2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
12-15-2004 

# H o wa r d J ohnson I n tl v

. Cup ol a E n tr L L C P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-4458

F o l lo w thi s a nd a dd it ion al work s at : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du . Re c omme nde d C it at ion

" H o wa r d J o hn s on I n tl v

. C u po l a E n tr LL C " (2004). 2004 D e cisio n s . P ape r 77. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/77NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT


### No. 03-4458
HOWARD JOHNSON INTL, a Delawa re Corpora

tion
v. CUPOL A ENTE RPRISE S, LLC, a Louisiana L imited Liability Company; ROBERT DUPREE, an individual ROBER T DUPR EE, an ind ividual, Appellant
APPEAL FROM THE UNI TED STATES DIST RICT COURT

FOR THE DISTRICT OF NEW JERSEY D.C. CivilNo. 01-cv-01205 Distri ct Judge: The Honorable Dennis M. Cavanaugh
Submitte d Under Third Circ uit LAR 34.1(a)

November 2, 2004
Bef or e: ALI TO, BARRY, and FU EN TE S, Circuit Judges (Opinion Fi led: December 15, 2004)

OPI NION1 Appellant ’s la st name is various ly spell ed “Dupre” and “Dupree. ” We will use t he spe lling he u ses. 2 BA RR Y, Circuit

Judge Rob ert Dup re 1 appe als, first, the D istrict Co urt’s gra nt of s um mary jud gm ent in favor of Howard Johnson Internati onal, Inc. ( “HJI”), clai ming that it was i mproper for t

he Court to gr ant summaryjudgment when allthat was bef ore it was a motion in limine . No tably, Du pre arg ues o nly the lab eling o f the re sult the C ourt re ache d and not tha t it erred on t

he merit s or that the procedure the Court fol lowed en route to that resul t was
wro ng. S econ d, D upre appe als the D istrict Co urt’s pu tative d enial o f his ap plication to amend his Answer to t

he Complaint. The Distri ct Court ha d juri sdiction pursuant to 28 U.S .C. § 133 2. W e ha ve ju risdi ction pur sua nt to 28 U .S.C . § 12 91. W e w ill aff irm. I. Bec ause we write s olely for th e ben efit of the pa rties, we recou nt on ly those fa cts that are rel evant t o the is sues befor e us. HJI commenced this cas e on March 12, 2001 against defendants ’ Cupola Enter prise s, LLC (“Cupola”) and Dupre, seeki ng damages aris ing out of de fendants’ alle ged breach of a fr anchise a greement and Guarant y. The clai ms against

Cupola were stayed as a resul t of it s bankrupt cy. The case conti nued aga inst D upr e as Cu pol a’s g uar anto r. Dis co ve ryha vi ng c lo se d, a n on- ju rytria l wa s t o be gi n onOct obe r 3 0, 200 2. On the day of the trial, how ever, and f ollowing argum ent before the District Cou rt, the Court2 At the fina l pretrial conferenc e, the M agistrate Judge stated that while sum mary

judgment motions could no longer be filed, motions in limine could be brought before the Dis trict C our t on the d ay trial w as to com me nce . 3 adjourned t

he tri al in order to cons ider t he issue s rai sed in a moti on in limine 2 file d by HJI. Th at motion arg ued that, as a m atter of law: (1) the p arol evidenc e rule barred D upre from offeri ng proofs i n support of his Counterclai m and affirmative defens es that contra dicted the w ritten term s of th e Lic ense Ag reem ent; (2) D upre had n o stan ding to assert any cl aims that

may be per sonal t o Cupola; and ( 3) Dupre’s t heories of damages were legal lyunsustai nable. In essenc e, this moti on sought t o precludeDupre from offering at trial any evi dence in suppor t of his Countercl aim and defenses . The motion was, it surel y appears, a summary j udgment motion l abeled as a motion in limine. See n.2, sup ra. HJI’ s mo tion w as ch aracte rized b y all at the arg um ent, inclu ding Du pre’s c oun sel, as “d ispositiv e”. Th e D istrict Co urt told D upre that he wo uld “h ave a s mu ch tim e as is necessary . . . to appropriately respond.” A fter discussing the briefing sche dule, Du pre
wa s give n tw elve d ays with in w hich to file a res pon se. Th e D istrict Co urt ma de it qu ite clea r tha t wh ethe r the re w oul d be a tria l wa s de pen den t on the r eso lutio n of the m otio n. Ne arly a year later, o n O ctobe r 15, 2 003 , the D istrict Co urt ente red su mm ary judgm ent in fav or o f H JI. Also , on w hat w as to b e the f irst day of tria l, the D istrict Co urt did n ot perm it Du pre to m ake an is sue out of w hat h ad n ot th ereto for e be en a n iss ue, i.e . whe ther Du pre4

