JTS Choice Enterprises, Inc. v. E.I. Du Pont De Nemours and Company et al

Filing 495

ORDER denying 412 Counterclaim Defendants Motion for Summary Judgment on the Amended Counterclaim; and Given the reduction in the claims at issue in this case, the 7 day jury trial set to commence on December 8, 2014 is SHORTENED. Trial REMAINS SET to begin at 8:00 a.m. on December 8, 2014, but will continue for only 5 days. The Final Trial Preparation Conference REMAINS SET for 2:00 p.m. on Friday, November 21, 2014, by Judge William J. Martinez on 7/30/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-03143-WJM-KMT
JTS CHOICE ENTERPRISES, INC.,
Plaintiff/Counter-Defendant,
v.
E.I. DUPONT DE NEMOURS AND COMPANY,
Defendant/Counter-Plaintiff.

ORDER DENYING PLAINTIFF/COUNTER-DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT ON THE AMENDED COUNTERCLAIM

Plaintiff/Counter-Defendant JTS Choice Enterprises (“JTS”) originally brought
this action against Defendant/Counter-Plaintiff E.I. DuPont De Nemours and Company
(“DuPont”) alleging that DuPont engaged in anticompetitive actions that violated various
federal and state laws. (Sec. Am. Compl. (“SAC”) (ECF No. 100) pp. 17-28.) The
Court has entered summary judgment in favor of DuPont on all of the original claims,
and they are no longer pending in this action. (ECF No. 467.)
On March 27, 2013, DuPont filed its Amended Counterclaims against JTS for
breach of contract and unjust enrichment. (ECF No. 174.) Before the Court is JTS’s
Motion for Summary Judgment on the Amended Counterclaim (“Motion”). (ECF No.
412.) For the reasons set forth below, the Motion is denied.
I. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
The Court must resolve factual ambiguities against the moving party, thus favoring the
right to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. RELEVANT FACTUAL BACKGROUND
The following factual background contains only those facts relevant to the
Amended Counterclaim, and the facts are viewed in the light most favorable to DuPont.
DuPont manufactures coatings used to repaint automobiles. (SAC ¶ 8.) DuPont
sells its paint products to distributors—called “Jobbers”—who then resell the products to
auto body repair shops. (Id.) JTS was a Jobber for DuPont in the Colorado market
from 1991 until 2011. (Fallows Dep. (ECF No. 350-1) pp. 34-35.)
Since 2006, DuPont has operated a loyalty-based rewards program for its
Jobbers called the Champion Program. (Small Dep. (ECF No. 347-2) p. 35.) As part of
the Program, Jobbers were able to gain Empowerment Dollars, which could be used to

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garner new business or retain existing business by offering discounts and incentives to
customers. (ECF No. 347-11 at 13.) JTS participated in the Champion Program and
had an account of Empowerment Dollars. (See ECF No. 414.) As pertinent to this
case, on February 3, 2009, JTS signed a contract to participate in the Champion
Program until December 31, 2009 (“2009 Empowerment Agreement” or “2009 EA”).
(Id.) The 2009 Empowerment Agreement placed conditions on how Jobbers could
allocate Empowerment Dollars to shops, and had penalty provisions if the contract was
breached. (Id.)
In 2006, JTS re-negotiated its contract with Phil Long Collision Center (“2006
Shop Contract”). (ECF No. 412-2.) The 2006 Shop Contract required Phil Long to use
exclusively DuPont paint products, and also to make minimum yearly purchases. (Id.)
In exchange, JTS provided Phil Long certain equipment, as well as discounts in excess
of $300,000. (Id.)
On March 8, 2007, JTS and DuPont entered into a Business Investment
Agreement (“BIA”). (ECF No. 412-1.) The BIA stated that DuPont would pay JTS
$300,000 to reimburse JTS for the discounts it had provided to Phil Long. (Id. § 3.) In
exchange for this reimbursement, JTS agreed to purchase minimum quantities of
DuPont products for the next five years. (Id. § 5.) The penalty provisions of the BIA
provided that, in the event Phil Long changed to a competitor’s paint, JTS would pay
DuPont liquidated damages of $300,000. (Id. § 6.) The BIA also stated that, if JTS
sold its business, it would immediately pay DuPont $300,000. (Id. § 7.)
On June 10, 2009, JTS executed a new shop contract with Phil Long (“2009

