United States District Court, D. North Dakota
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Charles S. Miller, Jr., Magistrate Judge
the court is American Bank Center (“ABC”)'s
Motion for Summary Judgment, wherein ABC seeks judgment
against Defendant Stephen Barker for amounts allegedly owed
to ABC. (Doc. No. 6). Barker opposes the current motion.
(Doc. No. 9).
action stems from a serious of transactions related to the
purchase/development of a hotel in Dickinson, North Dakota,
during the height of the Bakken oil boom. Generally speaking,
ABC entered into loan agreements with (1) Grand Dakota
Partners, LLC and (2) Grand Dakota Hospitality, LLC, d/b/a
Ramada Grand Dakota Lodge & Conference Center
(collectively “Grand Dakota”). In consideration
for these loans, the Grand Dakota entities executed
promissory notes in favor of ABC. In further consideration,
Barker, in his individual capacity, executed corresponding
guaranties in favor of ABC. These agreements are detailed
below. The following facts are either uncontested or are
construed in Barker's favor for purposes of the current
the Grand Dakota entities first entered into a loan agreement
under which ABC agreed to lend a maximum amount of $8, 500,
000 with a variable interest rate. (Doc. No. 1-1 pp. 16-19).
Barker signed the loan agreement in his capacity as President
of Grand Dakota Partners, LLC and as the Managing Member of
Grand Dakota Hospitality, LLC. Id. A notary public
notarized the document as having been executed in Stark
County, North Dakota on August 24, 2010. Barker also signed a
promissory note on behalf of the Grand Dakota entities on
August 24, 2010. (Doc. No. 1-1 pp. 13-15). He did so in the
same capacities as the loan agreement. Id.
central to this litigation, Barker, in his individual
capacity, also executed a guaranty on August 24, 2010, the
same date as the other loan agreements. (Doc. No. 1-1 pp.
7-8). This guaranty provided Barker guaranteed “to
[ABC] the payment and performance of each and every debt,
liability and obligation of every type and description which
[Grand Dakota] may now or at any time hereafter owe to [ABC],
whether such debt, liability or obligation now exists or is
hereafter created or incurred . . . .” (Doc. No. 1-1 p.
7). Barker's guaranty was “absolute, unconditional,
and continuing . . . .” Id. Barker's
guaranty was also for an unlimited amount, and Barker agreed
to “pay or reimburse [ABC] for all costs and expenses
(including reasonable attorneys' fees and legal expenses)
incurred by [ABC] in connection with the protection, defense
or enforcement of this guaranty in any litigation . . .
.” Id. The document guarantees payment
regardless of whether “any other person obligated to
pay indebtedness, including [Grand Dakota], has such
obligation discharged in bankruptcy or otherwise discharged
by law.” Id. Barker further waived any right
to presentment, and ABC could collect on Barker's
guaranty without seeking collection from alternate sources.
Id. Finally, the guaranty provided it “shall
be governed by the laws of the State in which it is
17, 2013, ABC and the Grand Dakota entities executed a debt
modification agreement. (Doc. No. 1-1 pp. 20-21). This
agreement changed the interest rate to be charged under the
original loan agreement from a variable to a fixed rate.
Id. It did not change any other provision of the
loan agreement. Barker again signed the agreement in his
capacity as President of Grand Dakota Partners, LLC and as
the Managing Member of Grand Dakota Hospitality, LLC.
ABC and the Grand Dakota entities executed a second loan
agreement in the amount of $2, 500, 000 on December 30, 2014.
(Doc. No. 1-1 pp. 26-30). Barker signed this document as
President of Grand Dakota Partners, LLC and as the Managing
Member of Grand Dakota Hospitality, LLC. Also on December 30,
2014, the Grand Dakota entities, with Barker as their
respective signatory, executed a promissory note regarding
the second loan agreement.
germane to this litigation, Barker, in his individual
capacity, also executed a guaranty on December 30, 2014.
(Doc. No. 1-1 pp. 9-11). Under this guaranty, Barker
guaranteed “the payment and performance of each and
every Debt, of every type, purpose and description that
[Grand Dakota] . . . may now or at any time in the future owe
[ABC] . . . including without limitation all principal,
accrued interest, attorneys' fees and collection costs .
. . .” Id. The guaranty further provided
Barker would “remain obligated to pay on this Guaranty
even if any other person who is obligated to pay the Debt,
including [Grand Dakota], has such obligation discharged in
bankruptcy . . . .” Id. The guaranty further
required Barker to pay all expenses incurred in collecting
under the guaranty, to the extent permitted by law. (Doc. No.
1-1 p. 10). As is relevant here, the guaranty dictated that
North Dakota law applied. Id. This was a change in
wording from the prior guaranty, which provided that the law
that governed was the place of its execution.
Grand Dakota's Financial Problems
the record is not clear as to the exact date, the Grand
Dakota entities subsequently failed to make all payments
required by the loan agreements and promissory notes. This
failure constituted a default under the agreements. (Doc. No.
