The Court has previously denied rule 56(d) motions where the information sought does not relate to a relevant legal question. See Martinez v. Lucero, 2012 WL 2175772, at *30 (D.N.M. May 31, 2012)(Browning, J.)(“Because the information sought would not alter the Court's decision on either absolute or qualified immunity, the Court will deny the request for discovery pursuant to rule 56(d).”). Similarly it has denied 56(d) requests where the party seeks duplicative information. See Todd v. Montoya, 877 F.Supp.2d 1048, 1099 (D.N.M. 2012)(Browning, J.)(“There is little difference between the discovery he seeks and what he would seek if Montoya had not raised a qualified-immunity defense.”). Finally the Court has dismissed rule 56(d) motions where the proponent does not submit a rule 56(d) affidavit. See Chavez v. County of Bernalillo, 3 F.Supp.3d 933, 991 (D.N.M. 2014)(Browning, J.)(“He did not submit a rule 56(d) affidavit or declaration.”)

         LAW REGARDING 56(f)

         Rule 56(f) reads:

         After giving notice and a reasonable time to response, the court may:

(1) Grant summary judgment for a nonmovant;
(2) Grant the motion on grounds not raised by a party; or
(3) Consider summary judgment on its own after identifying for the parties materials facts that may not be genuinely in dispute.

Fed. R. Civ. P. 56(f). The advisory committee notes that “[s]ubdivision (f) brings into Rule 56 text a number of related procedures that have grown up in practice. . . . In many cases it may prove useful first to invite a motion; the invited motion will automatically trigger the regular procedure of subdivision (c).” Fed.R.Civ.P. 56(f) (2010 advisory committee notes). Generally the Tenth Circuit does not “favor granting of summary judgment sua sponte, ” but “a district court may do so if the losing party was on notice that she had to come forward with all of her evidence.” Oldham v. O.K. Farms, Inc., 871 F.3d 1147, 1150 (10th Cir. 2017). See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). “[E]ven if such notice is lacking, we will still affirm a grant of summary judgment if the losing party suffered no prejudice from the lack of notice.” Oldham v. O.K. Farms, Inc., 871 F.3d at 1150 (quoting Johnson v. Weld County, 594 F.3d 1202, 1214 (10th Cir. 2010)). The Tenth Circuit has suggested that a Court grants a motion on grounds not raised by a party when neither party has briefed it. See Oldham v. O.K. Farms, Inc., 871 F.3d at 1150. See also Tabura v. Kellogg USA, 880 F.3d 544, 558 (10th Cir. 2018)(concluding that a district court erred in granting summary judgment on a ground that the movant did not raise, when the nonmovant only addressed the argument obliquely and did not marshal “all of their evidence” against it). A court is not required to give explicit notice to a party that it will rule on a particular ground, but a party must be sufficiently “aware that the district court planned to rule on the issue” A.M. v. Holmes, 830 F.3d 1123, 1137 (10th Cir. 2016).

         LAW REGARDING MOTION TO ALTER OR AMEND UNDER RULE 59(e)

         Motions to reconsider in civil cases fall into three categories:

(i) a motion to reconsider filed within twenty-eight[12] days of the entry of judgment is treated as a motion to alter or ...

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