                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2012).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A13-2190

                                   Arieh Cohen,
                                    Appellant,

                                         vs.

                                Blake Bjorlin, et al.,
                                   Respondents.

                               Filed August 11, 2014
                                     Affirmed
                                Rodenberg, Judge

                            Dakota County District Court
                             File No. 19WS-CV-13-737

Ryan S. Drea, True & Drea Law, PLLC, Minneapolis, Minnesota (for appellant)

Matthew C. Murphy, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota (for
respondents)

       Considered and decided by Chutich, Presiding Judge; Rodenberg, Judge; and

Reilly, Judge.
                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant challenges the district court’s grant of summary judgment to

respondents before discovery was complete. We affirm.

                                        FACTS

      On November 18, 2012, appellant Arieh Cohen entered into four separate cellular

service contracts with respondent Sprint Solutions, Inc. each with a two-year term. Each

contract allowed appellant to purchase a Samsung Galaxy S III for a promotional price of

$.96, which he purchased at Sam’s Club. Appellant signed forms acknowledging that he

had read, understood, and accepted Sprint’s Terms and Conditions Statement and Return

and Exchange Policy.

      Sprint’s Return and Exchange Policy provides, in relevant part,

             [Y]ou can try your new product for 14 days. If you aren’t
             100% satisfied with your product, return your device to your
             original place of purchase, and contact us within 14 days of
             activation . . . to deactivate service . . . and Sprint will
             [r]efund the device . . . purchase price [and] [w]aive the Early
             Termination Fee . . . . You may have to return any product
             purchased with the service before your account will be
             cancelled.

Because the specific models appellant purchased are considered “smartphones,” they are

subject to a “premium data” add-on charge of $10.00 each month. The charge is not

related to network connection.

      Appellant purchased the phones expecting to have “4G” service. Appellant was

immediately unhappy with the service available in the City of Eagan, where he lives.



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Specifically, Sprint had not yet expanded its 4G network to Eagan to cover the devices

appellant purchased. Thus the four cellular phones were limited to using a “3G” network

for internet access while in Eagan.        Appellant attempted to cancel the two-year

agreements on all four phones. Appellant alleges, and Sprint does not dispute, that he

called Sprint several times attempting to cancel the agreements. Appellant alleges that he

was “transferred many times” and was disconnected. Appellant’s account was credited

with $100 as an “inconvenience credit” and appellant was told by Sprint that 4G services

would soon be available. Appellant did not return the phones to the point of purchase.

       Appellant sued Sprint, Sprint CEO Daniel Hesse, Sam’s Club, Sam’s Club

employee Fernando Reyes, Phoenix Distributing Inc., and Phoenix employee Blake

Bjorlin in conciliation court, alleging that “Sprint would not, and did not allow us to

cancel” the contracts. Appellant also alleged that Sprint added “unsolicited calling plans”

and failed to provide for “non-partisan arbitration” to resolve the issues. The complaint

did not allege that appellant returned or attempted to return any of the four phones.

       Appellant claimed damages of $10.00 per month per line, and additional damages,

including $9.99 per month for certain months for a third-party subscription for at least

one of the devices, and $300.00 for each device (attributed to cancellation costs).

Appellant later amended his complaint to add a breach of warranty claim, alleging that

one of the devices was defective.

       The conciliation court dismissed appellant’s complaint, concluding that appellant

had failed to establish either a breach of contract or any damages. Appellant removed the

case to district court.


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       Respondents moved the district court for both dismissal and summary judgment.

All of the respondents joined in the motion for summary judgment, and respondents

Bjorlin, Hesse, Reyes, Sam’s Club and Phoenix also sought dismissal on the alternative

ground that they were not parties to the service contracts between appellant and Sprint.

