                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-2004

Sookhoo v. Becton Dickinson Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3216




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Recommended Citation
"Sookhoo v. Becton Dickinson Co" (2004). 2004 Decisions. Paper 457.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/457


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-3216




                RONNIE SOOKHOO; INDUSTRIAL LABORATORY
                    RESEARCH LIMITED, a limited liability
                      company of the Republic of Trinidad
                         and Tobago

                                       Appellants

                                           v.

                   BECTON DICKINSON AND COMPANY,
                        a New Jersey corporation;
                  ENRIQUE GUDINO; RAUL A. FABREGA




          ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR DISTRICT OF NEW JERSEY

                             (Dist. Court No. 01-cv-03863)
                  District Court Judge: Honorable Anne E. Thompson


                                 Argued: June 18, 2004

              Before: ALITO, SMITH, AND WALLACE * , Circuit Judges.

                             (Opinion Filed: July 28, 2004)



      *
       The Honorable J. Clifford Wallace, Senior Circuit Judge for the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
LAUREN B. COHEN (argued)
175 Fairview Avenue
Paramus, New Jersey 07652

Counsel for Appellants

ANDREW W. SCHW ARTZ (argued)
STEVEN R. ROWLAND
Sills, Cumis, Epstein & Gross, P.S.
One Riverfront Plaza
Newark, New Jersey 07102-5400

Counsel for Appellee




                                   OPINION OF THE COURT


PER CURIAM:

         This is an appeal of a summary judgment order. The relevant facts are set out in

the District Court’s opinion. We find that there exists a genuine issue of material fact,

and we therefore reverse the District Court’s summary judgement order and remand for

trial.

         In its complaint, Sookhoo alleged that he had a contract with Becton Dickinson

and Company (“BD”) to be BD’s exclusive distributor in Trinidad.1 Unfortunately for

Sookhoo, he was unable to produce a written copy of any contract. In response to the

complaint, BD submitted a motion to dismiss under FRCP 12(b)(6), arguing that any




         1
             Sookhoo also stated claims in tort and promissory estoppel.

                                                 2
existing agreement was between Sookhoo and one of BD’s foreign subsidiaries. BD

reasoned that as Sookhoo, Industrial, and BD’s foreign subsidiaries were all non-citizens,

the District Court did not have diversity jurisdiction over the contract claim. After

reviewing this motion, the District Court issued an order stating that previously it had

“converted this motion into a motion for summary judgment.” The District Court then

dismissed the case for lack of subject matter jurisdiction, ruling that Sookhoo failed to

produce evidence that there was any agreement between him and BD and furthermore

finding that, if any agreement existed, it was between Sookhoo and BD’s foreign

subsidiary.

       We conclude that an erroneous procedure was used in deciding the motion. First, a

non-moving party must receive notice at least 10 days before a motion to dismiss under

12(b)(6) is converted into a motion for summary judgment. See Rose v. Bartle, 871 F.2d

331, 335, 342 (3d Cir. 1989); Hancock Industries v. Schaeffer, 811 F.2d 225, 229 (3d Cir.

1987) citing Crown Central Petroleum Corp. v. Waldman, 634 F.2d 127, 129 (3d

Cir.1980). Here, such notice was not provided. Indeed, because the parties were not

directed to provide supporting affidavits, as FRCP 56 requires, but instead were told to

make informal responses, it appears that Sookhoo was misled into believing that BD’s

motion would not be converted into a summary judgment motion. See App. 126; 146;

Appellant’s Br. at 3. This prevented Sookhoo from gathering and presenting to the Court

the proper evidence and arguments he needed to defend against a motion for summary



                                             3
judgment.

       Second, BD’s motion raised a merits issue, not an issue of subject matter

jurisdiction. Simply put, by finding that there was no contractual relationship between the

parties, the District Court was determining the merits of the case. This was important, as

the standard for dismissing for a lack of jurisdiction is different from the standard for

granting summary judgment. See Nesbit v. Gears Unlimited Inc., 347 F.3d 72, 76-77 (3d

Cir. 2003).

       In any event, we do not base today’s decision on the above grounds because we

hold that there was a genuine issue of material fact left for trial and that BD was therefore

not entitled to summary judgment. We exercise plenary review over a decision to grant

summary judgment. “In considering a motion for summary judgment, a district court may

not make credibility determinations or engage in any weighing of the evidence; instead,

the non-moving party’s evidence is to be believed and all justifiable inferences are to be

drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.

2004)(quotation omitted). Furthermore, “[t]he burden is on the moving party to produce

credible evidence that would entitle it to a directed verdict if not controverted at trial.”

Pennbarr Corp. v. Insurance Co. of N. Am., 976 F.2d 145, 149-50 (3d Cir. 1992).

       Here, we find that Sookhoo’s claim raises an issue of material fact. At bottom, the

credibility of Sookhoo’s claim that a contract existed is an issue for the factfinder. Not

only has BD failed to show that no contract existed, but the record contains evidence of



                                               4
some form of distributorship agreement and possibly a long-standing, exclusive

relationship between the parties. See, e.g., App. 94; 298-309. Furthermore, the one

document in the record that suggests that the agreement was between Sookhoo and BD’s

foreign subsidiary is insufficient for summary judgment. See App. 225-228. Not only is

the document vague and without foundation, but the District Court erroneously ignored

Sookhoo’s claim and evidence that BD’s foreign subsidiaries were so controlled by BD as

to make them the same company. 2 See App. 279-286; App. 298-300; App. 418-419.

       For these reasons, we reverse the summary judgment order and remand for further

proceedings.




       2
       While we agree that Sookhoo never alleged in its briefs to the District Court that
BD and its foreign subsidiaries were a “single entity,” there is no legal rule requiring such
magic words. Sookhoo plainly argued that BD and its foreign subsidiaries were one
company and this is an issue for the jury.
                                           5
