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June 12, 1990


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 company.

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. ...

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