United States District Court, S.D. New York
June 23, 2004.
BANGKOK CRAFTS CORPORATION, Plaintiff/Counterclaim Defendant,
CAPITOLO DI SAN PIETRO IN VATICANO, Defendant/Counterclaimant. CAPITOLO DI SAN PIETRO IN VATICANO, Defendant/Counterclaimant, v. TREASURES OF ST. PETER'S IN THE VATICAN LTD., et al., Additional Counterclaim Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The defendant Capitolo di San Pietro in Vaticano ("Capitolo")
has moved under Rule 56, Fed.R. Civ. P., for partial summary
judgment on its counterclaims against plaintiff Bangkok Crafts
Corporation ("BCC"). Upon the following findings and conclusions,
the motion is granted and the August 2000 agreement is declared
void, the 1996 license properly terminated, and alternatively
expired before its renewal.
BCC initiated this action against Capitolo in the Supreme Court
of the State of New York, County of New York, and it was removed
by Capitolo to this Court on January 2, 2003.
BCC alleged that Capitolo vacated a license
agreement dated August 28, 2000 (the "2000 license
and February 8, 1996 one "1996 License"). Discovery proceed in
the instant motion was filed on October 20, 2003 and heard
and marked fully submitted on February 11, 2004. The Facts
The facts are set forth in the Local Rule 56.1 Statement of
Capitolo and in the opposing affidavit of John Loata ("Loata")
and are not disputed except as noted.
Capitolo is the chapter or clergy of St. Peter's Basilica in
the Vatican City; its between 30 and 40 members are all priests
in the Catholic Church, appointed by the Pope. From among the
members, five Camerlenghi, or administrators, are appointed. The
Camerlenghi are responsible for administering the day-to-day
affairs of Capitolo, subject to the ultimate authority of the
Capitolo members themselves.
The Capitolo owns numerous valuable and unique works of art
predominantly crosses, chalices, communion trays, and other
pieces used in religious services, as well as commemorative medal
coins the "Works"). In 1996, the Capitolo's chief chancellor, or
Camerlengo Maggiore, Monsignor Michele Basso ("Basso"), was
approached by Loata on behalf of BCC regarding a license to
manufacture and sell reproductions of the Works. On February 8,
1996, Loata and Basso executed a Promessa Di Contratto (the
"Promessa"), written in Italian, setting forth the terms of the
arrangement for BCC to manufacture and sell reproductions of the
Works. A few months later, on May 8, 1996, Loata and Basso
executed an English language license agreement (including the handwritten "amendments" thereto) (the "1996 License") under
which Capitolo granted to BCC an exclusive right and license,
effective is of February 8, 1996, to manufacture and sell
reproductions of the Works ("Reproductions").
The 1996 License required BCC to pay royalties to Capitolo
equal to five percent of all net sales of the Reproductions on a
quarterly basis within 30 days after the end of each quarter
and be accompanied by a certified sales report. This
typed amendment to Section 6 also permitted BCC to enter into
sublicenses with unaffiliated parties, and obligated BCC to pay
royalties to Capitolo equal to five percent of the fees BCC
receives from its sublicensees.
BCC provided no accounting for sales, and no royalty payments
at all during the first 15 months that the 1996 License is in
effect. After counsel for Capitolo wrote to BCC on
or about May 2, 1997 demanding the required
royalty payments and certified sales
reports BCC produced its first sales statement to
Capitolo. The sales report from BCC was not
Between July 22, 1997 and July 12, 1998, BCC failed
to make timely payments and accounting was
provided no royalty payments or certified sales
reports for during this one-year period. On
August 5, 1998, BCC produced its next accounting, purporting
to proffer December 19, 1997 through July 12, 1998
covering a seven-month period and omitted any report for seven months May 9, 1997
through December 18, 1997. BCC did not report or pay royalties
for the missing seven months. BCC also failed to make the $2,500
royalty payment until October 9, 1998.
After the August 1998 report and October 1998 payment, BCC did
not send another royalty payment or certified statement of sales
to Capitolo until July 9, 1999. This royalty payment and sales
report covered only the seven-month period from November 1, 1998
through May 31, 1999. BCC did not provide royalty payments and
did not account for the three-month period between August 1, 1998
and October 31, 1998.
