Health-Chem also argues that summary judgment is
inappropriate because additional discovery is required.
Health-Chem, however, has not complied with the requirements
of Fed.R.Civ.P. 56(f). It has failed to submit an affidavit
showing the nature of the uncompleted discovery, how that
discovery could reasonably be expected to create a genuine
issue of material fact, and what efforts have been made to
obtain those facts earlier. Moreover, considering that this
case has been pending for eighteen months, and that the
request to consider parol evidence to alter the Settlement
Agreement has been denied, no further discovery is necessary.
See, e.g., Samuels v. Eleonora Beheer, B. V.,
500 F. Supp. 1357, 1362 (S.D.N.Y. 1980) (Weinfeld, J.) (the
discovery rules "are not a hunting license to conjure up a
claim that does not exist."), aff'd, 661 F.2d 907 (2d
Cir. 1981). Baker's motion for summary judgment is therefore
granted and the complaint is dismissed.
F. Speiser Summary Judgment Motion
Speiser moves for summary judgment dismissing Baker's fourth
counterclaim as against him in his individual capacity. Baker
contends that Speiser signed the Outline of Settlement without
limiting the effect of his signature in any way and therefore
is personally liable for Health-Chem's performance as well as
his own. This argument presumes that the Settlement Agreement
is an "executory accord", whereby if a default in making the
specified payment to Baker under the Settlement Agreement
occurs, Baker is entitled to sue Speiser individually under
the Outline of Settlement. It is thus only under the Outline
of Settlement that Baker is moving for summary judgment
against Speiser. Baker's Memorandum in Further Support of
Baker's Motion for Summary Judgment against Speiser and
Answering Memorandum in Opposition to Speiser's Cross-Motion
for Summary Judgment at 1-2.
Baker relies on the legal presumption that the Settlement
Agreement is an executory accord because, he argues, it
provides for the discharge of an existing claim, namely,
default on the letter of credit under the Outline, by a future
performance. But to the extent Baker seeks to hold Speiser
liable under the Outline, his claims are barred by the parol
evidence rule. Baker is precluded from asserting a claim under
a prior agreement, the Outline of Settlement, because that
document has been superseded by an integrated contract, the
Settlement Agreement. First, the Outline of Settlement
specifically provides that it "will be incorporated into a
definitive agreement to be negotiated and executed among the
parties as soon as possible." Outline ¶ 1. Second, the
Settlement Agreement contains a "merger" or "integration"
provision which provides: "This Agreement embodies the entire
agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and
understandings, oral or written, in respect thereof. This
Agreement may be changed only by an agreement in writing
signed by the party against whom any waiver, change,
amendment, modification or discharge may be sought." §
Moreover, even if the terms of the Outline were enforceable,
the Outline itself makes clear that Speiser did not sign as an
individual. Each of the Outline's paragraphs distinguishes the
three parties and separates the rights and obligations among
them. Speiser did not obligate himself to pay the deficiency;
his only obligation under the Outline was to exchange general
releases with Baker, to dismiss various lawsuits, and to
participate in the contemplated reorganization of Health-Med.
Outline of Settlement, ¶¶ 2, 8, 9.
Similarly, the Settlement Agreement, by its very terms,
provides that Speiser is not legally obligated to perform
Health-Chem's obligations. Section § 10.11 of the
Settlement Agreement states: "The signature of any party to
this Agreement shall represent his or its obligation to be
bound by the covenants and agreements on his or its part to be
performed hereunder and not of the obligation of any other
party." Baker has conceded that § 10.11 "releases"
Speiser of any personal liability for Health-Chem's alleged
breach of the Settlement Agreement.*fn10 Baker's Memorandum
in Support of Motion for Summary Judgment at 53-54. Speiser's
motion to dismiss Baker's fourth counterclaim as against him
in his individual capacity is therefore granted.
In sum, Health-Chem's motion to amend its complaint is
denied and Baker's motion to dismiss the complaint is granted.
Baker is granted summary judgment on his counterclaims except
for the fourth counterclaim, against Speiser individually,
which is dismissed. Baker is to submit judgment on five (5)
days notice ten (10) days from the date hereof.