Sookhoo v. Becton Dickinson & Co. , 104 F. App'x 825 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-28-2004
Sookhoo v. Becton Dickinson Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3216
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"Sookhoo v. Becton Dickinson Co" (2004). 2004 Decisions. Paper 457.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3216
RONNIE SOOKHOO; INDUSTRIAL LABORATORY
RESEARCH LIMITED, a limited liability
company of the Republic of Trinidad
and Tobago
Appellants
v.
BECTON DICKINSON AND COMPANY,
a New Jersey corporation;
ENRIQUE GUDINO; RAUL A. FABREGA
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR DISTRICT OF NEW JERSEY
(Dist. Court No. 01-cv-03863)
District Court Judge: Honorable Anne E. Thompson
Argued: June 18, 2004
Before: ALITO, SMITH, AND WALLACE * , Circuit Judges.
(Opinion Filed: July 28, 2004)
*
The Honorable J. Clifford Wallace, Senior Circuit Judge for the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
LAUREN B. COHEN (argued)
175 Fairview Avenue
Paramus, New Jersey 07652
Counsel for Appellants
ANDREW W. SCHW ARTZ (argued)
STEVEN R. ROWLAND
Sills, Cumis, Epstein & Gross, P.S.
One Riverfront Plaza
Newark, New Jersey 07102-5400
Counsel for Appellee
OPINION OF THE COURT
PER CURIAM:
This is an appeal of a summary judgment order. The relevant facts are set out in
the District Court’s opinion. We find that there exists a genuine issue of material fact,
and we therefore reverse the District Court’s summary judgement order and remand for
trial.
In its complaint, Sookhoo alleged that he had a contract with Becton Dickinson
and Company (“BD”) to be BD’s exclusive distributor in Trinidad.1 Unfortunately for
Sookhoo, he was unable to produce a written copy of any contract. In response to the
complaint, BD submitted a motion to dismiss under FRCP 12(b)(6), arguing that any
1
Sookhoo also stated claims in tort and promissory estoppel.
2
existing agreement was between Sookhoo and one of BD’s foreign subsidiaries. BD
reasoned that as Sookhoo, Industrial, and BD’s foreign subsidiaries were all non-citizens,
the District Court did not have diversity jurisdiction over the contract claim. After
reviewing this motion, the District Court issued an order stating that previously it had
“converted this motion into a motion for summary judgment.” The District Court then
dismissed the case for lack of subject matter jurisdiction, ruling that Sookhoo failed to
produce evidence that there was any agreement between him and BD and furthermore
finding that, if any agreement existed, it was between Sookhoo and BD’s foreign
subsidiary.
We conclude that an erroneous procedure was used in deciding the motion. First, a
non-moving party must receive notice at least 10 days before a motion to dismiss under
12(b)(6) is converted into a motion for summary judgment. See Rose v. Bartle, 871 F.2d
331, 335, 342 (3d Cir. 1989); Hancock Industries v. Schaeffer, 811 F.2d 225, 229 (3d Cir.
1987) citing Crown Central Petroleum Corp. v. Waldman, 634 F.2d 127, 129 (3d
Cir.1980). Here, such notice was not provided. Indeed, because the parties were not
directed to provide supporting affidavits, as FRCP 56 requires, but instead were told to
make informal responses, it appears that Sookhoo was misled into believing that BD’s
motion would not be converted into a summary judgment motion. See App. 126; 146;
Appellant’s Br. at 3. This prevented Sookhoo from gathering and presenting to the Court
the proper evidence and arguments he needed to defend against a motion for summary
3
judgment.
Second, BD’s motion raised a merits issue, not an issue of subject matter
jurisdiction. Simply put, by finding that there was no contractual relationship between the
parties, the District Court was determining the merits of the case. This was important, as
the standard for dismissing for a lack of jurisdiction is different from the standard for
granting summary judgment. See Nesbit v. Gears Unlimited Inc., 347 F.3d 72, 76-77 (3d
Cir. 2003).
In any event, we do not base today’s decision on the above grounds because we
hold that there was a genuine issue of material fact left for trial and that BD was therefore
not entitled to summary judgment. We exercise plenary review over a decision to grant
summary judgment. “In considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of the evidence; instead,
the non-moving party’s evidence is to be believed and all justifiable inferences are to be
drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quotation omitted). Furthermore, “[t]he burden is on the moving party to produce
credible evidence that would entitle it to a directed verdict if not controverted at trial.”
Pennbarr Corp. v. Insurance Co. of N. Am., 976 F.2d 145, 149-50 (3d Cir. 1992).
Here, we find that Sookhoo’s claim raises an issue of material fact. At bottom, the
credibility of Sookhoo’s claim that a contract existed is an issue for the factfinder. Not
only has BD failed to show that no contract existed, but the record contains evidence of
4
some form of distributorship agreement and possibly a long-standing, exclusive
relationship between the parties. See, e.g., App. 94; 298-309. Furthermore, the one
document in the record that suggests that the agreement was between Sookhoo and BD’s
foreign subsidiary is insufficient for summary judgment. See App. 225-228. Not only is
the document vague and without foundation, but the District Court erroneously ignored
Sookhoo’s claim and evidence that BD’s foreign subsidiaries were so controlled by BD as
to make them the same company. 2 See App. 279-286; App. 298-300; App. 418-419.
For these reasons, we reverse the summary judgment order and remand for further
proceedings.
2
While we agree that Sookhoo never alleged in its briefs to the District Court that
BD and its foreign subsidiaries were a “single entity,” there is no legal rule requiring such
magic words. Sookhoo plainly argued that BD and its foreign subsidiaries were one
company and this is an issue for the jury.
5