06-35398, 2007 WL 4039341
U.S. Court of Appeals, 9th Circuit
Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc.




A US seller and a Mexican buyer entered into a contract for the sale of raspberry roots to be planted in Mexico. Upon the goods' arrival, the buyer paid the price and opened the boxes where the roots had been stored. Prominently displayed on the top of each individual box was a clause, also reproduced on the invoices issued by the seller before shipment of the goods, exonerating the seller from liability. The buyer brought an action against the seller on the ground of lack of conformity. The seller contested any responsibility invoking the exclusionary clause.

The Court of First Instance (see U.S. District Court, Western District of Washington at Tacoma, 13-04-2006, full text and abstract available in Unilex) found that the question of whether or not the exclusionary clause was unconscionable, and therefore unenforceable, was a matter expressly excluded from the scope of CISG (Art. 4(a) CISG). Then, the Court made recourse to domestic law (i.e. US law), according to which it found the clause to be valid and enforceable.

The buyer appealed the decision.

After confirming that CISG was applicable under its Art. 1(1)(a), the Appellate Court held that the First Instance Court should have applied CISG in order to determine whether the exclusionary clause had become part of the contract. The Court also added that it would agree with the First Instance Court’s analysis as to the enforceability of the exclusionary clause if it was found to be part of the contract under CISG.



FN* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

*1 Barbara Berry, S.A. de C.V. ("Barbara Berry"), a Mexican corporation, appeals the district court's grant of summary judgment in favor of Ken M. Spooner Farms, Inc. ("Spooner Farms"), a Washington state corporation, in Barbara Berry's action to recover damages for breach of contract. We have jurisdiction under 28 U.S.C. s 1292 and we reverse the district court's judgment and remand for further proceedings.FN1

FN1. Because the parties are familiar with the factual and procedural history of this case, we do not recount it here.

We review de novo a district court's decision to grant a motion for summary judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). In evaluating the district court's grant of summary judgment in favor of Spooner Farms, we view the evidence in the light most favorable to Barbara Berry. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.1997). We also review de novo the district court's interpretation and application of treaty language. Ramsey v. United States, 302 F.3d 1074, 1077 (9th Cir.2002).

The United Nations Convention on Contracts for the International Sale of Goods ("the CISG") governs the formation of contracts for the sale of goods between parties whose places of business are located in different member states. CISG arts. 1, 4, April 11, 1980, 1489 U.N.T.S. 3. Both the United States and Mexico are parties to the CISG. Treaties in Force 528-29 (2006). Therefore, the principles of the CISG apply to the contract between Barbara Berry and Spooner Farms. See CISG, arts. 1, 4. The district court erred in failing to first analyze the formation of the Barbara Berry-Spooner Farms contract under the CISG. We reverse due to this error because, applying the CISG , there exist genuine issues of material fact as to when a contract was formed between Barbara Berry and Spooner Farms, what terms were included in the contract, and whether those terms were later varied.FN2

FN2. If it is determined that the limitation of liability provision within Spooner Farms' invoice or printed on the top of the boxes in which the goods were shipped is a part of the contract that was reached between the parties, then we agree with the district court's analysis that such provision would be enforceable. However, it first must be determined under the CISG, taking into account its articles and any pertinent precedent interpreting them, if that provision was a part of the contract.

In addition, the district court erred in failing to rule, prior to granting summary judgment in favor of Spooner Farms, on Barbara Berry's Federal Rule of Civil Procedure Rule 56(f) motion to continue discovery. See Garrett v. City of San Francisco, 818 F.2d 1515, 1519 (9th Cir.1987) (determining that a district court erred where it granted summary judgment for the opposing party prior to ruling on the discovery motion). Moreover, we are confident that this case is more likely to yield a correct resolution if the parties engage in a reasonable amount of discovery before the district court resolves the issue of contract formation.FN3

FN3. If after discovery the legal issues on contract formation and the terms of the contract can be resolved with no genuine issue of material fact, then we do not rule out the possibility of a post-discovery motion for summary judgment.



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