American Licorice Company v. Total Sweeteners, Inc. et al

Filing 104

ORDER Re Supplemental Briefing Re 94 . Signed by Judge Edward M. Chen on 9/15/2014. (emcsec, COURT STAFF) (Filed on 9/15/2014)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 AMERICAN LICORICE COMPANY, 9 Plaintiff, No. C-13-1929 EMC ORDER RE SUPPLEMENTAL BRIEFING 11 For the Northern District of California United States District Court 10 12 13 v. TOTAL SWEETENERS, INC., individually and doing business as BATORY FOODS, INC., Defendant. ___________________________________/ 14 15 16 On August 14, 2014, Defendant Total Sweeteners, Inc. filed a motion for summary 17 judgment. In that motion, Defendant argues summary adjudication is appropriate with regards to the 18 issue of whether the December 2011 Sales Contract, see FAC Ex. A, was lawfully modified by later 19 Purchase Orders sent from Plaintiff to Defendant. FAC Ex. B; Docket No. 94. 20 Notwithstanding this Court’s prior language stating that mutual assent to potentially modify 21 the Sales Contract is an issue properly reserved for resolution by the jury, Docket No. 31, Defendant 22 now cites United States Surgical Corp. v. Orris, Inc., 5 F. Supp. 2d 1201 (D. Kan 1988) and TRA 23 Indus. v. Valspar Corp., 72 U.C.C. Rep. Serv. 2d 808 (W.D. Wash. 2010) for the proposition that a 24 party’s assent to a purported contract modification “cannot be inferred merely from a party’s 25 conduct in continuing with [an existing] agreement.” United States Surgical Corp., 5 F. Supp. 2d at 26 1206; see also TRA Indus., 72 U.C.C. Rep. Serv. 2d 808 (“Actions taken in accordance with an 27 existing contractual obligation cannot indicate assent to a modification thereof. For a party’s course 28 of performance to indicate assent to a modification, the performance must . . . differ from the 1 performance already required of the party by the existing contract.”) (citing Arizona Retail Sys. v. 2 Software Link, 831 F. Supp. 759 (D. Ariz. 1993); Alaska Pacific Trading Co. v. Eagon Forest 3 Prods., 933 P. 2d 417 (Wash. Ct. App. 1997)); Wachter Mgmt. Co. v. Dexter & Chaney, Inc., 144 P. 4 3d 747, 755 (Kan. 2006) (holding that party’s “actions in continuing the preexisting contract do not 5 constitute express assent to the terms” contained in a later proposal to modify that contract); 6 Western Sky Indus. v. Colttech, LLC, 69 U.C.C. Rep. Serv. 2d 566 (D. Kan 2009) (“The fact that a 7 party continues in a contract after additional or different terms have been received by that party is 8 not sufficient to establish consent to those additional or different terms.”). 9 Plaintiff is hereby ordered to file a supplemental brief, not to exceed seven (7) pages in length, addressing the legal authorities cited above. Plaintiff should also provide the Court with 11 For the Northern District of California United States District Court 10 contrary authority, if any, with particular emphasis on authority from courts interpreting or applying 12 the relevant law(s) of California, Illinois, or Oregon. Plaintiff may not attempt to supplement the 13 existing summary judgment record or otherwise put new facts before the Court. Plaintiff’s 14 supplemental brief is due no later than Tuesday, September 23, 2014. 15 16 IT IS SO ORDERED. 17 18 Dated: September 15, 2014 19 _________________________ EDWARD M. CHEN United States District Judge 20 21 22 23 24 25 26 27 28 2

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