signed t he Guaranty . Dupre’s c ounsel ar gued that he had not met hi s cli ent unti l the day before trial. Du ring that mee ting, Dup re and co unsel review ed doc umen ts, and Du pre notifi ed counsel, for the first t ime, that it

was not his s ignature on the Guaranty and t hat he did not remember signi ng the Guaranty. The Distri ct Court f ound this “fli p flop” on the da y of trial “inc redible ” bec ause Du pre h ad ad mitted that he wa s the g uaran tor in his Answer to the Complai nt, i n his Counterclai m, and in an aff idavit that was at

tached t o a
mo tion to tra nsfe r, and h ad at n o time throu gho ut the c ourse of the litigation a ttemp ted to disavow that

admissi on. Moreover, at thefinal pre-t rialconference and i n the Final Pre trial O rde r it w as sti pul ated that h e ha d sig ned the G uar anty. II. A. Summary Judgment W e ex ercis e ple nar y revie w o ver the D istrict Co urt’s gra nt o f su mm ary jud gm ent. Fis cus v. Wal-M art S tore s, Inc ., 385 F.3 d 37 8, 38 1 (3 d C ir. 20 04)
. It has lo ng b een e stablish ed tha t if certain preco ndition s are p resen t, district cou rts
are en titled to gr ant su mm ary judgm ent sua spon te. See C elotex Co rp. v. C atrett , 477 U.S. 317, 326 ( 1986) ("Our co nclusion is bo lstered by the fact that district courts are widely acknowledged to possess the power to enter summa ry j udgments sua sponte, so long as t he losi ng partywas on notice t hat she had to come forward with al l of her evidence. "). I n Otis Elev ator Co. v. George Washington Hotel Corp. , 27 F.3d 903 ( 3d Cir.19 94), w e held that a d istrict cou rt may no t grant s um mary jud gm ent sua spon te5

unl ess th e co urt g ives not ice a nd a n op por tun ity to op pos e su mm ary jud gm ent. See also Davis Elliott I

ntern. v. Pan American Co ntainer, 705 F.2d 705, 707- 08 (3d Cir. 1983) ("'beca use th e pro cedu re of R ule 56 requ iring an opp ortun ity to presen t pertine nt ma terial, which presumes notice t o the part y so t hat he may take advant age of the opportunit y, was not follo we d, th e en try of ju dgm ent m ust b e rev erse d' "). The threshol d issue i n the cont ext of sua spon te summary j udgment is, theref ore, whether the partywas given noti ce that summary j udgment is bei ng contemplated by t he
cou rt. Gibson v. Mayor and Council of the Ci ty of Wil

mington , 355 F.3d 215, 222-23 (3d Cir. 2004) . If s o, the next is sue for cons iderat ion is whether the non-moving part y had adequate time to gat

her the e vidence nece ssary to oppose t

he motion and pr esented s uch evid enc e to th e co urt. Id. at 223. Dup re argues that it w as improp er for the D istrict Court to grant sum mary judgment when the motion before it was a moti on in limine . He cites Bradley v. Pitt sburgh Board of Educat ion , 913 F.2d 1064 ( 3d Cir. 1990) , in s upport of hi s argument and, i ndeed, i n Bradley we found that the District Court had impermis sibl y gr anted summary j udgment on the bas is of a moti on in limine . Id. at 1070. Dupre thus ext rapol at es fr om Bradley that t he Rules of Civi l Procedure alway s prohibi t a court from granti ng summary j udgment when only a motion in limine has bee n file d. Bradley does not go t

hat far . In Bradley, we rev ersed the gran t of sum mary judgment becaus e therewas no evidence that thenon-moving part y had bee n put on6

notice. We also observed that the non-moving party had reasonablyassumed that the case
wo uld co ntinue to trial be caus e neith er party, no r the jud ge, su gges ted tha t the trial w ould not procee d. In addition, beca use of the absence of a form al motion fo r summ ary judgment, the non-moving partywas “under no formal compulsion to marshallall of the evidence i n support of

his cl aims.” Bradley , 913 F .2d at 1 069 -70. W e, there fore, h eld that a court cannot grant

summary j udgment pursuant to a moti on in limine without t he pre sen ce o f pr oce dur al sa feg uar ds. Id. at 10 70. Thi s c as e i s di stin gui shabl e fr om Bradley for two reas ons. Fi rst, Dupre knew that HJ I’s m otio n w as p oten tially dis pos itive ; ind eed , his c oun sel sa id so at the hea ring
. When counsel claimed that his cl ient might not understand what had transpired just moments before, the Dist rict Court succi nctly

summarized: “There’s an applic ation made that in e ffec t is askin g this C ourt to s trike your d efen ses, an d in so doin g, unle ss there is
som e oth er iss ue th at I’m not aw are o f, en ter ju dgm ent in fav or o f the Pla intif f.” P a 51
. The Distri ct Court t

hen concluded t

he coll oquy bystating that whether the re would be a trial w oul d de pen d on the r eso lutio n of this m otio n. Although the Dis tri ct Court di d not at t hat ti me state in haec ver ba that what

was before i t was a motion f or summary judgment, Dupre was explici tly put on noti ce that

the motion was potent

ially di spositive, and was given ample reason to bel ieve that the Distric t Cou rt migh t enter ju dgm ent fo r HJI . He, th erefo re, wa s cog nizan t of the need to “marshall all of his evidence” in support of his claims.7

