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Df Activities Corp. v. Brown - 851 F.2d 920 (7th Cir. 1988)


A plaintiff cannot withstand summary judgment by arguing that although in pretrial discovery he has gathered no evidence of the defendant's liability, his luck may improve at trial.


Plaintiff sued defendant for breach of contract. Plaintiff alleged that defendant had agreed to sell a chair to plaintiff but instead sold it to a third party. Plaintiff sued for the difference between the price at which the chair sold and the contract price. Defendant moved under Fed. R. Civ. P. 12(b)(6) to dismiss the suit as barred by the statute of frauds in the Uniform Commercial Code § 2-201. Attached to defendant's motion was defendant's affidavit that she had never agreed to sell the chair to plaintiff. The lower court granted defendant's motion and plaintiff appealed. Plaintiff argued that the dismissal was improper since plaintiff had not had an opportunity to depose defendant. The court disagreed. The court affirmed the dismissal of plaintiff's suit against defendant since the statute of frauds in the Uniform Commercial Code barred the suit because the contract was oral and over $ 500.00.


Did the court err in granting a motion to dismiss when plaintiff had not had an opportunity to depose defendant?




 The court found that plaintiff in a suit involving a contract covered by the statute of frauds should not be allowed to resist a motion to dismiss, backed by an affidavit that defendant denied the contract was made, by arguing that his chances of success might improve with discovery. The court ruled that once defendant denied the contract under oath, the exception to the statute of frauds found in Uniform Commercial Code § 2-201(3)(b) was closed.

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