### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-60692 Summary Calendar

DE LAGE LANDEN FINANCIAL SERVICES, INCORPORATED, Plaintiff - Appellee
v. ERIC DAHLHAUSER, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:10-cv-567

Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM: * Defendant-Appellant Eric Dahlhauser appeals a summa ry judgment in favor of Plaintiff-Appellee De Lage Landen Financial Services, Inc. (“DLL”), for the amount due on a l ease agreement for which Dahlhauser executed a guaranty. We AFFIRM. DLL leased medical r a diotherapy equipment to defendant Cedar Lake Oncology, LLC, under the i r “M a ster Lease Agreement” and “Master Lease U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May17 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-60692 Document: 00511858847 Page: 1 Date Filed: 05/17/2012No. 11-60692

Schedules” (collectively, the “Lease Agreement”). D ah l h auser and two other defendants, Laurence Lines and Biloxi R a di at i o n Oncology Center, LLC, each executed a guaranty of Cedar Lake’s obligations under the Lease Agreement. Cedar Lake defaulted on rental payme nt s du e un der th e Le a s e Agre ement. DLL accelerated the future rental payments due a n d b r o u gh t this suit for the unpaid balance against Cedar L a k e , B iloxi, Lines, and Dahlhauser. Cedar Lake, Lines, and Biloxi agreed to a consent decree. The decree allowed Cedar Lake to retain possession of the equipment and required Cedar Lake, Lines, and Biloxi to adhere to a schedule of payments, to provide DLL with additional security, and to take other measures to ensure that DLL w o u l d be paid. Dahlhauser was not a party to the consent decree. Cedar Lake, Lines, and Biloxi failed to make the payments required by the consent decree. On DLL’s motion, the district court entered judgment against those defendants for the unpaid balance of th e a mount due under the Lease Agreement. DLL a l s o m oved for summary judgment against Dahlhauser, contending that his guaranty makes him jointly a n d s everally liable with the other defendants. The district court granted the motion and entered judgment

a g ainst Dahlhauser. We review a grant of summary judgment de no n o v o , affirming the judgment “if we find that no genuine issue of material fact remained for trial and that jud gment was proper as a matter of law

. ” Stewart

v. Miss. Transp. Com’n , 586 F.3d 321, 327 (5th Cir. 2009) (internal quotation marks and citation omitted). Dahlhauser raises three issues on appeal. First, he c o ntends that there is a g e n u i n e issue of material fact as to the amount of damages. Dahlhauser points to evidence that DLL has collected payments from other defendants that

are not reflected in the amount stated in the judgment. This is not material. As the district court explained, “[a]ny payments that have been or will be made by other parties will reduce the amount owed by Dahlhauser, since the Guaranty

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provides that he and the other Guarantors are jointly and severally liable for the amounts due

. . . .” Dahlhauser also ar gu e s th a t the value of the leased equipment should be deducted from DLL’s recovery. Dahlhauser did not raise this argumen t b e l ow. “[A]rguments not raised before the district court are waived and cannot be raised for the first time on appeal.” Matco Ltd. P’ship v. Wellons, Inc. , 588 F.3d 864, 877 (5th Cir. 2009). Moreover, the Lease Agreement permits DLL to choose between t a king possession of the leased equipment or accelerating the rental payments and recovering the unpaid balance. Second, Dahlhauser argues that the consent decree was a novation, displacing Cedar Lake’s obligations under the Lease Agreem e n t and thereby extinguishing Dahlha u s e r’s obligations under the guaranty. Novation occurs only if “the parties intended to discharge the earl i e r contract.” Buttonwood Farms, Inc. v. Carson , 478 A.2d 484, 486 (Pa. Super. 1984). The district court 1 fou n d that the consent decree did not discharge the Lease Agreement, and we agree. The decree states that the defendants party to it “acknowledge and

r e a f f irm” their obligations under the Lease Agreement. Also, Dahlhause r ’ s guaranty p e r mits DLL to enforce its terms notwithstanding any waiver or compromise DLL might make in its efforts to recover from Cedar Lake. Third, Dahlhauser argues that the district court abused its discretion in refusing to allow Dahlhauser to conduct additional discovery before considering DLL’s summary judgment motion. See F E D
. R. C IV
. P. 56(d). A litigant seeking t o d elay consideration of a summary judgment motion in order to a l l o w additional discovery mu s t s h o w that he has pursued discovery diligently thus far. Beattie v . M

a d i s o n Cnty. Sch. Dist. , 254 F.3d 595, 606 (5th Cir. 2001). In this case, the district court observed th a t D ah lhauser elected to minimize litigation expenses by not conducting any discovery prior to the lapse of the

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deadline. Ongoing settlement negotiations do not excuse suspending discovery efforts. Beattie , 254 F.3d at 606

. Dahlhauser would also have to show “(1) why [] h e n e e ds additional discovery and (2) how that discovery will create a genuine issue of material fact.” Id. Dahlhauser seeks discovery regarding the amount DLL has recovered from other defendants, as well as “the specific value of the leased equipment” and “the value of any other available assets that DLL refuses to utilize.” As noted above, the amount DLL has recovered in payments from other defendants or through taking assets they provided as security is immaterial beca u s e they and Dahlhauser are jointly and severally liable, and the issue of mitigation through repossession of the equipment is raised for the first time on appeal. Dahlhauser also argues that he should have b e en allowed additional discovery to “better demonstrate that the process by which h e w as induced to sign the guaranty was pro c e du r a lly unfair, thereby allowing him to show that the agreement was unconscionable.” As the district court observed in rejecting the unconscionability argument below, the circumstances in which Dahlhauser

exec u ted the guaranty are within his personal knowledge. The affidavit testimony Dahlhauser offered regarding those c i r cumstances is largely conclusory. The remainder, if true, would nevertheless fail to establish that Dahlhauser lacked a meaningful choice in executing the guaranty. See S ally v. Option One Mortg. Corp. , 925 A.2d 115, 119 (Pa. 2007) (contract unconscionable when, inter alia , “there was a lack of meaningful choice” in its acceptance). The district court’s judgment is AFFIRMED.

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