Can defendants win summary judgment by showing lack of current evidence during ongoing discovery? Advanced Forming Technologies, LLC v. Permacast, LLC Explained

The Utah Court of Appeals in Advanced Forming Technologies, LLC v. Permacast, LLC addressed a critical timing issue in summary judgment practice: when can defendants successfully move for summary judgment based on a plaintiff’s failure to present evidence while discovery remains open?

Background and Facts

AFTEC licensed its patented StoneTree concrete wall system to Permacast for use in Florida. After nearly three years, AFTEC terminated the license, alleging Permacast violated the agreement by failing to properly mark components, claiming AFTEC’s intellectual property, and other breaches. AFTEC sued for breach of contract and interference with economic relations, seeking approximately $560,000 in damages related to advertising, marketing, and support costs. The parties had stipulated to an open-ended discovery period that remained in effect when Permacast moved for summary judgment.

Key Legal Issues

The central issue was whether Permacast could obtain summary judgment by arguing that AFTEC had “failed to provide any evidence showing damages” and had not disclosed expert witnesses, even though discovery remained open and no deadlines had expired.

Court’s Analysis and Holding

The court reversed, holding that when a defendant moves for summary judgment before discovery closes, it bears the burden of proving entitlement to judgment as a matter of law. Permacast failed to meet this standard by merely pointing to AFTEC’s current lack of evidence. The court distinguished cases where expert designation deadlines had passed, making it legally impossible for plaintiffs to prove their claims, from situations like this where discovery remained ongoing. Since the parties had agreed to open-ended discovery, AFTEC remained free to engage expert witnesses to prove damages.

Practice Implications

This decision reinforces that defendants seeking early summary judgment must demonstrate legal barriers to the plaintiff’s claims, not merely evidentiary gaps during ongoing discovery. Practitioners should ensure that summary judgment motions filed before discovery closes establish legal entitlement to judgment rather than relying solely on the plaintiff’s current inability to prove damages or other elements.