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Shop Contract”). (ECF No. 412-8.) To secure the 2009 Shop Contract, JTS made a
$100,000 investment in Phil Long by way of two checks, each for $50,000. (ECF No.
412-19.) DuPont subsequently deposited $100,000 in Empowerment Dollars (in two
installments of $50,000) into JTS’s account. (ECF Nos. 429-7, 429-8.)
In March 2011, Phil Long stopped using DuPont products and changed to a
competing paint line. (ECF No. 412-5 at 32.) JTS and Phil Long thereafter agreed that
Phil Long would pay $390,000 to JTS, and such payment was made on May 6, 2011.
(ECF No. 430-11.) JTS has refused to pay to DuPont any of the funds it received from
Phil Long or to repay any of the money it received under the BIA.
III. ANALYSIS
DuPont’s Amended Counterclaims bring three causes of action: (1) breach of
contract arising out of the BIA; (2) breach of contract arising out of the 2009
Empowerment Agreement; and (3) unjust enrichment. (ECF No. 174.) JTS moves for
summary judgment on each claim. (ECF No. 412.)
A.

Breach of Contract
It has long been the law in Colorado that a party attempting to recover on a claim

for breach of contract must prove the following elements: (1) the existence of a
contract; (2) performance by the plaintiff or some justification for nonperformance; (3)
failure to perform the contract by the defendant; and (4) resulting damages to the
plaintiff. W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992). The Court will
separately address whether DuPont has shown a genuine dispute of fact as to each of
its breach of contract claims.

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1.

Business Investment Agreement

With regard to the BIA, JTS argues that DuPont’s claim is untimely, and that JTS
has fully performed its obligations under the contract such that there was no breach.
(ECF No. 412 at 7-16.)
a.

Timeliness of the Claim

JTS contends that the general three-year statute of limitations applies to
DuPont’s breach of contract claim and that such claim is time barred because DuPont
was aware of any breach no later than 2009. (ECF No. 412 at 7.) DuPont argues that
the six-year statute of limitations applicable to claims for liquidated damages applies,
which makes all of its claims timely. (ECF No. 430 at 19.)
Colorado Revised Statute § 13-80-101 provides, in relevant part:
(1) The following civil actions, regardless of the theory upon
which suit is brought, or against whom suit is brought, shall
be commenced within three years after the cause of action
accrues, and not thereafter:
(a) All contract actions, including personal contracts and
actions under the “Uniform Commercial Code”, except as
otherwise provided in section 13-80-103.5.
Id. (emphasis added). Section 13-80-103.5 states:
(1) The following actions shall be commenced within six
years after the cause of action accrues and not thereafter:
(a) All actions to recover a liquidated debt or an unliquidated,
determinable amount of money due to the person bringing
the action, all actions for the enforcement of rights set forth
in any instrument securing the payment of or evidencing any
debt, and all actions of replevin to recover the possession of
personal property encumbered under any instrument
securing any debt.
“An amount is liquidated or determinable for purposes of § 13-80-103.5(1)(a) if the
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amount due is ascertainable by reference to an agreement or by simple computation,
even if reference must be made to facts external to the agreement.” Neuromonitoring
Assoc. v. Centura Health Corp., __ P.3d __, 2012 WL 3518017, *3 (Colo. App. Aug. 16,
2012).
DuPont’s Counterclaim states that it is seeking “liquidated damages in the
amount of $300,000” based on ¶ 6 of the BIA. (ECF No. 174 at 8.) Paragraph 6 of the
BIA provides that, should certain enumerated events occur, “Jobber shall immediately
pay DuPont liquidated damages in the amount of Three Hundred Thousand Dollars
($300,000). . . . These liquidated damages are in addition to attorney’s fees, court
costs, interest and other costs reasonably related to the enforcement of payment of the
liquidated damages, should such enforcement be necessary.” (ECF No. 174-1 at 3.)
JTS agrees that the first clause of ¶ 6 of the BIA fixes the amount due should a breach
of contract occur. (ECF No. 443 at 9-10.) However, it argues instead that the
subsequent provision which allows DuPont to seek attorneys’ fees and costs causes
this claim to fall outside of § 13-80-103.5(1)(a). (Id.)
Notably, JTS cites no authority which holds that a provision allowing the recovery
of attorneys’ fees and costs—which are subsidiary damages typically awarded by the
Court after the jury decides liability—makes a contractual provision that plainly sets the
amount of liquidated damages uncertain enough to fall outside of § 13-80-103.5(1)(a).
Given the fact that the BIA plainly sets the amount of damages, and DuPont’s breach of
contract claim seeks the specified amount, the Court has little difficulty concluding that
DuPont’s claim falls under § 13-80-103.5(1)(a). See Neuromonitoring Assoc., 2012 WL
3518017 at *3.
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The Court therefore finds that the six-year statute of limitations applies to JTS’s
breach of contract claims, and such claims are timely.
b.

