The opinion of the court was delivered by: Leisure, District Judge.
This is an action for breach of a sales contract and for
replevin, with jurisdiction of this Court based on diversity of
citizenship. Defendant has counterclaimed, alleging breach of
warranty, and other counterclaims. Plaintiff has now moved for
judgment on the pleadings on the first, third, sixth, and ninth
causes of action pursuant to Fed.R.Civ.P. 12(c), or, in the
alternative, for summary judgment on those causes of action
pursuant to Fed.R.Civ.P. 56.
Plaintiff Dubied Machinery Company, Inc. ("Dubied") is a New
York corporation which is in the business of selling and
servicing commercial knitting equipment, including the
computers and software necessary to operate such equipment.
Defendant Vermont Knitting Company ("VKC") was a Vermont
corporation that was in the
business of manufacturing sweaters and other knitted garments.
In or about September 1984, Norton Davis ("Davis"), president
of VKC, contacted Dubied regarding the possible purchase of
knitting machinery by VKC. Two days after that conversation,
Davis and his wife met with Robert Schneider, the president of
Dubied. During this meeting, Schneider showed Davis and his
wife four knitting mills in the New York City area that used
Dubied knitting equipment. About a month after the tour of the
mills, VKC ordered two Jet-3 knitting machines (the "Jet-3
machines") and one Jet-3F knitting machine from Dubied, as well
as a computer and software to run the knitting machines.
See Affidavit of Martin R. Lee, Esq., sworn to on March 15,
1990, Exh. 1.
Two of the Jet-3 machines were delivered to VKC in late May,
1985, some months after their original order date. The computer
and software were delivered in August 1985. Plaintiff's
Statement of Undisputed Facts, ¶ 7. While VKC was awaiting
delivery of the Jet-3 machines, Dubied loaned a used Jet-2
knitting machine (the "Jet-2 machine") to VKC to allow VKC to
continue production while it awaited the Jet-3 machines. It
appears that the Jet-3F knitting machine was never
delivered.*fn1 Also, from April to September 1985, Dubied
supplied VKC with goods and services related to the operation
and maintenance of knitting equipment. None of the equipment or
services have been paid for, except for nominal downpayments.
Defendant asserts that none of the Dubied equipment it
received ever worked properly, and thus prevented defendant
from operating its business in an efficient fashion. In
particular, defendants claim that the Jet-3 machines were
improperly installed, required constant maintenance and failed
to operate consistently. Defendant further asserts that the
Jet-2 machine was in poor condition when delivered and required
substantial modification before it became useful to the
The instant action was filed on October 31, 1985. In late
November 1987, defendant filed for protection under Chapter 11
of the Bankruptcy Code, 11 U.S.C. § 101 et seq. The bankruptcy
litigation has been converted to a liquidation under Chapter 7
of the Bankruptcy Code, and remains pending in the District of
Vermont. The bankruptcy court issued an order granting relief
to the present parties from an automatic stay of litigation so
that they might pursue their claims and counterclaims in this
Court. By order dated February 21, 1989, this Court denied
defendant's motion to transfer this action to the United States
District Court for the District of Vermont. Subsequently,
plaintiff filed the instant motion.*fn2
Plaintiff has moved for judgment on the pleadings, or, in the
alternative, for summary judgment. A motion for judgment on the
pleadings under Fed.R.Civ.P. 12(c) must be decided solely on
the pleadings before the Court, plus any materials implicitly
or explicitly incorporated by reference into those pleadings.
See Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985). A
party is entitled to judgment on the pleadings under Rule 12(c)
"only if it has established `that no material issue of fact
remains to be resolved and that [it] is entitled to judgment as
a matter of law.'" Juster Associates v. Rutland, 901 F.2d 266,
269 (2d Cir. 1990), quoting 5 C. Wright & A. Miller, Federal
Practice and Procedure, § 1368, at 690 (1969). Where the Court
is confronted with matters outside of
the pleadings that it wishes to consider, it should treat the
motion as one for summary judgment pursuant to Fed.R.Civ.P. 56.
See Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689
(2d Cir. 1990); National Association of Pharmaceutical Mfrs.,
Inc. v. Ayerst Laboratories, 850 F.2d 904, 911 (2d Cir. 1988).
Fed.R.Civ.P. 12(c) requires that when a court decided to
treat a motion to dismiss as one for summary judgment, "all
parties shall be given reasonable opportunity to present all
materials made pertinent to such motion by Rule 56." Rule
12(c). See Ayerst, supra; Villante v. Department of
Corrections, 786 F.2d 516, 521 (2d Cir. 1986). In the instant
case, defendant was on notice that the Court might choose to
consider the instant motion as one for summary judgment, as
plaintiff framed its motion as one for both judgment on the
pleadings and for summary judgment. Further, the material
submitted by defendant's current counsel was of the type
relevant only to a motion for summary judgment. Given the
volume and relevance of the non-pleading material submitted in
conjunction with this motion, the Court chooses to consider the
instant motion as one for summary judgment.
Rule 56(c) provides that summary judgment "shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." "`Summary judgment is appropriate
when, after drawing all reasonable inferences in favor of the
party against whom summary judgment is sought, no reasonable
trier of fact could find in favor of the non-moving party.'"
Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 10 (2d Cir.
1989), (quoting Murray v. National Broadcasting Co.,
844 F.2d 988, 993 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391,
102 L.Ed.2d 380 (1988)).
The substantive law governing the case will identify those
facts which are material, and "[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. . . .
While the materiality determination rests on the substantive
law, it is the substantive law's identification of which facts
are crucial and which facts are irrelevant that governs."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 202 (1986). "[T]he judge's function is
not himself to weigh the evidence and determine the truth of
the matter but to determine whether there does indeed exist a
genuine issue for trial." Id. at 249, 106 S.Ct. at 2511; see
also R.C. Bigelow, Inc. v. Unilever N. V., 867 F.2d 102, 107
(2d Cir.), cert. denied sub nom. Thomas J. Lipton, Inc. v. R.
C. Bigelow, Inc., ___ U.S. ___, 110 S.Ct. 64, 107 L.Ed.2d 31
(1989). The party seeking summary judgment "always bears the
initial responsibility of informing the district court of the
basis for its motion" and identifying which materials it
believes "demonstrates the absence of a genuine issue of
material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Trebor
Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 511 (2d
Cir. 1989). "[T]he burden on the moving party may be discharged
by `showing' — that is, pointing out to the district court
— that there is an absence of evidence to support the
nonmoving party's case." Celotex, supra, 477 U.S. at 325, 106
S.Ct. at 2554.
Indeed, once a motion for summary judgment is properly made,
the burden then shifts to the nonmoving party, which "must set
forth facts showing that there is a genuine issue for trial."
Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511. The
nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Industrial Co. v. ...