Second, unl ike thenon-moving part y i n Bradley , Du pre w as pro vided adeq uate time t o draft aresponse. After the Distri ct Court e xpressed a desir e to have more briefi ng on the issues ra ised in the mo tion, it remarked, “M y concern is the fairne ss to [Du pre’s counsel, to have hi m be handed this at thi s ti me, without his opport

unity to do what he has to do to respond to t

he legalarguments. ” Counsel the n suggeste d that hecould have a respo nse d rafted by the ne xt day. T he C ourt re jected this, stating “I’m not loo king to back you to the wall . I mean I ’llgive y ou time t o do what you want . . . I ’llgive y ou as much time as i s necessary for y ou to appropriate ly respond. ” Dupre was then give n eight days to res pond – two shy of the te n required by Rule s 56(c) and 6(a). While he may ha ve been shortchanged two day s, he never brought t

his er ror t o the Dist

rict Court’s attent

ion, and h e has not as serted it here. In the ab senc e of p rotest, w e w ill assum e that th is abb rev iated sch edu le af for ded Du pre all th e tim e tha t he n eed ed. In sum, we do not permit a di stri ct court to sua sponte grant s ummary judgment unless two key requi rements are sati sfied. First , the non-moving part y must be on notic e that t he court i s contemplating gr anting s ummary judgment against it. Second, the nonmoving party must have adequate time to marshal its evi dence to show that there is a gen uin e issu e of ma teria l fac t. Bo th re qui rem ents we re sa tisfie d he re.3 In his brief on appeal , Dupre incons ist ently characterize s the er

ror at issue a s being the deni al of hi s appli cati on to amend his Answer, to amend the Fi nal Pret rialOrder, and to amend “allprior

pleadi ngs.” Becauseno applic ation was made, we need not determine to which document or

documents he re fers. Appellee, for it s part , chara cteri zes the applic ation a s a reques t by Dupre “to ret ract hi s admissi on concerni ng executi on of the Guaranty .” Appell ee’s Br. at 22. Again, i t is far from cl ear that anysuch reques t was ma de. 8 B. Denial of Dupre’ s Application to “Amend His Answer to Deny Execut ion of t he Guaranty” 3 On the eve of trial, Du pre advised his counse l that he did not sign the Gu aranty or, at thevery least , did not remember signi ng it, and on the dayset for tri al, the Dist

rict C ou rt w as so ad vi se d. T he C ou rt f ou nd it to be “e xt re m ely d isi ng en uo us , th at a t th is d ay, the dayof tri al, that now, for the first t ime, the aspect

that’ s at t

he heart of the entire ca se, for the first t

ime, y our cli ent cl aims that he didn’t

sign i t and didn’ t guarantee, when throughout

the entire hi story

of the cas e he’s acknowle dged that he did . . . I ’m not buyin g th is.” P a 33 -35
. Du pre ap peals th e D istrict Co urt’s su ppo sed d enial o f his ap plication to am end h is An swe r. We say “sup pose d” be caus e now here in the rec ord is th ere an y explicit applic ation to permit hi m to do so, much l ess to retrac t or modify his re peated admis sions that he had s igned the G uaran ty. Indeed , coun sel, spec ifically disav ow ing an y reques t to adjou rn the tria l or take disco very, simp ly wante d to k now from HJI’ s cou nsel, pre sent in the courtr oom, “What

is Howard J ohns on’ s pos ition ? How didthe y g etthe guar ant ee? Did it com e by mail? D id it come by Fed eral Expre ss? D id someb ody sit with M r.9

Dupree when he signed the guarant ee? And who is that? Who is the witness ?” (Pa. 38- 39)
. Because Dupre made no motion, oral or written, t o amend his Answer to t he C om pl ain t o r to w ith dr aw fr om hi s m an y ad m iss io ns th at h e h ad sig ne d t he G ua ra nt y, there is no con comitant ruling o f the D istrict Court for us to rev iew. A nd, wh ile the Court did not acc ede to the req uest of D upre’s cou nsel that HJI’s co unsel respo nd to cou nsel’s inquiries conc erning the circu mstance s surround ing the exe cution of the Gua ranty, Dupre doe s no t her e ch allen ge th at ref usa l. III. For th e fore goin g reas ons, w e w ill affirm the jud gm ent of the D istrict Co urt.