Appellant responded to respondents’ motions and served respondents and respondents’

counsel with subpoenas requesting respondents to produce “all contract obligations for 5

telephone lines with signatures and call logs from Sprint . . . to include voice

recordings.”1

       The district court heard arguments on the motion for summary judgment on

August 28, 2013. Respondents’ brief asserts that the district court quashed appellant’s

subpoenas at the hearing. However, the record on appeal does not include a transcript of

the August 28 hearing, and the district court’s order does not reference the subpoenas.2

       The day after the summary-judgment hearing, appellant requested documents and

recordings “relevant to [his] complaints filed in Civil Claims Court.”3 On September 24,



1
  Appellant signed contracts for four phones and lines and apparently added a fifth line
later. The record on appeal contains no contract concerning a fifth line, and the issues in
this appeal concern the four phones and lines purchased on November 18, 2012.
2
  Appellant moved this court to accept late-filed transcripts of the August 28 hearing. In
a special term order, we determined that appellant had not shown good cause for
extending the time prescribed by the rules, and that appellant had not demonstrated that
the transcripts were necessary for appellate review. The parties appear to agree that the
district court either quashed the subpoenas or at least did not enforce them.
3
   This three-page document appears to be intended as a request for production of
documents under Minnesota Rule of Civil Procedure 34, but it is not clear from the
record on appeal upon whom this document was served or whether the district court was
made aware of it before issuing its order dismissing appellant’s claims. In any event, as
discussed below, even if the request for documents was properly served and outstanding

                                            4
2013, the district court granted respondents’ motion for summary judgment and also

granted the motion to dismiss the claims against Bjorlin, Hesse, Fernandez, Sam’s Club,

and Phoenix. Appellant challenges the district court’s grant of respondents’ motion for

summary judgment, identifying the sole issue on appeal as being whether the district

court erred in summarily adjudicating his claims before discovery was complete.

                                     DECISION

      Appellant does not argue on appeal that the record as constituted contains

unresolved questions of material fact sufficient to survive summary judgment. Rather,

appellant argues that the district court erred in granting respondents’ motion for summary

judgment because discovery was not yet complete, which, he argues, “creates a genuine

issue of material fact.”   Respondents assert that appellant did not comply with the

requirements of Minnesota Rule of Civil Procedure 56 in requesting a continuance to

conduct additional discovery and thus, summary judgment was appropriately granted.

      A party may serve and file a motion for summary judgment “at any time after the

expiration of 20 days from the service of the summons.” Minn. R. Civ. P. 56.01. A party

opposing a summary judgment motion may move for a continuance of the motion “to

permit affidavits to be obtained or depositions to be taken or discovery to be had.” Minn.

R. Civ. P. 56.06. To request a continuance or denial of a summary judgment motion

based on the need for additional discovery, the nonmoving party is required by rule to file

an affidavit that is “specific about the evidence expected, the source of discovery


at the time of the district court’s order, summary judgment was nevertheless properly
granted.

                                            5
necessary to obtain the evidence, and the reasons for the failure to complete discovery to

date.” Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 919 (Minn. App.

2003). “[A] failure to submit such an affidavit, by itself, justifies the district court’s

decision to rule on the motion without granting relief under rule 56.06.” Molde v.

CitiMortgage, Inc., 781 N.W.2d 36, 45 (Minn. App. 2010). A district court “has wide

discretion to issue discovery orders,” and normally an order will not be overturned

without clear abuse of that discretion. In re Comm’r of Pub. Safety, 735 N.W.2d 706,

711 (Minn. 2007).

      We first observe that the scheduling order set the discovery deadline after the

deadline for filing dispositive motions. This seems unusual. But respondents complied

with the scheduling order by serving and filing their motion for summary judgment

before the deadline for dispositive motions.      And nothing in rule 56 precludes a

dispositive motion before the close of discovery. The rule prohibits a motion made

before “the expiration of 20 days from the service of the summons.”

