This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Rowlette & Associates,





Calphalon Corporation,

a Ohio corporation,


Brian Schlichter,



Filed April 18, 2000


Toussaint, Chief Judge


Hennepin County District Court

 File No. 9815686


Marcy S. Wallace, Cox, Goudy, McNulty & Wallace, P.L.L.P., 676A Butler Square, 100 Sixth Street North, Minneapolis, MN 55403 and


Richard L. Hendrickson, 2850 Metro Drive, Suite 321, Bloomington, MN 55425  (for appellant)


Paul James Robbennolt, Dorsey & Whitney, LLP, 220 South Sixth Street, Suite 1300, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Foley, Judge.*

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

Appellant Rowlette & Associates (Rowlette), challenges the district court’s determination that Ohio Law governs the parties’ agreement and subsequent dismissal of Rowlette’s claims under Minn. Stat. §§ 325E.37; 181.145 (1998).  Rowlette also contends the district court improperly: (1) granted summary judgment on its claims for breach of contract and tortious interference with contract and prospective economic advantage; and (2) ruled on respondent’s summary-judgment motion before additional discovery was complete.  Because we conclude Ohio law governs the parties’ agreement, we affirm the district court’s dismissal of appellant’s statutory claims.  Because there are no genuine issues of material fact with regard to appellant’s common law breach of contract or tortious interference with existing contracts and prospective business advantage claims, we affirm the district court’s grant of summary judgment.  Because the district court did not abuse its discretion in refusing to defer ruling on respondent’s summary-judgment motion to allow additional discovery, we affirm.


            Respondent Calphalon, an Ohio corporation with its principal place of business in that state, is a cookware manufacturer.  Calphalon assigned manufacturer’s representatives to regional territories to develop its business and promote the sale of its cookware products.  Rowlette, a closely-held Minnesota Corporation, served as a Calphalon representative for the territory encompassing the states of Minnesota, North Dakota, South Dakota, Iowa, and Nebraska.  While the parities’ original business relationship allowed unilateral termination upon 30 days written notice, on January 5, 1996, Calphalon informed Rowlette that it intended to adopt formal agreements to govern its business relations with all manufacturer’s representatives.

Calphalon’s 1996 manufacturer’s representative agreement stated:

            The term of this Agreement shall be one (1) year from date hereof and shall be renewable only in writing at the end of each year for additional year.  Representative understands that the company may elect not to renew this Agreement at its option and for whatever reasons it determines warrants such non-renewal, with or without cause.  The Company is not required to give Representative any advance notice of its intention not to renew this Agreement at the expiration of any given one year period.


Another provision stated, “This Agreement shall be interpreted under the laws of the State of Ohio.”  Rowlette did not attempt to negotiate any terms of the contract.  The first agreement between Calphalon and Rowlette governed the parties’ business relationship from February 1, 1996 to January 31, 1997.  An almost identical agreement, signed in January 1997, governed the relationship from February 1, 1997 to January 31, 1998.

            However, on August 21, 1997, Calphalon orally informed Rowlette of its intention to discontinue its use of manufacturer’s representatives and take its sales “in-house.”  Therefore, Jeff Cooley, Calphalon’s President, told Jerry Rowlette that Rowlette’s manufacturer’s representative contract would not be renewed for 1998.  On December 18, 1997, Rowlette received written “official notice” of Calphalon’s intent not to renew the contract for February 1, 1998 through January 31, 1999.

            In late 1997, Calphalon representatives began preliminary discussions with Target Stores, a division of Dayton Hudson Corporation, for sale of Calphalon products in its stores.  Actual negotiations commenced in March 1998, after Rowlette was informed “its contract would not be renewed.”  In June 1998, Calphalon contracted to sell its products in Target stores.  In addition, Target was not a customer assigned to Rowlette during his tenure as a Calphalon manufacturer’s representative, even though it is a subsidiary of Dayton Hudson, and Rowlette never represented Calphalon with regard to the products to be sold at Target.

            In February 1998, Calphalon notified Rowlette that commissions would be delayed until March 20, 1998.  Despite its demands for payment, Rowlette did not receive any commissions until checks were issued on April 21st and 28th.  Calphalon denied Rowlette’s request to solicit new lines at and prior to an annual trade show in Chicago in January 1998.  Instead, Calphalon requested that Rowlette spend time “transitioning” customers to Calphalon because its accounts were being taken in-house.

