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Superior Composite Structures, LLC v. Malcolm Parrish

November 10, 2011

SUPERIOR COMPOSITE STRUCTURES, LLC, PLAINTIFF,
v.
MALCOLM PARRISH, DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

Plaintiff, Superior Composite Structures, LLC, brought suit against defendant, Malcolm Parrish, who is proceeding pro se, and alleges breach of contract, negligent misrepresentation, fraudulent misrepresentation, and deceit causes of action. Superior Composite moves to deem admitted "Plaintiff's Requests for Admissions to Defendant Malcolm Parrish." Docket 45. Parrish moves to admit his late responses to Superior Composite's requests for admissions. Docket 73. Superior Composite resists. Docket 74. In addition, Superior Composite moves for summary judgment, Docket 58, which Parrish resists. Superior Composite's motion to deem admitted its requests for admissions is denied. Parrish's motion to admit his late responses is granted. Superior Composite's motion for summary judgment is denied.

ORDER

BACKGROUND

The pertinent facts to this order, in the light most favorable to Parrish, the nonmoving party on the summary judgment motion, are as follows:

Parrish is the chief executive officer for Abersham Commercial Services Ltd, which is involved in producing modular housing panels out of high-tech materials made from recycled glass. Superior Composite, through its managers Lee Celske and Rick Ostergaard, expressed interest in selling these houses. Abersham stated that it could provide a "turn key" Ambiente Housing Plant, which could produce 500 modular houses a year.

Superior Composite and Parrish entered into a series of written agreements, including an "Agreement in Principal" dated August 12, 2008. Docket 1-1. Superior Composite agreed to purchase an Ambiente Housing Plant from Abersham with a production capacity of 500 houses per year for $9 million, with $500,000 due at the end of year one, $500,000 due at the end of year two, and the remaining $8 million paid in cash in progress payments "defined in the Plant Design Build contract." Docket 1-1 at 1. The August 12 agreement included phases for building the Ambiente Plant and stated that Abersham would receive a technology licensing fee in the amount of 8 percent of each house's sale price. In return, Superior Composite would receive an exclusive territory within the United States to sell the houses. Superior Composite paid an initial $250,000 deposit to Abersham.

On June 9, 2008, Abersham provided a firm order to buy 100,000 square feet of housing from Superior Composite, reserved the right to purchase another 100,000 square feet of housing, and stated that Abersham wanted to receive the houses at a rate of ten per month. Docket 1-2. Abersham stated that firm dates and costs for these houses would be determined at a later date.

On April 2, 2009, Parrish wrote to Rick Ostergaard and Lee Celske, two of Superior Composite's executive officers, and stated that Superior Composite needed "to increase the deposit by 100k." Docket 1-3. Superior Composite paid an additional $100,000 to Abersham. The contractual relationship eventually disintegrated, and Superior Composite brought this action against Abersham and Parrish on June 14, 2010.

After Abersham's counsel withdrew and the company was unable to secure substitute counsel, the clerk of court entered default against Abersham because corporations cannot proceed pro se in court. Dockets 29, 32. After holding a hearing on damages, where Abersham did not appear, the court granted Superior Composite's motion for default judgment against Abersham in the amount of $849,895.98. Docket 57. Only Parrish remains as a defendant in this action.

On May 19, 2011, Superior Composite served its requests for admissions on Parrish. In its requests for admissions, Superior Composite informed Parrish that if he failed to answer, the requests for admissions would be deemed admitted. Docket 46-1 at 1. Four months later, on September 13, 2011, Parrish submitted his proposed responses to the requests for admissions.

DISCUSSION

I. Requests for Admissions

Federal Rule of Civil Procedure 36(a)(3) controls when a request for admissions is deemed admitted:

A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for ...


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