On October 6, 1999, BCC submitted a royalty payment and
certified sales report to Capitolo covering the period from June
1, 1999 through September 30, 1999. On or about February 9, 2000,
BCC submitted a royalty payment and sales report covering the
period from October 1, 1999 through December 31, 1999.
BCC has not submitted any royalty payments or certified sales
reports to Capitolo since its February 9, 2000 report, and BCC
has not provided any royalty payments or reports covering any
period since December 31, 1999.
The 1996 License provides: "BCC will fax to Monsr. a copy of
all reproductions for review and will provide a sample of the reproduction thereafter." The 1996 License also prohibits BCC
from "employ[ing] any promotional or advertising material in the
sale of the Reproductions that is unethical, immoral or offensive
to good taste and which is not consonant with moral and religious
BCC has not submitted any sublicensed reproductions or related
advertising material to Capitolo for the required review.
The initial term of the 1996 License was for five years,
commencing on February 8, 1996, and renewable for another
five-year term at BCC's election. Section 9 of the 1996 License
The term of this Agreement shall continue in effect
for a period of 5 years from the date first above
written, and shall be renewable at the election of
BCC, for an additional period of 5 years.
License § 9.
Capitolo's counsel wrote to BCC's counsel on September 3,
1998 stating expressly that Capitolo's
contractual relationship with BCC would conclude at the
expiration it the original five-year term on February 7, 2001.
During meetings between Loata and Capitolo's representative,
Commendative Angela Sironi ("Sironi") on
May 20, and 21, 2000, Sironi again informed Loata of Capitolo's
refusal to renew or extend the 1996 License because of Capitolo's
complete dissatisfaction with BCC's performance under
the 1996 License. Following this meeting, counsel for Capitolo wrote to
BCC on July 27, 2000, once again stating Capitolo's refusal to
extend or renew the 1996 License beyond its original five-year
According to BCC, on August 28, 2000 it obtained Capitolo's
agreement to a new, vastly expanded license agreement with a term
renewable at BCC's election for up to 45 years (the "2000
License"), executed on Capitolo's behalf by Cardinal Virgilio
Noè (Archpriest of the Capitolo) ("Noè") and Monsignor Giuseppe
Bordin (then Camerlengo Maggiore) ("Bordin"). On or about October
16, 2000, Capitolo received a letter from counsel for a BCC
sublicensee, Maxx International, Inc. ("Maxx"), requesting
Capitolo's confirmation of the 2000 License. Noè and Bordin deny
any prior knowledge of the existence of the 2000 License and deny
signing it. Counsel for Capitolo informed both counsel for Maxx
and BCC that the supposed extension and expansion was a forgery.
In February 2001, BCC produced to Capitolo a January 2, 2001
letter supposedly from the Vatican's Secretary of State, Cardinal
Angelo Sodano ("Sodano") purporting to validate the August 28,
2000 license. Counsel for Capitolo, acting for it and for the
Secretariat of the Vatican State, notified BCC in writing that
the supposed letter of Sodano was forged as well.
Sodano, Noè and Bordin have declared their purported
signatures to be forgeries. Capitolo's Italian handwriting expert and an American forensic document expert have also concluded that
the signatures are forged.
Capitolo repudiated the 2000 License and terminated the 1996
License on February 7, 2001. On June 13, 2001, BCC sent a letter
to Capitolo seeking renewal of the 1996 License for another
five-year term. Capitolo, by letter of its counsel, rejected the
BCC, through its affiliate, Treasures of St. Peter's In The
Vatican, Ltd. ("TSV"), continued its sublicensing activities and
has, since November 2000, received royalty payments and fees from
purported sublicensees. Until this action was
filed, BCC/TSV did not report to Capitolo any receipt of funds,
or sales activity for any period after December 1999 and has made
no royalty payments whatsoever to Capitolo relating thereto.
During the course of the 1996 License term, BCC paid Capitolo
over $50,000 and according to TSV showed Basso the
reproductions, and obtained his approval for their use.
According to Loata, BCC engages Lilo Rossi ("Rossi"),
Antonio Battaglia ("Battaglia" and retrieved
Giuseppe Eustacchi "Eustacchi") as a translator to extend
the 1996 License. Battaglia met with Noè and
was informed that in order to obtain an extension to the 1996
License, a new arrangement would have to be drafted, and BCC would have to pay Noè $500,000. According to
BCC Noè refused wire transfers and requested cash and refused to
meet with Loata.