Rowlette commenced the present action against Calphalon and one of its sales managers, Brian Schlichter, on July 9, 1998.[1]  Rowlette’s complaint alleged Calphalon: (1) violated Minn. Stat. § 325E.37 (1998), which requires manufacturers to provide 90- day written notice of an intention not to renew a representation contract and only allows contract termination for cause; (2) violated Minn. Stat. § 181.145 (1998), which requires prompt payment of commissions upon demand after contract termination and imposing substantial penalty payments for delay; (3) breached the parties’ manufacturer representative contract; and (4) tortiously interfered with existing contracts and prospective economic advantage.

            Because Calphalon claimed serious difficulties in locating and reviewing documents, Rowlette moved to compel discovery in the present case on February 26, 1999.  On April 12, 1999, the district court ordered: (1) Calphalon to respond to Rowlette’s discovery requests fully and completely without objection within 30 days; and (2) that all dispositive motions should be heard “as soon as discovery allows,” but no later than June 30, 1999.  Although the deadline for court-ordered discovery was May 13, Calphalon moved for summary judgment on March 30, 1999.  Despite Rowlette’s requests for additional discovery and protest to the April 27 hearing date, the district court granted Calphalon’s motion for summary judgment on all counts in the complaint.  This appeal followed.



A.         Existence of Choice-of-Law Provision

            The parties’ agreement provided that it was to be “interpreted under the laws of the State of Ohio.”  The district court concluded that “the contractual language constitutes a choice-of-law provision * * *.”  Because the choice-of-law provision reads “interpreted under” not “governed by” Ohio law, appellant contends the provision is not an effective choice of law.  Instead, appellant argues the provision is limited to construction of the agreement and, as a matter of law, means “construed in accordance with.”  Appellant’s interpretation of the choice-of-law provision is an excessively narrow semantic argument. 

B.         Enforcement of Choice-of-Law Provisions

Minnesota courts traditionally enforce contractual choice-of-law provisions made “in good faith and without an intent to evade the law.”  Hagstrom v. American Circuit Breaker Corp., 518 N.W.2d 46, 48 (Minn. App. 1994) (quoting Combined Ins. Co. of Am. v. Bode, 247 Minn. 458, 464, 77 N.W.2d 533, 536 (Minn. 1956), review denied (Minn. Aug. 24, 1994).  See also Milbank Mut. Ins. Co. v. United States Fidelity & Guar. Co., 332 N.W.2d 160, 163 (Minn. 1983) (applying “choice-influencing-considerations” methodology to enforce the parties’ choice of law); Milliken and Co. v. Eagle Packaging Co., Inc., 295 N.W.2d 377, 380-n1 (Minn. 1980) (enforcing choice of law where parties agreed that the law of another state shall govern their agreement).  Appellant argues respondent added the choice-of-law provision in bad faith with intent to evade the law because: (1) the parties had done business without a choice-of-law clause for a number of years; (2) respondent chose to insert the clause into its agreements shortly before taking all its sales in-house; and (3) the clause antedated the enactment of Minn. Stat. § 325E.37 in 1980 and Minn. Stat. § 181.145 in 1984.  There is no evidence respondent acted in bad faith with intent to evade the law or appellant failed to understand that the parties, by their agreement, were choosing Ohio law. 

To determine whether a choice of law is necessary, a court must first determine whether there is an actual conflict between the legal rules of the two states.  Jepson v. General Cas. Co., 513 N.W.2d 467, 469 (Minn. 1994).  Where choosing one state’s law is “outcome determinative,” an actual conflict of law exists. Id.; Myers v. Government Emp. Ins. Co., 302 Minn. 359, 363, 225 N.W.2d 238, 241 (1974).  Minn. Stat. § 181.145 (1998) requires the prompt payment of commissions.  Although the Ohio statute in effect at the time had a similar requirement, corporations like Calphalon were exempted because they held their principal place of business in Ohio.  See Ohio Rev. Code 1335.11 (A)(2)(B)(1998).  While Minn. Stat. § 325E.37 (1998) governs notice requirements for the termination of manufacturer’s representatives, no Ohio statute protects manufacturer’s representatives.  Therefore, applying Ohio law is “outcome determinative” and an actual conflict exists.  Once it is determined an actual conflict exists, a court must ensure each state has sufficient contacts with the parties or transaction to constitutionally apply its law.  Jepson, 513 N.W.2d at 469.