Performance

DuPont’s Counterclaim asserts that, under ¶ 7 of the BIA, JTS was required to
pay it $300,000 in liquidated damages when it sold its company in June 2011. (ECF
No. 174 at 8.) JTS moves for summary judgment on this claim, arguing that it fully
performed on the BIA prior to selling its business, such that there was no breach. (ECF
No. 412 at 11.)
The parties’ dispute centers on the minimum purchase requirements set forth in
¶ 5 of the BIA:
In further consideration of DuPont’s Investment, Jobber
agrees that each calendar year for the next five years it shall
purchase an annual minimum amount of liquid paint
products from DuPont in the amount of Three Million Four
hundred Fourteen Thousand Six Hundred Seventy-Seven
Dollars ($3,414,677), representing an annual increase of
One Hundred Ninety-Five Thousand Dollars ($195,000) over
its 2006 purchases of liquid paint products from DuPont.
The total amount Jobber shall purchase from DuPont by
December 31, 2011 shall be Seventeen Million SeventyThree Thousand Three Hundred Eighty-Five Dollars
($17,073,385).
(BIA ¶ 5.)
JTS contends that DuPont’s own records show that JTS had purchased more
than $17,073,385 as of December 31, 2010, six months before JTS sold its business in
June 2011. (ECF No. 412 at 13.) Thus, JTS contends that it fulfilled the quota of
product it was required to buy, such that the contract was satisfied and could not have
been breached. (Id.)
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JTS’s argument, however, ignores the BIA’s requirement that JTS purchase
$3,414,677 each year between January 1, 2007 and December 31, 2011. (BIA ¶ 5.)
JTS admits that it purchased only $1,777,878.90 in product between January 1, 2011
and the time it sold the business in June 2011. (ECF No. 412 at 13 n.6.) Were the
Court to hold that JTS’s total purchases between January 1, 2007 and December 31,
2010 completely satisfied its obligations under the contract, it would render
meaningless the minimum annual purchase provision. The Court is not permitted to
interpret a contract in this manner. See Mid Century Ins. Co. v. Gates Rubber Co., 43
P.3d 737, 739 (Colo. App. 2002) (“A contract is to be interpreted in its entirety to
harmonize and to give effect to all provisions, if possible.”). Because DuPont has
shown a dispute of fact as to whether JTS satisfied its annual purchase requirement
under the BIA, the Court finds that summary judgment is not appropriate.
Moreover, even if the Court were to agree that JTS could satisfy its obligations
under the BIA simply by purchasing $17,073,385 in product anytime after January 1,
2007, the Court finds that there is a dispute of fact as to whether JTS met that purchase
requirement. JTS contends that it did, based on DuPont’s sales figures under the
Empowerment Program. (ECF No. 412 at 13.) DuPont claims that JTS has misused
the sales figures, and that “indirect sales”1 do not count towards JTS’s purchase quota.
(ECF No. 430 at 22.) The BIA does not specifically address whether indirect sales

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Indirect sales are those in which DuPont negotiates the sale directly with the end-use
customer, the end-use customer places the order directly with DuPont, and the end-use
customer pays DuPont directly. DuPont then transfers the order to a servicing jobber—such as
JTS—who fills the order with product that it has on hand. The jobber then receives a credit
from DuPont to replenish their stock in the amount of the indirect sale.

