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Charter Practices International, LLC. v. Robb

United States District Court, D. Connecticut

September 23, 2016

CHARTER PRACTICES INTERNATIONAL, LLC, ET AL., Plaintiffs,
v.
JOHN M. ROBB, Defendant.

          RULING ON PLAINTIFFS' MOTION TO FILE SUPPLEMENTAL MATERIALS

          DONNA F. MARTINEZ UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs, Charter Practices International, LLC (“CPI”) and Medical Management International, Inc. (“MMI”) (collectively, “Banfield”), operate company-owned and franchised Banfield pet hospitals. Banfield brought this breach of contract action against its former franchisee, veterinarian Dr. John M. Robb (“Dr. Robb”), and Dr. Robb asserted four counterclaims.[1] (Doc. #159.) Banfield moved for summary judgment on Dr. Robb's counterclaims as well as its own affirmative breach of contract and CUTPA claims. (Doc. #225, 268.) On March 10, 2016, I filed a recommended ruling, currently pending before Judge Chatigny, in which I recommended that Banfield's motion for summary judgment be denied. (Doc. #335.) Banfield now seeks leave to file supplemental materials in support of its motion for summary judgment. (Doc. #340.) For the following reasons, the motion is DENIED.

         I. Background and Pending Motions

         In its motion for summary judgment, Banfield argues that Dr. Robb violated Connecticut law and the standard of care in veterinary medicine by, inter alia, administering half doses of the rabies vaccine to dogs. Banfield asserts that this violation amounts to a breach of the parties' franchise agreement, giving Banfield good cause to terminate Dr. Robb's franchise. Banfield thus contends that summary judgment is appropriate on its affirmative claim and Dr. Robb's counterclaim for breach of contract. Upon review of the parties' submissions, I concluded that there are genuine disputes of material fact concerning Dr. Robb's conduct and whether it amounts to a breach of the parties' franchise agreement.[2] I therefore recommended that summary judgment be denied.

         Banfield now asks the court to consider, in support of its motion for summary judgment, the Connecticut Board of Veterinary Medicine's draft minutes of its May 4, 2016 meeting. According to the minutes, the Board determined that Dr. Robb violated the standard of care while administering and delegating the administration of the rabies vaccine at his former Banfield pet hospital. (Doc. #340, p. 7.) Banfield asserts that the minutes reflect that the Board “conclusively established” that Dr. Robb violated the standard of care. (Doc. #340, p. 4.) From this, Banfield draws the conclusion that there is no factual dispute that Dr. Robb's violation amounts to a breach of the parties' franchise agreement, thus giving Banfield good cause to terminate his franchise. It follows, in Banfield's view, that summary judgment should be granted.

         II. Admissibility

         “The district court has broad discretion in choosing whether to admit evidence.” Raskin v. Wyatt Co., 125 F.3d 55, 65 (2d Cir. 1997).

The principles governing admissibility of evidence do not change on a motion for summary judgment . . . . Rule 56(e) provides that affidavits in support of and against summary judgment shall set forth such facts as would be admissible in evidence.[3] Therefore, only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.

Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009) (citations omitted).

         “[I]n order to be admissible, evidence must be properly authenticated-that is, there must be some ‘evidence sufficient to support a finding that the item is what the proponent claims it is.' Fed.R.Evid. 901(a).” AT Engine Controls Ltd. v. Goodrich Pump & Engine Control Sys., Inc., No. 3:10-CV-01539 (JAM), 2014 WL 7270160, at *8 (D. Conn. Dec. 18, 2014).

Documents that are not part of the record and that were not produced in response to disclosure or discovery must be introduced by an authenticating affidavit or declaration unless they are self-authenticating and intrinsically trustworthy on their face. Documents that are merely discussed in the moving papers or presented without authentication will not normally be considered by the court.

11 James Wm. Moore, et al., Moore's Fed. Prac. § 56.92 (3d ed. 2016); see, e.g., Monroe v. Bd. of Ed. of Town of Wolcott, Conn., 65 F.R.D. 641, 645-46 (D. Conn. 1975) (“[C]ourts may consider certified records of administrative proceedings, [but]. . . unverified documents and transcripts that have not been made a part of a pleading cannot be considered in ruling on a motion for summary judgment.”).

         Banfield offers the minutes by simply attaching a copy to its motion. The minutes are not self-authenticating and Banfield provides no evidence to authenticate them. Banfield states, without elaboration, that “[t]here is nothing speculative or unreliable about the Board's unanimous decision after months of hearings. The draft minutes are simply a recording of what ...


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