[F]or a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.


Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13, 101 S. Ct. 633, 640 (1981).  In addition to being the forum state, Minnesota is Rowlette’s state of incorporation and the state where many of Rowlette’s actions as a Calphalon manufacturer’s representative occurred.  Calphalon is incorporated in Ohio and has its principal place of business in that state.  Because both states have significant contacts with the parties and their agreement, the application of either state’s law would be neither arbitrary nor fundamentally unfair.

The next step in choice-of-law analysis is to consider certain choice-influencing factors.  Nodak Mut. Ins. Co. v. American Family Mut. Ins. Co, 604 N.W.2d 91, 94 (Minn. 2000).  The relevant factors are:

(1) [p]redictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interest; and (5) application of the better rule of law. 


Id.; Jepson, 513 N.W.2d at 470; Milkovich v. Saari, 295 Minn. 155, 161, 203 N.W.2d 408, 412 (1973)).

1.         Predictability of Results

The first factor, predictability of results, represents the ideal that litigation on the same facts, regardless of where the litigation occurs, should be decided the same to avoid forum shopping.


Nodak, 604 N.W.2d at 94 (citing Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, 282-83 (1966)).  Predictability also preserves the parties’ contractual expectations by enhancing certainty as to which state’s law will govern future contract-based disputes.  Id.  While appellant contends it was never notified of respondent's intention to have Ohio laws govern the parties’ agreement, the choice-of-law provision was aimed at preserving contractual expectations and providing effective notice that Ohio law would apply.  The predictability factor favors Ohio law.

2.         Maintenance of Interstate Order

With regard to the second factor, the primary consideration is whether the application of the forum’s law would manifest disrespect for the other state’s law or impede the interstate movement of people and goods.  Nodak, 604 N.W.2d at 95; see also Robert A. Leflar, American Conflicts Law § 104, at 207, 208 (3rd ed. 1977).  Although the forum state has an identifiable interest, this factor “requires deference to a sister state’s legal rules when that state has a substantial concern with the problem.”  Leflar, American Conflicts Law § 104, at 208 (explaining that deference to the state with a greater interest in the litigation involves examining the contacts between the transaction and the states).  Additionally, in an attempt to maintain a coherent legal system, “courts of different states [should] strive to sustain, rather than subvert, each other’s interests in areas where their own interests are less strong.” Nodak, 604 N.W.2d at 95 (quoting Jepson, 513 N.W.2d at 471). 

In 1994, this court addressed whether a contractual choice-of-law provision, which directly conflicts with a specific Minnesota statute, is enforceable.  Hagstrom, 518 N.W.2d at 48-49.  In that case, the appellant argued the choice-of-law provision should not be enforced because it violates Minnesota’s public policy interest of providing greater remedies as embodied in Minn. Stat. § 325E.37.  In response to a similar challenge, the Minnesota legislature amended the Minnesota Franchise Act to void choice-of-law provisions that waive compliance with the Act.  Id. At 48; see 1989 Minn. Laws ch. § 2.  Because Minn. Stat. § 325E.37 does not have a provision limiting choice of law provisions and Minnesota has a longstanding policy of enforcing contractual choice-of-law provisions, this court upheld the parties’ choice of law.  Hagstrom, 518 N.W.2d at 48-49 (holding Minnesota’s remedial policy interest does not override its traditional enforcement of choice-of-law provisions).

 Minnesota statutory law addresses the termination of manufacturer’s representatives and payment of commissions.  See Minn. Stat. §§ 325E.37; 181.145.  While these statutes demonstrate Minnesota’s policy in favor of providing remedies, neither statute precludes parties from choosing another state’s law to govern their agreements.  Minnesota has also consistently enforced contractual choice-of-law provisions.  Furthermore, Ohio chose not to address manufacturer’s representative agreements and explicitly excludes corporations like Calphalon from its statute dealing with the payment of commissions.  Although Minnesota has an interest in protecting manufacturer’s representatives, we cannot conclude those interests are more significant than its long-standing policy of enforcing contractual choice of law provisions. See Hagstrom, 518 N.W.2d at 48-49.  Because the agreement clearly selected Ohio law, this factor favors Ohio law. 