8

count towards the quota, and the Court finds that this dispute of fact makes summary
judgment inappropriate.
c.

Phil Long’s Conduct

DuPont alleges that ¶ 6 of the BIA required JTS to pay $300,000 when Phil Long
converted to a competitor’s product in March 2011. (ECF No. 174 ¶ 48.) JTS moves
for summary judgment on this claim. (ECF No. 412 at 14-15.)
JTS first argues that Phil Long purchased all of the required product before it
changed suppliers. However, JTS’s argument here ignores the requirement that Phil
Long buy $288,000 of product “per year over a period of five (5) years.” (BIA ¶ 4(b)(iii)
(emphasis added).) Like with JTS’s annual purchase requirement discussed above, the
Court cannot ignore the fact that the BIA set a minimum purchase requirement for each
year. The Court therefore finds that Phil Long’s purchases before March 2011 did not
excuse the requirement that it make a minimum annual purchase for the 2011 calendar
year.
JTS also argues that DuPont cannot show that Phil Long converted to a
competitor’s paint line while the 2006 Shop Contract was in effect. Therefore, JTS
contends that any switch did not breach the BIA. (ECF No. 412 at 14.) Paragraph 3 of
the BIA provides:
Jobber entered into an agreement with Phil Long Collision
Center . . . on or about [March 7], 2006 requiring Shop to
solely use DuPont Performance Coatings products for its
liquid paint requirements and to purchase all such DuPont
Performance Coatings products from Jobber (the “Shop
Contract”). In order to secure the Shop Contract, Shop
required an incentive in the amount of Three Hundred
Thousand Dollars ($300,000). Therefore Jobber requested
and DuPont has agreed that DuPont will make an
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investment in the amount of Three Hundred Thousand
Dollars ($300,000) directly to Jobber (the “Investment”) to
reimburse Jobber for securing the Shop Contract.
(BIA ¶ 3.) JTS contends that, because ¶ 3 of the BIA specifically references the 2006
Shop Contract, which was superceded by the 2009 Shop Contract, the BIA no longer
governed Phil Long’s actions when it switched suppliers in 2011. (ECF No. 412 at 14.)
Notably, JTS fails to cite any provision in the BIA which limits its enforceability to
the duration of the 2006 Shop Contract. Rather, the BIA plainly sets minimum
purchase requirements for the next five calendar years, which suggests that the parties
understood their obligations under the agreement would extend for this duration. (BIA
¶¶ 4(b)(iii) & 5.) Moreover, nothing in ¶ 6 of the BIA, which DuPont alleges was
breached when Phil Long converted to a competitor’s product, references the 2006
Shop Contract. Thus, the Court cannot conclude that the remedies set forth in ¶ 6 of
the BIA were nullified when JTS renegotiated its shop contract with Phil Long in 2009.
Because DuPont has shown that Phil Long switched to a competitor’s product
before December 31, 2011, it has shown a genuine dispute of fact as to whether JTS
was obligated to pay it $300,000 pursuant to ¶ 6 of the BIA. As such, summary
judgment on this claim is not appropriate.
2.

2009 Empowerment Agreement

DuPont alleges that JTS was required to pay it $100,000 under the 2009
Empowerment Agreement as a result of Phil Long changing paint lines. (ECF No. 174
at 9.) The relevant provisions of the 2009 EA appear in § 4 of the contract, and are as
follows:
C.

