United States v. Robert L. Shepherd

*
The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
**
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-2734
___________
National Minority Supplier *
Development Council Business *
Consortium Fund, Inc., *
* Appeal from the United States
Appellant, * District Court for the District
v. * of Minnesota.
*
Bank of Windsor, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: March 13, 2002
Filed: March 19, 2002
___________
Before FAGG and BEAM, Circuit Judges, and GOLDBERG, * Judge.
___________
PER CURIAM.
National Minority Supplier Development Council Business Consortium Fund,
Inc. (BCF) appeals the district court's ** adverse grant of summary judgment in favor
of Bank of Windsor (the Bank) on BCF's claims for breach of contract,

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indemnification, negligent misrepresentation, accounting, and Rule 56(f) discovery
arising from BCF's participatory interest in a defaulted loan. BCF also appeals the
district court's grant of summary judgment in the Bank's favor for BCF's share of
attorney fees incurred in litigation on the defaulted loan.
We review a grant of summary judgment under a well-established standard.
Because this is a diversity action, we review de novo questions of state law. Having
considered the record and the parties' briefs, we are satisfied the district court
correctly applied the controlling state law, and that the record supports the district
court's rulings. First, the Bank did not breach the express terms of its agreement with
BCF, nor did it breach its contractual duty of care to BCF. Second, contrary to BCF’s
assertion, the Bank’s loan administration did not trigger the contractual
indemnification provision. Third, BCF cannot establish two elements of a negligent
misrepresentation claim: the required duty of care, or the falsity of the relevant
statements when made. Fourth, because BCF has not exercised its contractual rights
to access the Bank’s records, BCF is not entitled to a court-ordered equitable
accounting. Fifth, BCF has not met the requirements for discovery under Rule 56(f)
because it did not file an affidavit requesting such discovery; further, it is unclear
what additional information BCF could learn through discovery because BCF’s
contract with the Bank ensures BCF access to all of the Bank’s nonprivileged
documents for this loan. Finally, BCF is contractually obligated to pay a portion of
the litigation expenses the Bank incurred while the Bank attempted to recover on the
defaulted loan.
Having concluded that an extended opinion in this diversity case would serve
little to develop the law of this circuit, we affirm on the basis of the district court's
well-reasoned rulings without further discussion. See 8th Cir. R. 47B.

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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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