According to Loata, BCC then retained Marco Sperduti
("Sperduti") to act as BCC's representative who advised BCC that
a new agreement had been reached with Noè whereby BCC would be
granted a renewal of the license for a 15-year term, with the
option to renew for two additional 15-year terms. In
consideration, BCC delivered to Noè $480,000 through Sperduti.
On the advice of Sperduti, BCC has alleged that it made an
additional payment of $102,000 to Capitolo.
According to BCC, it received a letter from Cardinal Camillio
Ruini, a Vicar of the Pope, ("Ruini") who advised Loata and BCC
to continue operating under the 1996 License until June 21, 2001,
and on January 2, 2002, BCC received a letter from Sodano which
confirmed the authenticity of the 2000 License. Sodano has denied
any knowledge of this letter and has affirmed that the signature,
purporting to be his, is a forgery.
Summary Judgment is Appropriate
Summary judgment is granted only if there is no genuine issue
of material fact, and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Silver v. City
Univ., 947 F.2d 1021, 1022 (2d Cir. 1991); see generally 11
James Wm. Moore, et al., Moore's Federal Practices § 56.11 (3d
ed. 1997 & Supp. 2004). The court will not try issues of fact on
a motion for summary judgment, but, rather, will determine
"whether the evidence presents a sufficient disagreement to
require submission to a [factfinder] or whether it is so
one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
"The party seeking summary judgment bears the burden of
establishing that no genuine issue of material fact exists and
that the undisputed facts establish her right to judgment as a
matter of Law." Rodriguez v. City of New York, 72 F.3d 1051,
1060-61 (2d Cir. 1995). In determining whether a genuine issue of
material fact exists, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton,
281 F.3d 12, 18 2d Cir. 2002). Thus, "[s]ummary judgment may be granted
if, upon reviewing the evidence in the might most
favorable to the non-movant, the court determines that
there is no genuine issue of material fact
and the movant is untitled to judgment as a matter of
law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). A material fact is one that would "affect the outcome of the
suit under the governing law," and a dispute about a genuine
issue of material fact occurs if the evidence is such that "a
reasonable [factfinder] could return a verdict for the nonmoving
party." Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v.
Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court is "to grant
summary judgment where the nonmovant's evidence is merely
colorable, conclusory, speculative or not significantly
probative." Schwimmer v. Kaladjian, 988 F. Supp. 631, 638
(S.D.N.Y. 1997) (citing Anderson, 477 U.S. at 249-50).
BCC has sought to defeat Capitolo's motion under Fed.R. Civ.
P. 56(f). To obtain Rule 56(f) relief, the party seeking
additional discovery must file an affidavit explaining: (a) what
facts are sought; (b) how those facts will create a factual issue
precluding summary judgment; and (c) what efforts have been made
to obtain these facts, and why such efforts failed. Cramer v.
Devon Grp., Inc., 774 F. Supp. 176, 180 (S.D.N.Y. 1991) (citing
Hudson River Sloop Clearwater, Inc. v. Department of the Navy,
891 F.2d 414, 422 (2d Cir. 1989)); see also Burlington Coat
Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 925
(2d Cir. 1985).
BCC has not moved to enforce any further discovery from
Capitolo. BCC's failure to do so precludes application of Rule
Rule 56(f). See Cramer, 774 F. Supp. at 180 (stressing
importance of a party's use of mechanisms for enforcing right to discovery under
Fed.R.Civ.P. 37 in connection with Rule 56(f) request for
relief) (citations omitted).
