IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 summary judgment in

favor of Plaintiff-Appellee De Lage Landen Financial Services, Inc. (“DLL”), for

the amount due on a lease agreement for which Dahlhauser executed a

guaranty. We AFFIRM.

DLL leased medical radiotherapy equipment to defendant Cedar Lake

Oncology, LLC, under their “Master Lease Agreement” and “Master Lease

United States Court of Appeals

Fifth Circuit

F I L E D

May 17, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Schedules” (collectively, the “Lease Agreement”). Dahlhauser and two other

defendants, Laurence Lines and Biloxi Radiation Oncology Center, LLC, each

executed a guaranty of Cedar Lake’s obligations under the Lease Agreement.

Cedar Lake defaulted on rental payments due under theLease Agreement. 

DLL accelerated the future rental payments due and brought this suit for the

unpaid balance against Cedar Lake, Biloxi, 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 would 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 the amount due under the Lease

Agreement. DLL also moved for summary judgment against Dahlhauser,

contending that his guaranty makes him jointly and severally liable with the

other defendants. The district court granted the motion and entered judgment

against Dahlhauser. We review a grant of summary judgment de no novo,

affirming the judgment “if we find that no genuine issue of material fact

remained for trial and that judgment 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 contends that there

is a genuine 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 argues that the value of the leased

equipment should be deducted from DLL’s recovery. Dahlhauser did not raise

this argument below. “[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 taking 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 Agreement and thereby

extinguishing Dahlhauser’s obligations under the guaranty. Novation occurs

only if “the parties intended to discharge the earlier contract.” Buttonwood

Farms, Inc. v. Carson, 478 A.2d 484, 486 (Pa. Super. 1984). The district court 1

found that the consent decree did not discharge the Lease Agreement, and we

agree. The decree states that the defendants party to it “acknowledge and

reaffirm” their obligations under the Lease Agreement. Also, Dahlhauser’s

guaranty permits 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 FED. R. CIV.P. 56(d). A litigant seeking

to delay consideration of a summary judgment motion in order to allow

additional discovery must show that he has pursued discovery diligently thus

far. Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001). In

this case, the district court observed that Dahlhauser elected to minimize

litigation expenses by not conducting any discovery prior to the lapse of the

 The parties agree that Pennsylvania law governs their contractual arrangements.

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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 []he needs 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 because 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 been allowed additional

discovery to “better demonstrate that the process by which he was induced to

sign the guaranty was procedurally 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

executed the guaranty are within his personal knowledge. The affidavit

testimony Dahlhauser offered regarding those circumstances is largely

conclusory. The remainder, if true, would nevertheless fail to establish that

Dahlhauser lacked a meaningful choice in executing the guaranty. See Sally 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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