of credit was no longer valid or that the original documents of title for the merchandise had been returned to T.B.I." (Aff. in Supp. of Def. & Third-Party Pl. Emery Worldwide's Cross-Mot. for Partial Summ. J. of 10/31/94, at P 11.)
As explained above, Emery is liable because it delivered the blouse shipment to the wrong party. Thus, the sole issue relied upon by Emery ("that third-party defendants acted or omitted to act in such a way that lead to Emery's eventual release of the goods"), does not suffice to avoid summary judgment in favor of T.B.I. T.B.I. therefore is entitled to summary judgment against Emery as to liability for the misdelivery of the goods.
Emery concedes that "plaintiff's consignment was delivered to someone other than the consignee on the Sinotrans' [sic] air waybill." (Def. Reply Memo of Law, at 1.) However, Emery seeks to continue this action because the reasons for misdelivery are not "clear[,] since discovery is not complete." (Def. Reply Memo of Law, at 1.)
The problem with this position, and in general with Emery's argument that discovery is not complete, is that Emery fails to set out how a genuine issue of material fact will be raised by the information it seeks. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. . . . It is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, 477 U.S. at 248. The bald, conclusory, and unsupported hopes for "such genuine issues of material fact [that] conflict directly with plaintiff's and third-party defendants' allegations set forth in their summary judgment motions," (Def.'s Rule 56(f) Aff. P 7), are insufficient to prove the existence of a genuine issue of material fact. Defendant must do more. See Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) ("If facts essential to support opposition to the summary judgment motion are not available, the nonmoving party may seek a continuance under Rule 56(f) to permit affidavits to be obtained or discovery to be had, but may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." (citations omitted; emphasis added)).
As set forth in Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919 (2d Cir. 1985), the nonmoving party must show what facts are sought, how they are to be obtained, and how those facts are reasonably expected to create a genuine issue of material fact. 769 F.2d at 926. Emery's opposition falls short of each of these requirements. Stephen Fearon's affidavit is absolutely devoid of any facts to be sought, or how such facts could conceivably create a genuine issue of material fact.
Furthermore, Emery was afforded sufficient opportunity to have completed the discovery it now seeks prior to submission of the motion. Emery filed its third-party Complaint on July 28, 1995. On August 24, 1994, in a telephone conference in this matter, this Court ordered expedited discovery to allow Emery the depositions it insisted were necessary to prepare its Local Rule 3(g) statement, and made Emery's responsive 3(g) statement due on September 26, 1994. In response to this direction, Emery deposed the Plaintiff on September 1, 1994, and on August 31, 1994 noticed Amro's deposition for September 7, 1994. For reasons not apparent to the Court, however, Amro's deposition did not occur.
On September 15, 1994, Emery served further notices, this time on Amro, Classic, and Bank of Communications for depositions to take place on September 27 and 28, 1994. (Def.'s Rule 56(f) Aff. Exs. C-E.) On September 23, 1994, Emery applied by letter for an extension of its time to file its responsive Local Rule 3(g) statement and to allow for the depositions, noticed for September 27th and 28th. At best, this request was too little, too late since, on August 24, 1994, the Court had directed Emery to submit its 3(g) statement by September 26th.
A briefing schedule was subsequently set for these motions, giving the movants until October 20, 1994 to file their motions. Emery did not reschedule the depositions during that interim period either. Because Emery failed to avail itself of the time given for discovery, and because Emery fails in its motion papers to suggest any genuine issue as to any fact, much less any material fact, Rule 56(f) provides no harbor for it to seek further delay of resolution of T.B.I.'s claim for damages.
C. Emery's Cross-Motion for Summary Judgment to Limit Liability
Emery cross-moves for summary judgment limiting T.B.I.'s recovery on the basis of a liability limitation provision contained on the face of the underlying Sinotrans air waybill.
That clause reads:
It is agreed that the goods described herein are accepted in apparent good order and condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF. THE SHIPPER'S ATTENTION IS DRAWN TO THE NOTICE CONCERNING CARRIERS' LIMITATION OF LIABILITY. Shipper may increase such limitations of liability by declaring a higher value for carriage and paying a supplemental charge if required.
(Chu Aff. Ex. E.) The conditions of contract provided on the reverse side of the waybill provides:
The charges for carriage having been based upon the value declared by the shipper, it is agreed that any liability shall in no event exceed the shipper's declared value for carriage stated on the face hereof and in the absence of such declaration by shipper liability of Carrier shall not exceed U.S. $ 20.00 or their equivalent per kilogram of goods destroyed, lost, damaged or delayed . . . .