With respect to the three Cardinals of the Catholic Church that
BCC claims it should have the opportunity to depose prior to
resolution of this motion, not one of them is under the control
of Capitolo, and BCC's counsel has been on notice for months of
the need to proceed formally to arrange to take discovery in
Italy and the Vatican. BCC's failure to do so is not a valid
basis for denying resolution of Capitolo's motion. See
Burlington Coat Factory Warehouse Corp., 769 F.2d at 925
affirming the lower court's denial of plaintiff's
Rule 56(f) request because "whatever discovery went
undone was the consequence of [plaintiff's] own conduct and was
in any event inconsequential"); see also Trebor Sportswear Co.
v. The Limited Stores, Inc., 865 F.2d 506, 511
(2d Cir. 1989) (denying plaintiff's request for further discovery
because plaintiff "had a fully adequate opportunity for
BCC has not responded Capitolo's statement of undisputed
facts and has not offered competent or probative evidence to contest
the testimony of Sodano and Bordin with respect to the
forged 2000 License. BCC also does not dispute
that its only attempt to exercise the option to
renew the initial term of the 1996 License for an additional five-year term was submitted
to Capitolo on June 16, 2001.
BCC has not submitted any admissible evidence to support its
claim that Rossi, Battaglia and Sperduti undertook negotiations
on BCC's behalf and has not obtained their testimony in
discovery. Capitolo has noted that Rossi, Battaglia and Sperduti
do not speak English and Loata does not speak Italian, and that
Loata's claims are based on Eustacchi's statements. No affidavit
or deposition testimony is cited.
In contrast to Loata's hearsay assertions, the testimony of
Capitolo's handwriting expert and forensic document examiner have
not been challenged, nor has the denial by Sodano of the
authenticity of the January 2, 2001 letter.
There is no competent evidence of any payments to Capitolo on
behalf of BCC in order to obtain the alleged 2000 License, or any
request or demand for such payments from Capitolo. Loata's
testimony is entirely hearsay.
Loata's declaration makes reference to an alleged "Capitolo
Official, Monsignor Yuri Yugova," with whom Sperduti was
supposedly dealing. There is no evidence submitted that such a
Monsignor ever existed, and Loata does not claim that he ever met
him or was even in his presence. Loata also claims somehow to have relied upon a letter Loata
says he received, not from Capitolo, but supposedly from Ruini,
with respect to the validity and term of the 1996 License. No
evidence has been adduced that Ruini had any position or role
whatsoever with Capitolo.
BCC's factual submission is based on the declaration of Loata
and the attached documents. His hearsay declaration fails to
defeat the facts as set forth in Capitolo's factual statement.
The 2000 License Is Void
There are no probative facts adduced to dispute that the
signatures Noè and Bordin on the 2000 License are
forged, thus rendering the contract void ab
initio. See Orlosky v. Empire Sec. Sys., Inc.,
230 A.D.2d 401, 403-04, 657 N.Y.S.2d 840 (3d
Dep't. 1997) (collecting cases); see also Opal's On Ice Lingerie
v. Body Lines, Inc., 320 F.3d 362, 370 (2d Cir. 2003).
Both Noè and Bordin deny signing the 2000 License
or any related documents and state that Capitolo "never authorized,
accepted or ratified this forged License Agreement, but rather repudiated
it promptly upon learning of it's existence, through communications from
its authorized attorneys to BCC." Both a preeminate Italian handwriting
expert and a nationally renowned American forensic document examiner
have independently concluded that the signatures of Noè and Bordin on the 2000 License and
related documents are false.
BCC has offered no competent evidence in support of its
assertion. Without any admissible evidence, it is well settled
that BCC cannot defeat summary judgment that is otherwise
appropriate. See Nora Beverages, Inc. v. Perrier Group of
America, Inc., 269 F.3d 114, 123 (2d Cir. 2001); see also Fed.
R. Civ. P. 56(e).
Although BCC continues to rely on a January 2, 2001 letter
supposedly bearing the signature of Sodano, Sodano has denied
signing the January 2, 2001 letter and both experts identified
above have confirmed the signature is indeed a forgery.
Loata's claim that the letter is authentic because the DHL
receipt accompanying the letter contains a handwritten notation
that it was "from" the Vatican's Secretariat does not raise a
triable issue as to the authenticity of the January 2, 2001
letter or the 2000 License. Loata is not a competent declarant
regarding the source of the January 2, 2001 letter. Even assuming
there were evidence to establish the DHL receipt did originate in
some Vatican office, that fact could not establish that the
letter itself is genuine. BCC offers a tale of alleged negotiations with and payments to
Capitolo in connection with the creation and execution of the
2000 License. Loata does not purport to have been personally
involved in these negotiations or payments, and instead relied
upon the representations of Rossi, Battaglia and Sperduti.