3.         Simplification of the Judicial Task

Simplification of the judicial task has not been given much weight in this court’s precedent.  Nodak, 604 N.W.2d at 95.  See Jepson, 513 N.W.2d at 472 (stating this “is not a significant factor * * * because the law of either state could be applied without difficulty”).  “[T]his factor is primarily concerned with the clarity of conflicting laws.”  Nodak, 604 N.W.2d at 95.  Because there is no challenge to the practicality of applying or clarity for interpreting Minnesota or Ohio law, this factor favors neither state’s law.

4.         Interest of the Forum

This factor is aimed at determining “which choice of law most advances a significant interest of the forum.”  Id. (quoting Jepson, 513 N.W.2d at 472).  Appellant contends Minnesota enacted the statutes at issue in this case to protect small regional businesses headquartered in Minnesota, such as Rowlette & Associates.  Appellant also argues the Minnesota legislature intended the statutes to prevent national corporations, with superior bargaining power, from coercing smaller concerns into unfair contracts that allow the abrupt termination of business relationships and withholding of commissions. 

Each state has a significant state interest in having its law applied.  While Minnesota expressed its governmental interests in enacting statutes with regard to the termination of manufacturer’s representative agreements and the payment of commissions, Ohio has chosen not to address those issues or expressly exclude certain entities from such statutes.  Despite its interest in protecting manufacturer’s representatives, Minnesota has a long-standing policy of enforcing contractual choice of law provisions.  See Hagstrom, 518 N.W.2d at 48-49 (explaining that statutory policy interests do not override Minnesota’s historical enforcement of contractual choice of law provisions).  Because the parties, by their agreement, clearly selected Ohio law, this factor favors Ohio law.

5.         Better Rule of Law

            In Nodak, the Minnesota Supreme Court explained that the better rule factor has not been an important consideration in nearly 20 years.  604 N.W.2d at 96.  Therefore, it is unnecessary to address it here.  Because applying Ohio law: (1) preserves the parties’ justified contractual expectations; (2) helps maintain interstate order; and (3) advances Minnesota’s strong policy of enforcing contractual choice-of-law provisions, the district court correctly applied Ohio law.


[S]ummary judgment is appropriate where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact” and either party is entitled to judgment “as a matter of law.”


W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998) (quoting Minn. R. Civ. P. 56.03).  On an appeal from a grant of summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

However, a reviewing court “must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  To resist summary judgment, the nonmoving party “must do more than rest on mere averments.”  Id. at 71.  A genuine issue for trial “must be established by substantial evidence.”  Id. at 69-70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).

A.         Breach-of-Contract Claim

            The district court dismissed appellant’s breach of contract claims because the parties’ agreement allowed respondent to elect not to renew the agreement for any reason and without providing notice.  While not required to do so, respondent provided oral notice on August 21, 1997 and written notice on December 18, 1997, of its intention not to renew Rowlette’s contract for 1998.  Because the district court focused solely on respondent’s failure to renew the agreement for 1998, appellant contends the court overlooked other breach of contract theories. Specifically, appellant argues respondent breached the parties’ agreement by: (1) wrongfully taking the Dayton Hudson account in-house in 1997; (2) failing to pay appellant all its earned commissions; and (3) negotiating a direct agreement with Target during the term of the parties’ 1997 Agreement.

            With regard to its breach of contract claim, appellant’s memorandum in opposition to summary judgment stated:

Calphalon asserts that it did not breach its contract with Rowlette, applying Ohio law.  It provides no case or statutory citation for its assertion.  The question of whether Rowlette’s 1997 Agreement was breached by Defendants’ actions is a fact question for the trier of fact after considering all the evidence submitted by the parties.  Depositions have yet to be taken in this case; Calphalon’s attempt to dispose of this claim by summary judgment is premature and predicated on misplaced reliance upon Ohio law.