8-1). Each loan agreement had an acceleration clause allowing
ABC to declare the outstanding balance and accrued interest
due immediately, which ABC elected to invoke. Id.
After this election, the Grand Dakota entities filed for
bankruptcy sometime in 2017, though the record does not
reflect the exact date.
has not paid ABC any amounts pursuant to either of the
guaranties he executed. Id. ABC initiated this
action to enforce both guaranties in state court, seeking
judgment in the aggregate amount of $9, 851, 215.34. (Doc.
No. 1-1 p. 5). This amount consisted of $9, 366, 108.49 in
outstanding principal, $484, 656.85 in interest accrued as of
May 1, 2017, and $450.00 in late fees. ABC also seeks
interest that has accrued from May 1, 2017, through the
present. Barker answered the complaint in state court on
September 14, 2017. (Doc. No. 7-1). Barker removed this
action to federal court on September 20, 2017. (Doc. No. 1).
seeks summary judgment as to its action on the two
guaranties. ABC argues the guaranties are unambiguous and
dictate Barker is liable for all amounts outstanding under
the loan agreements. (Doc. No. 7). Barker opposes the motion,
arguing this motion is premature and disputed issues of fact
exist regarding the applicable law. (Doc. No. 9). The court
and the parties are well-versed in the standard for summary
judgment and the court need not repeat it here.
Barker's Rule 56(d) Objection
argues summary judgment should not be granted because the
case is still in its infancy and he has not conducted the
discovery necessary to fully oppose the current motion.
“Although discovery does not have to be completed
before a district court can grant summary judgment,
‘summary judgment is proper only after the nonmovant
has had adequate time for discovery.'” Ray
v. Am. Airlines, Inc., 609 F.3d 917, 923 (8th Cir.
2010) (quoting In re TMJ Litigation, 113 F.3d 1484,
1490 (8th Cir.1997)). Under Fed.R.Civ.P. 56(d), the court may
defer considering a motion for summary judgment or allow time
to take discovery if a nonmoving party “shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its
opposition” to that motion. Under the discretion
afforded by Rule 56(d), the court will not defer ruling on
the current motion or grant other Rule 56(d) relief because
Barker's objection fails on multiple levels.
lack of compliance with the plain language of Rule 56(d) is
the foremost of such problems. Specifically, Rule 56(d)
requires the nonmoving party show the necessity of Rule 56(d)
relief by “by affidavit or declaration . . . .”
Barker has filed an affidavit in opposition to the current
motion, but that affidavit does not speak to any of the
factors relevant for the court to fashion Rule 56(d) relief.
(Doc. No. 10 pp. 1-2). Additionally, although Rule 56(d)
requires the nonmoving party show the necessity of relief
with “specified reasons, ” Barker has only
vaguely alleged in his brief in opposition to ABC's
motion that, “at this point in the discovery process,
Barker cannot fully present evidence supporting his
opposition . . . .” (Doc. No. 9 p. 6). Aside from
identifying his N.D.C.C. § 22-01-15 claims as possible
defenses needing further discovery, which the court will
address below, Barker has not identified any other specific
issue or defense needing more discovery, and Rule 56(d) makes
clear that he cannot rely on a hope or prayer further
discovery might provide something of use. Accordingly, to the
extent Barker's briefing constitutes a general objection
under Rule 56(d), that objection is denied.
extent Barker's Rule 56(d) objection can be winnowed down
to his N.D.C.C. § 22-01-15 claims for possible
exoneration, Barker again has not recited in his affidavit
any relevant factors under Rule 56(d), and his Rule 56(d)
objections still do not contain “specified
reasons” why he cannot fully assert these claims at
present. Looking past these procedural failings, Barker's
Rule 56(d) objection also fails for lack of good cause.
Barker's claims for possible exoneration under N.D.C.C.
§ 22-01-15 are both predicated on ABC taking some action
possibly affecting the original obligations Barker
guaranteed. Barker's plea for further discovery on these
issues ignores the fact Barker had intimate involvement with
the relationship between the Grand Dakota entities and ABC,
making Barker privy to any information possibly providing
exoneration under N.D.C.C. § 22-01-15. Indeed, Barker
executed every document appearing of record on behalf of the
Grand Dakota entities, including loan agreements, promissory
notes, mortgages, etc. (Doc. Nos. 1-1 pp. 7-30; 11-2). He
also, not surprisingly as the principal of the Grand Dakota
entities, exhibited personal familiarity with requests for a
work out of the Grand Dakota entities's debt problems,
including reference to specific dates, as set forth in his
affidavit. (Doc. No. 10). Barker's claim that he lacks
the necessary knowledge to identify with specificity what
additional information he needs to obtain by discovery
material to the pending motion, notwithstanding being the
principal of the Grand Dakota entities, is simply
summary, to the extent Barker raises a Rule 56(d) objection
specifically as to his N.D.C.C. § 22-01-15 claims, that
objection is denied on ...