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ORDER 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CHRISTINE STEPHENS,

Plaintiff,

v.

DONOBI, INC., a Washington Corporation, 

Defendant.

No. C05-5608RBL

ORDER GRANTING

DEFENDANT’S MOTION

UNDER FRCP 56(f) AND

DENYING PLAINTIFF’S

MOTION FOR PARTIAL

SUMMARY JUDGMENT

WITHOUT PREJUDICE

This matter is before the Court on Plaintiff Christine Stephens’s Motion for Partial Summary

Judgment [Dkt. #18]. Stephens argues that this Court should grant summary judgment in her favor by

concluding that $170,500.00 remains due under the disputed Promissory Note. According to Stephens,

the Note is clear and complete, and not ambiguous as to its terms. Defendant Donobi, Inc., argues that the

Note is not a complete agreement and that it must be understood in the context of a series of agreements. 

Donobi moves under FRCP 56(f) for time to depose Stephens and to complete discovery. Accordingly,

Donobi requests this Court to deny Stephens’s Motion for Partial Summary Judgment without prejudice

until completion of discovery [Dkt. #20]. 

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ORDER 2

DISCUSSION

FRCP 56 sets standards relating to summary judgment and when courts should grant or refrain

from granting a party’s summary judgment motion. FRCP 56(f) specifically provides the following:

Should it appear from the affidavits of a party opposing the motion that the

party cannot for reasons stated present by affidavit facts essential to justify

the party’s opposition, the court may refuse the application for judgment or

may order a continuance to permit affidavits to be obtained or depositions to

be taken or discovery to be had or may make such other order as is just. 

Donobi’s motion under FRCP 56(f) poses the question of whether Donobi can present by affidavit

facts essential to justify the party’s opposition. Donobi argues that it cannot present facts surrounding the

parties’ intent when they drafted the Note until Donobi has had an opportunity to depose Stephens and

complete discovery.

Donobi correctly argues that the Washington State Supreme Court has adopted the context

approach to contract interpretation. Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990). The

context approach applies even if the contract is unambiguous. Id. at 665. Under the context approach, the

Court may admit extrinsic evidence (or parol evidence) relating to the entire circumstances under which the

contract was made for the purpose of ascertaining parties’ intent. Id. at 667. However, the context

approach does not apply for the purpose of adding to, modifying, or contradicting the terms of a written

contract, in the absence of fraud, accident, or mistake. Id. at 669. The Berg Court explained that it did

not apply the plain meaning rule because “meaning can almost never be plain except in context.” Id. at

668.

Stephens asserts that a court may look to extrinsic evidence (or parol evidence) only to explain an

ambiguity in the contract. She cites State v. Nason, 96 Wn. App. 686, 691, 981 P.2d 866 (1999) in

support of her argument. The problem is that nowhere in Nason does the court limit admissible extrinsic

evidence to evidence that helps resolve ambiguity. Rather, the Nason court explains that because the

contract at issue, a plea agreement, was ambiguous, the court would allow extrinsic evidence to try to help

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ORDER 3

clarify disputed terms. Id. at 691-92.

CONCLUSION

In light of the Berg Court holding establishing the context rule for extrinsic evidence, this Court

GRANTS Donobi’s motion under FRCP 56(f) [Dkt. #20]. The Court also DENIES WITHOUT

PREJUDICE Plaintiff Stephens’s Motion for Partial Summary Judgment until completion of discovery on

June 19, 2006 [Dkt. #18]. Plaintiff’s Motion for Partial Summary Judgment will be RENOTED for June

23, 2006. 

IT IS SO ORDERED. 

DATED this 4th day of May, 2006.

A

RONALD B. LEIGHTON

UNITED STATES DISTRICT JUDGE

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