Appellant did not reference a contract provision or allege specific conduct constituting a breach of the contract.  Appellant only contends: (1) the occurrence of a breach is a fact question; (2) “summary judgment [was] premature” because depositions have yet to be taken; and (3) summary judgment was erroneously predicated on Ohio law.

To resist summary judgment, the nonmoving party cannot “rest on mere averments” and must establish a genuine issue for trial by substantial evidence. DLH, Inc., 566 N.W.2d at 69-71.  Here, appellant has not gone beyond its pleadings and the evidence presented to the district court does not raise a genuine issue of material fact.  On appeal, Rowlette argues the facts supporting its statutory claims are incorporated by reference to support its common law breach of contract claims.

While appellant argues the complaint presents evidence that respondent breached the parties’ agreement by taking the Dayton Hudson account in-house, the complaint only states that appellant “re-alleges paragraphs 1 through 33 of its Complaint as fully set forth herein.”  The only specific allegation concerning Dayton Hudson was the claim that respondent violated Minn. Stat. § 325E.37, subd. 2 (1998) by terminating appellant’s representation of Dayton Hudson.  Additionally, appellant contends Rowlette’s affidavit, submitted in opposition to respondent’s summary-judgment motion, supports its breach of contract claim for wrongfully taking the Dayton Hudson account in house.  Rowlette’s affidavit does not allege breach of contract.  It merely states Rowlette was the exclusive representative for the entire Dayton Hudson Corporation in the territory until respondent took the account in-house.

Similarly, appellant argues re-alleging each paragraph of the complaint regarding Counts I-III and Rowlette’s affidavit provide sufficient evidence that respondent breached the contract by failing to pay appellant all earned commissions.  The complaint does not allege that failing to pay commissions violated the contract.  The complaint only discusses such conduct as a violation of Minn. Stat. § 181.145 (1998).  Furthermore, Rowlette’s affidavit does not allege that respondent’s nonpayment of commissions breached the contract.

Appellant also argues Rowlette’s affidavit supports its claim that respondent breached the agreement by negotiating with Target during the term of the agreement.  Rowlette’s affidavit only states that he became aware of respondent’s negotiations with Target after the expiration of the 1997 representative agreement.  See Gutwein v. Edwards, 419 N.W.2d 809, 812 (Minn. App. 1988) (explaining that affidavits “must contain more than unsupported conclusionary facts and unwarranted opinions or legal conclusions”).  The other evidence showed: (1) the contract did not prohibit respondent from negotiating or contracting with Target; (2) discussions with Target in late 1997 were “preliminary discussions” and formal discussions did not begin until March 1998, after appellant’s contract expired; and (3) respondent did not enter an agreement with Target until June 1998.

While the district court’s dismissal of appellant’s breach of contract claim only discussed respondent’s failure to renew the 1997 manufacturer’s representative agreement, the pleadings, affidavits, and other materials did not apprise the court or respondent of appellant’s other breach of contract theories.  Respondent, as the party moving for summary judgment, has the burden of demonstrating that no genuine issue of material fact exists.  Ritter v. M.A. Mortenson Co., 352 N.W.2d 110, 113 (Minn. App. 1984).  However, because appellant’s complaint only alleged generally that respondent breached the contract, respondent had no reason to anticipate or refute by affidavit or evidence any of appellant’s three alternative breach of contract theories.  Appellant cannot be allowed to create factual disputes on appeal.  See Midway Nat’l Bank v. Bollmeier, 474 N.W.2d 335, 339 (Minn. 1991) (refusing to consider issues raised by a losing party for the first time on appeal).

B.         Tortious Interference with Existing Contracts Claim

To state a claim for tortious interference with contract, appellant must establish: (1) the existence of a contract; (2) knowledge of the contract; (3) intentional procurement of the contract’s breach; (4) absence of justification; and (5) damages.  Furlev Sales & Assoc., Inc., v. North Am. Automotive Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982).  A successful claim requires proof of all five elements.  St. Jude Med., Inc. v. Medtronic, Inc., 536 N.W.2d 24, 30 n.6 (Minn. App. 1995), review denied (Minn. Oct. 27, 1995).  Summary judgment is appropriate where the plaintiff fails to establish one element of the claim.  Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 127 (Minn. App. 1998).

