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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AMERICAN LICORICE COMPANY,

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Plaintiff,

No. C-13-1929 EMC
ORDER RE SUPPLEMENTAL BRIEFING

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For the Northern District of California

United States District Court

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v.
TOTAL SWEETENERS, INC., individually
and doing business as BATORY FOODS,
INC.,
Defendant.
___________________________________/

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On August 14, 2014, Defendant Total Sweeteners, Inc. filed a motion for summary

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judgment. In that motion, Defendant argues summary adjudication is appropriate with regards to the

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issue of whether the December 2011 Sales Contract, see FAC Ex. A, was lawfully modified by later

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Purchase Orders sent from Plaintiff to Defendant. FAC Ex. B; Docket No. 94.

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Notwithstanding this Court’s prior language stating that mutual assent to potentially modify

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the Sales Contract is an issue properly reserved for resolution by the jury, Docket No. 31, Defendant

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now cites United States Surgical Corp. v. Orris, Inc., 5 F. Supp. 2d 1201 (D. Kan 1988) and TRA

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Indus. v. Valspar Corp., 72 U.C.C. Rep. Serv. 2d 808 (W.D. Wash. 2010) for the proposition that a

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party’s assent to a purported contract modification “cannot be inferred merely from a party’s

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conduct in continuing with [an existing] agreement.” United States Surgical Corp., 5 F. Supp. 2d at

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1206; see also TRA Indus., 72 U.C.C. Rep. Serv. 2d 808 (“Actions taken in accordance with an

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existing contractual obligation cannot indicate assent to a modification thereof. For a party’s course

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of performance to indicate assent to a modification, the performance must . . . differ from the

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performance already required of the party by the existing contract.”) (citing Arizona Retail Sys. v.

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Software Link, 831 F. Supp. 759 (D. Ariz. 1993); Alaska Pacific Trading Co. v. Eagon Forest

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Prods., 933 P. 2d 417 (Wash. Ct. App. 1997)); Wachter Mgmt. Co. v. Dexter & Chaney, Inc., 144 P.

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3d 747, 755 (Kan. 2006) (holding that party’s “actions in continuing the preexisting contract do not

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constitute express assent to the terms” contained in a later proposal to modify that contract);

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Western Sky Indus. v. Colttech, LLC, 69 U.C.C. Rep. Serv. 2d 566 (D. Kan 2009) (“The fact that a

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party continues in a contract after additional or different terms have been received by that party is

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not sufficient to establish consent to those additional or different terms.”).

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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

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For the Northern District of California

United States District Court

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contrary authority, if any, with particular emphasis on authority from courts interpreting or applying

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the relevant law(s) of California, Illinois, or Oregon. Plaintiff may not attempt to supplement the

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existing summary judgment record or otherwise put new facts before the Court. Plaintiff’s

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supplemental brief is due no later than Tuesday, September 23, 2014.

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IT IS SO ORDERED.

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Dated: September 15, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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