Linde, LLC v. Valley Protein, LLC et al

Filing 64

ORDER DIRECTING SUPPLEMENTAL BRIEFING signed by District Judge Dale A. Drozd on 1/19/2019. (The parties' briefing shall be limited to fifteen pages each. Upon submission of this further briefing, the motion will be re-submitted for decision.) (Thorp, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LINDE, LLC,

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No. 1:16-cv-00527-DAD-EPG
Plaintiff,

v.

ORDER DIRECTING SUPPLEMENTAL
BRIEFING

VALLEY PROTEIN, LLC,

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Defendant.

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VALLEY PROTEIN, LLC,
Counter-claimant,

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v.
LINDE, LLC,
Counter-defendant.

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On September 18, 2018, the court heard oral argument on plaintiff and counter-defendant

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Linde, LLC’s (“Linde”) motion for summary judgment. (Doc. No. 52.) Among several issues

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raised by the court at that hearing was the matter of the appropriate choice of law. Although

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Linde’s motion was based on California law, defendant Valley Protein, LLC’s (“Valley Protein”)

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opposition pointed out that the relevant agreements in this case contained choice of law

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provisions dictating that New Jersey law governed interpretation of those agreements. (Doc. No.

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53 at 17.) Although not conceding that New Jersey law applied, Linde nonetheless devoted its

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reply to explaining how it was entitled to summary judgment under the laws of New Jersey.

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(Doc. No. 58.) Both in its reply and at the hearing on the pending motion, Linde’s counsel

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requested that if the court were inclined to deny Linde’s motion on the ground that it was based

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on the law of an improper forum, that any denial be without prejudice.

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Summary judgment is appropriate when the moving party “shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). Implicit in this, of course, is citation to appropriate legal authority. See Adickes v.

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S. H. Kress & Co., 398 U.S. 144, 161 (1970) (“[T]he party moving for summary judgment has the

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burden to show that he is entitled to judgment under established principles; and if he does not

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discharge that burden then he is not entitled to judgment.”). While the court will exercise its

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discretion and consider the arguments raised for the first time in Linde’s reply, see United States

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v. Gianelli, 543 F.3d 1178, 1184 n.6 (9th Cir. 2008), the court observes that Linde’s reply does

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not address all relevant causes of action. In particular, Linde has provided no briefing as to the

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viability of its claims for account stated and goods and services rendered under New Jersey law.

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Because Linde bears the burden on this point, it is obligated to provide the legal basis for the

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granting of summary judgment.
The court has considered Linde’s suggestion that summary judgment be denied without

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prejudice. However, in the interest of conserving valuable judicial resources, the undersigned

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concludes that an additional round of briefing should be sufficient to address the court’s concerns.

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Accordingly, within fourteen days from the date of service of this order, Linde is directed to file

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supplemental briefing as to its third and fourth causes of action, explaining on what legal basis it

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is entitled to judgment as a matter of law as to these claims.1 Upon filing of Linde’s

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Alternatively, if Linde concludes that it is not entitled to judgment as to these claims, it should
so state in its supplemental briefing.
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supplemental brief, Valley Protein will be granted a further fourteen days to respond to Linde’s

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submission, and is hereby also permitted to respond to any arguments raised for the first time in

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Linde’s reply brief. The parties’ briefing shall be limited to fifteen pages each. Upon submission

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of this further briefing, the motion will be re-submitted for decision.

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IT IS SO ORDERED.

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Dated:

January 19, 2019
UNITED STATES DISTRICT JUDGE

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