While Rowlette argues its “business relationships” with other manufacturers and retailers constitute existing contracts, there is no evidence appellant’s previous relationships with unnamed manufacturers were contractual relationships.  Rowlette also contends Calphalon breached the contract by bringing the Dayton Hudson account in house and by negotiating directly with Target.  To the extent Rowlette contends Calphalon’s conduct breached the parties’ contract, a party’s breach of it’s own contract is not actionable as tortious interference with contractual relations.  Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 901 (Minn. 1982).  Rowlette cannot contend Calphalon’s conduct breached its contract with Dayton Hudson or Target because there was no such contract.  Rowlette was merely Calphalon’s exclusive representative to Dayton Hudson in the territory.  Moreover, the Rowlette-Calphalon contract prohibited appellant from selling Calphalon Products for its own account without respondent’s consent.  Because appellant failed to show the existence of a contract, its tortious interference claim must be dismissed.  See Hansen v. Phillips Beverage Co., 487 N.W.2d 925, 927 (Minn. App. 1992) (affirming summary judgment on tortious interference with contract claim because no contract existed).

Even if appellant’s “business relationships” constituted existing contracts, there is no evidence Calphalon intentionally procured the breach of any contracts.  On November 18, 1993, Calphalon sent a letter asking all Calphalon representatives to reduce their vendor lines to five by May 1, 1994.  Rowlette argues Calphalon’s request that it voluntarily discontinue its representation of 14 unnamed manufacturers satisfies the requirement that respondent intentionally procured the breach of existing contracts. Because the agreement permitted Calphalon to request that its representatives commit more fully to Calphalon’s business, we cannot conclude the letter was an intentional procurement of the breach of the parties’ contract.  Rowlette also failed to establish the third element.  See Sterling Capital Advisors, 575 N.W.2d at 127 (granting summary judgment on tortious interference claim because no breach occurred).

C.        Tortious Interference with Prospective Business Relations

Because appellant failed to: (1) prove respondent intentionally committed a wrongful act improperly interfering with a prospective relationship, and (2) allege interference with a specific contractual relationship, the district court dismissed appellant’s tortious interference claim. 

A cause of action for interference with prospective business relations lies when one intentionally and improperly interferes with another’s prospective business relation by (1) inducing a third person not to enter into or to continue the prospective relation, or (2) preventing the other from continuing the prospective relationship.


Hough Transit, Ltd. v. National Farmers Org., 472 N.W.2d 358, 361 (Minn. App. 1991) (citing United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632-33 (Minn. 1982)).

            Rowlette’s affidavit explains that respondent barred appellant from soliciting new “competitive” lines at an annual trade show in Chicago in January 1998.  While respondent instructed appellant not to solicit new lines at the trade show, there is no evidence respondent intentionally interfered with any prospective business relations.  See Hunt v. Univ. of Minnesota, 465 N.W.2d 88, 95 (Minn. App. 1991) (requiring proof that “defendant intentionally committed a wrongful act which improperly interfered with the prospective relationship”).  Appellant did not specifically reference any manufacturer by name as a prospective business relation.    “[T]he mere general loss of possible unspecified customers does not establish the tort of intentional interference with prospective economic relations under Minnesota law.”  International Travel Arrangers v. NWA, Inc., 991 F.2d 1389, 1405 (8th Cir. 1993).  To survive summary judgment, appellant must demonstrate that respondent influenced a prospective customer’s decision to enter into a contract.  Sports & Travel Marketing, Inc. v. Chicago Cutlery Co., 811 F.Supp. 1372, 1382 (D. Minn. 1993).  Because appellant merely alleged that it had “missed an entire year’s opportunity to obtain new, significant lines,” there is no evidence that respondent affected any prospective contracts.

D.        Claims against Co-Defendant Schlichter

Appellant also sued Brian Schlichter individually for tortious interference with existing contracts and prospective business advantage.  An employee of a corporation is “shielded from personal liability for interference with contracts if [he] merely cause[s] the corporation not to perform the contract.”  Furlev, 325 N.W.2d at 26 (citations omitted); see also Nordling v. Northern States Power Co., 478 N.W.2d 498, 505-06 (Minn. 1991) (explaining that a corporate employee is not liable for tortious contract interference unless acting outside the scope of his or her duties).  Because there is no evidence Schlichter acted outside the scope of his duties or Calphalon’s interests, appellant’s claim is unsuccessful as a matter of law.