However, no declaration or deposition from any one of these
supposed negotiators has been submitted.
BCC Failed to Timely Renew the 1996 License Which Expired by
Its Own Terms on February 7, 2001
BCC has also failed to raise a triable issue regarding the
untimeliness, and thus invalidity, of its attempted renewal of
the 1996 License for an additional five-year term. The initial
term of the 1996 License commenced on February 8, 1996, and
continued in effect for a period of 5 years from that date.
Specifically, Section 9 of the 1996 License provides:
The term of this Agreement shall continue in effect
for a period of 5 years from the date first above
written, and shall be renewable at the election of
BCC, for an additional period of 5 years.
1996 License at 4. BCC was required to provide notice of renewal prior
to expiration of the first term of the License before February
8, 2001 or the 1996 License would expire by its terms. BCC claims that sometime after the execution of the 1996
License, Basso told him that the "License Agreement was
registered in the Capitolo on June 21, 1996." Given that Loata
does not speak Italian and Basso does not speak English, this
information could only have been conveyed from Basso to Loata
through an intermediary. Nevertheless, even assuming Loata is a
competent witness to testify to this purported fact (and assuming
for purpose of this motion that the fact is true), whatever the
significance of such alleged registration, it cannot alter the
plain language of the 1996 License term. See Independent Energy
Corp. v. Trigen Energy Corp., 944 F. Supp. 1184, 1191 (S.D.N.Y.
1996) (where the language of a contract is unambiguous, "the
intent of the parties must be determined by their final writing
and no parol evidence or extrinsic evidence is admissible")
(quoting International Klafter Co., Inc. v. Continental Cas.
Co., 869 F.2d 96
, 100 (2d Cir. 1989)); see also W.W.W. Assoc.,
Inc. v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 443,
566 N.E.2d 639, 641 (1990) (extrinsic evidence may not be
considered in order to create an ambiguity) (citations omitted).
Loata also claims to have relied upon a January 8, 2001 letter
received from Ruini which instructed BCC to operate under the
1996 License through June 21, 2001. Ruini did not in January
2001, or at any other time, have any position or role with
Capitolo, and BCC offers no evidence that would even suggest
otherwise. Thus, even if this letter was genuine, it is
irrelevant to the term of the 1996 License between BCC and Capitolo, or any
other issue relating to this dispute.
BCC concedes that it made no attempt to renew the 1996 License
until June 13, 2001, more than four months after the 1996 License
had expired. When Capitolo received this untimely notice from
BCC, it promptly responded by informing BCC that the notice was
invalid, and that the 1996 License had been terminated and would
not be renewed.
These facts establish as a matter of law that the 1996 License
expired by its terms on February 7, 2001, and
was no longer in effect thereafter, regardless of Capitolo's
proper termination of the license due to BCC's numerous material
Capitolo Properly Terminated the 1996 License
BCC concedes that a failure to make payments under a Licensing
contract is a material breach. See ARP Films, Inc. v.
Marvel Entm't Grp., Inc., 952 F.2d 643, 649 (2d Cir. 1991)). BCC
further concedes that it failed to provide payment and sales reports as
required by the 1996 License. That said, BCC claims that its royalty
payments to Capitolo totaling $50,000, albeit untimely, somehow
fully satisfied BBC's payment obligations under the 1996 License. BCC failed to provide royalty payments and account at all for
24 ½ months during the original five-year term of the 1996
License, and failed to provide timely and certified reports and
make timely payments for an additional 30 ½ months, more than
half of the original term.
BCC now attempts to argue that Capitolo's acceptance of late
royalty payments, when BCC chose to pay at all, somehow operated
to affirm the 1996 License as a matter of law. However, the cases
cited by BCC do not support this proposition. For example, in
Marathon Enterprises, Inc. v. Schroter GMBH & Co., 01 Civ.
0595, 2003 WL 355238, at *6 (S.D.N.Y. Feb. 18, 2003), the court
concluded only that factual issues remained regarding whether the
defendant acquiesced to untimely payment under the contract by
accepting the plaintiff's late payment without protest, making
summary judgment inappropriate.