      Rule 56.06 allows a nonmoving party to request a continuance of a summary

judgment motion to complete discovery.       But appellant made no such request. He

submitted no affidavit as required by rule 56.06. And because appellant failed to timely

request the transcript for the summary judgment hearing, we cannot determine whether

he made an oral request for a continuance to complete discovery. Appellant has the

burden of establishing his claim on appeal. See Mesenbourg v. Mesenbourg, 538 N.W.2d

489, 494 (Minn. App. 1995). On this record, we cannot assume that a request for




                                            6
continuance was made. And even if appellant requested a continuance, he failed to

supply an affidavit supporting such a request.

       Appellant cites U.S. Bank Nat’l Ass’n v. Angeion Corp., 615 N.W.2d 425 (Minn.

App. 2000), review denied (Minn. Oct. 25, 2000) to support his assertion that the district

court’s grant of summary judgment was premature. In Angeion, although the appellant

did not move for a continuance, we nonetheless reversed the grant of summary judgment.

615 N.W.2d at 433-34. But Angeion is distinguishable.

       The substantive issue in Angeion was whether respondent had “transferred all or

substantially all of its assets,” id. at 434, which led to a “default[] on its obligation to

make a repurchase offer to noteholders.” Id. at 427. The respondent moved for summary

judgment, and the appellant filed a cross-motion for summary judgment and served

interrogatories on the respondent. Id. at 429. The respondent refused to answer the

interrogatories. Id. The district court granted the respondent’s motion for summary

judgment and concluded that “further discovery would be expensive and unnecessary.”

Id. In reversing the grant of summary judgment, we concluded that summary judgment

was “premature” because “the record [was] not sufficiently developed.” Id. at 433. We

reasoned that “[a]ll of the information [the appellant] needed to demonstrate a material

issue of fact . . . was within [the respondent’s] possession” and that the respondent had

“refused to answer further discovery while the motions were pending.” Id. at 434.

       Here, and unlike in Angeion, appellant made discovery requests after the summary

judgment hearing.    Respondents did not fail or refuse to respond to any discovery

requests properly served before the dispositive motion hearing. In the absence of a


                                             7
request for continuance in compliance with rule 56, the district court acted within its

discretion in deciding the timely dispositive motions on the merits.

       We also observe that, even had appellant properly requested a continuance to

complete discovery, summary judgment would nevertheless appear to have been proper.

“[I]f the discovery would not assist the district court or change the result of the summary

judgment motion, the district court does not abuse its discretion by granting the summary

judgment motion without granting the continuance.” QBE Ins. Corp. v. Twin Homes of

French Ridge Homeowners Ass’n, 778 N.W.2d 393, 400 (Minn. App. 2010).

       Appellant argues that he requested “recordings and other documentation from

Sprint customer service of each telephone call appellant made to the company” and that

the documents “will demonstrate that respondent’s employees blatantly and explicitly

engage[d] in evasive tactics to prevent appellant from exercising the cancellation option

of the contract.” Even if true, this allegation does not raise any genuine issue of material

fact in the context of the parties’ contracts. The district court found that “it is undisputed

that [appellant] intended to cancel the contract during [the two-week return period] and

had repeated contacts with Sprint.” It also stated that “Sprint does not specifically rebut

the assertion that it transferred [appellant’s] call several times when he attempted to

cancel, nor does it dispute the suggestion that its employees were reluctant to cancel the

contract.” The district court concluded that there is no authority to suggest that “attempts

by one party to make it difficult for the other to cancel a contract are relevant in a breach

of contract action.” The district court based its grant of summary judgment on, among

other things, the absence of any record evidence, or even any claim, that appellant


                                              8
returned the phones to the point of purchase. This was required by the contracts for

cancellation.

       In sum, we hold that the district court acted within its discretion in ruling on

respondents’ dispositive motion before the discovery deadline had expired. Because

appellant did not allege that he returned the phones to the point of purchase, and because

appellant failed to demonstrate on appeal that he requested a continuance of the

dispositive motion to complete discovery, summary judgment was properly granted.

       Affirmed.




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