            Appellant contends the district court erroneously refused to defer ruling on respondent’s summary-judgment motion until additional discovery was completed.  A court has considerable discretion in setting the procedural calendar of a case and may continue a summary judgment motion to allow additional discovery where the non-moving party is unable to present facts essential to its opposition to the motion.  See Minn. R. Civ. P. 56.06; Port Authority v. Harstad, 531 N.W.2d 496, 501 (Minn. App. 1995), review denied (Minn. June 14, 1995).  While “continuances should be liberally granted,” a court must consider whether the party seeking additional discovery: (1) was diligent in its discovery requests prior to the summary judgment motion; and (2) has a good-faith belief material facts will be discovered.  Bixler by Bixler v J.C. Penney Co.,., 376 N.W.2d 209, 216 (Minn. 1985).

A.         Diligence

            On February 26, 1999, Rowlette moved to compel Calphalon to answer all interrogatories and provide all requested documents.  The district court issued an order on April 12, 1999, compelling respondent to respond to appellant’s discovery requests fully and completely without objection within 30 days.  Appellant argued it had not taken depositions because it could not meaningfully depose the necessary persons before discovery requests had been produced and reviewed.  Because the record shows Rowlette diligently sought discovery, the propriety of the district court’s ruling turns on whether appellant’s additional discovery requests were good-faith attempts to uncover material facts.

B.         Good-Faith Belief

            Minnesota courts routinely refuse to continue a summary judgment motion to allow additional discovery when the party is merely conducting a “fishing expedition” or fails to specify what evidence is sought.  See, e.g., Bolton v. Department of Human Servs., 527 N.W.2d 149, 153 (Minn. App. 1995) (denying continuance because plaintiff merely claimed supportive evidence was available), rev’d on other grounds, 540 N.W.2d 523 (Minn. 1995); Holmes v. Winners Entertainment, Inc., 531 N.W.2d 502, 505-06 (Minn. App. 1995) (denying continuance because “[t]here [was] little likelihood that additional discovery would supply evidence to support [plaintiff’s] claim”).  Granting summary judgment before discovery is completed is proper where additional discovery would neither aid the district court in determining whether material fact issues existed nor change the ultimate result.  McCormick v. Custom Pools, Inc., 376 N.W.2d 471, 477 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).  A district court’s refusal to grant a continuance for further discovery will not be overturned absent an abuse of discretion.  Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).

            Here, Rowlette failed to specify what evidence sought and how additional discovery would uncover relevant facts to prevent summary judgment.  Because the parties chose Ohio law to govern their agreement, additional discovery will not aid the court in determining the applicable law or change the result.  Similarly, additional discovery would not aid the court in determining whether fact issues exist regarding appellant’s alternative theories of breach.  Moreover, the district court dismissed the tortious interference claims because appellant had not specified any existing or prospective contracts with which respondent had interfered.  Because appellant had access to the only existing contract and to information regarding any alleged interference with prospective contracts, additional discovery was not warranted.  Because Rowlette did not specify what evidence it sought and no evidence could support plaintiff’s lawsuit, the district court did not abuse its discretion in granting summary judgment without additional discovery.

The district court properly concluded the parties chose Ohio law to govern their business relations. Summary judgment was appropriate because the district court: (1) properly concluded there were no genuine issues of material fact with regard to appellant’s common law breach of contract or tortious interference with existing contracts claims; and (2) did not abuse its discretion ruling on respondent’s summary judgment motion without additional discovery.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In May 1998, Calphalon brought an action in Federal District Court for the Northern District of Ohio seeking a declaratory judgment that the 1997 manufacturer’s representative agreement was governed by Ohio law and that Calphalon did not owe Rowlette any commissions.  The court dismissed Calphalon’s action on September 28, 1998 for lack of personal jurisdiction and denied Calphalon’s motion for reconsideration on November 20, 1998.  Calphalon appealed the dismissal to the Sixth Circuit Court of Appeals.