In response to BCC's failure to make its payment and to report,
starting in September 1998 Capitolo's representatives repeatedly
protested BCC's performance and notified BCC of Capitolo's
refusal to accept any renewal, extension or expansion of the 1996
License upon expiration of the initial five-year term. Given
Capitolo's oft-expressed protests and express notices of intent
to terminate, no testimony is necessary to clarify the intent and
motivations of the parties. See Marathon Enter., 2003 WL
355238, at *6. BCC has argued that its late payments somehow served to cure
its numerous breaches of the 1996 License. The case cited by BCC
fails to support its proposition. In Sinco, Inc. v. Metro-North
Commuter Railroad Co., 133 F. Supp.2d 308, 313 (S.D.N.Y. 2001),
the court explicitly stated that the party attempting to effect a
cure must show that its cure conforms to the terms of the
contract. Here, the undisputed record highlights gaps in payment
and reporting that were never accounted for in BCC's delayed
payment and accountings, clearly demonstrating that BCC failed to
cure its breaches in accordance with the terms of Section 6 of
the 1996 License.
Thus, BCC's failures to timely and adequately report and pay,
individually and certainly collectively, constituted material
breaches of the 1996 License and afforded Capitolo the right to
terminate the 1996 License. See ARP Films, 952 F.2d at 649;
see also V.S. Int'l, S.A. v. Boyden World Corp., 862 F. Supp. 1188,
1197 (S.D.N.Y. 1994) (party's failure to make required
payments held a material breach, authorizing termination).
Contrary to BCC's assertion, the "election of remedies"
doctrine does not bar Capitolo from terminating the 1996 License
due to BCC's repeated material breaches. According to New York
Law, when a party commits a material breach of a contract, the
other party may choose to terminate the contract and sue for
damages. See NAS Electronics, Inc. v. Transtech Electronics
PTE, Ltd., 262 F. Supp.2d 134, 145 (S.D.N.Y. 2003) (citation
omitted). "The critical factor is not the passage of time, but
`whether the non-breaching party has taken an action (or failed
to take an action) that indicated to the breaching party that it
had made an election.'" ESPN, Inc. v. Office of Commissioner of
Baseball, 76 F. Supp.2d 383, 394 (S.D.N.Y. 1999) (quoting
Bigda v. Fischbach Corp., 898 F. Supp. 1004, 1012-13 (S.D.N.Y.
Here, the evidence has established that as a result of BCC's
repeated material breaches of the 1996 License, Capitolo elected
the remedy of termination, and promptly and repeatedly informed
BCC that the contract would not be renewed or extended beyond the
expiration of the initial five-year term. In light of these
repeated and consistent messages from Capitolo regarding its
election of the remedy of termination, Capitolo's acceptance of
untimely royalty payments and sales reports did not rescind its
express election to terminate.
BCC's own evidence establishes that Capitolo refused the
royalty payment received from BCC in February 2000, the last
payment ever offered by BCC. And it is undisputed that BCC has
not submitted any royalty payments or certified sales reports to
Capitolo since February 2000, and has not provided any royalty
payments or reports covering any period since December 31, 1999. BCC has claimed reliance on the March 2, 2000 letter of Noè as
the basis for not providing an accounting or payments after
February 2000 and that Capitolo did not want payments made until
the issues "surrounding BCC's license were resolved." But Loata
has stated that such resolution came in August 2000, with the
execution of the supposed new, expanded license agreement.
However, BCC took no steps then or since to provide Capitolo any
accountings or payments.
Given BCC's failure to cure its material breaches before
February 7, 2001, Capitolo's notices effectively terminated BCC's
right under Section 9 of the 1996 License to elect to renew the
license for another five-year term.
Summary Judgment Is Not Premature
BCC's claim that Capitolo has failed to produce documents and
witnesses that could raise genuine issues of material fact
sufficient to defeat summary judgment is wholly unsupported by
the factual record and relevant case law. Capitolo filed this
motion in October 2003, and has repeatedly delayed its resolution
at BCC's request. Discovery is now set to close in this action
later this month. If and to the extent that BCC
needed discovery to respond to this motion, the
time to seek it is long past due. Conclusion
For the reasons set forth above, Capitolo's motion for partial
summary judgment is granted and the August 2000 agreement is
declared void, the 1996 license properly terminated, and
alternatively expired before its renewal.
It is so ordered.
© 1992-2004 VersusLaw Inc.