Jobber must have a contract (hereinafter “Shop
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Contract”) with each end use customer (hereinafter
“Shop”) regarding the disposition of any
Empowerment Dollars as an incentive in return for a
commitment to exclusively use DPC liquid refinish
paint products. Each Shop Contract shall include the
following:
...
4.

5.

D.

a liquidated damages provision in the event of
breach by the Shop requiring the return of all
incentive monies or other benefits provided to
Shop; and
A clause permitting Jobber to assign its rights
and obligations in all Shop Contracts that are
obtained with Empowerment Dollars to DuPont
without the prior consent of the Shop.

Jobber shall provide copies of all such contracts to
DuPont. Should a Shop breach its agreement with
Jobber, any liquidated damages recovered will return
to Jobber’s fund of Empowerment Dollars so long as
Jobber is otherwise in compliance with this
Agreement and with the Champion Rules.

(ECF No. 414 at 3.)
It is undisputed that, after Phil Long changed paint lines, it paid JTS $390,000.
(ECF No. 174 ¶ 60; ECF No. 186 ¶ 60.) It is also undisputed that JTS has refused to
give any of this money to DuPont. (ECF No. 174 ¶ 61; ECF No. 186 ¶ 61.) However,
JTS argues that its refusal to pay any of the recovered money to DuPont is not a
breach of contract and moves for summary judgment on this claim. (ECF No. 412 at
17-21.) In support of this aspect of its Motion, JTS argues: (1) that it did not use any
monies provided under the 2009 EA to procure the 2009 Shop Contract, and (2) that
the 2009 EA does not mandate return of the monies it received from Phil Long.

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a.

Use of Empowerment Dollars to Procure Contract

JTS argues that § 4(C) applies only to shop contracts that were procured using
Empowerment Dollars as an incentive and that, because JTS did not use any
Empowerment Dollars to obtain the 2009 Shop Contract with Phil Long, the 2009 EA
was not breached when Phil Long changed to a competitor’s paint line. (ECF No. 412
at 18.) DuPont disputes JTS’s contention that the 2009 Shop Contract was not
procured using Empowerment Dollars as an incentive. (ECF No. 430 at 31.)
The Court finds that there is a genuine dispute of fact on this point. JTS has
provided evidence of two cancelled checks that were paid directly from JTS to Phil
Long, one in March 2009 and the other in June 2009. (ECF No. 412-19.) A reasonable
juror could rely on these checks to find that JTS paid Phil Long from its own funds.
However, DuPont has presented evidence showing that it made two $50,000 deposits
into JTS’s Empowerment Account—in April 2009 and August 2009—and the notations
associated with these deposits reference JTS’s contract with Phil Long. (ECF No. 4297.) In reliance on this evidence, a reasonable juror could find that DuPont put this
$100,000 into JTS’s Empowerment Account to reimburse JTS the money it paid to
secure the 2009 Shop Contract, such that § 4(C) of the 2009 EA was implicated.
b.

Repayment of Damages Received

JTS also argues that its refusal to repay $100,000 of the money it recovered
from Phil Long is not a breach because this money is not covered by § 4(D) of the 2009
EA. (ECF No. 412 at 17.)
Section 4(D) provides: “Should a Shop breach its agreement with Jobber, any
liquidated damages recovered will return to Jobber’s fund of Empowerment Dollars so
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long as Jobber is otherwise in compliance with this Agreement and with the Champion
Rules.” JTS contends that this provision requires liquidated damages to be returned to
an Empowerment Dollars account only if such damages are recovered by DuPont. JTS
contends that, because it obtained the damages from Phil Long directly, it had no
obligation to return any monies to its Empowerment Dollars account. (ECF No. 412 at
17.) On the other hand, DuPont contends that § 4(D) requires that any liquidated
damages recovered from a shop be returned to the Jobber’s Empowerment Dollars
account, regardless of whether the damages are recovered by DuPont or the Jobber.
(ECF No. 430 at 30.)
“The primary goal of contract interpretation is to determine and effectuate the
intent and reasonable expectations of the parties.” Copper Mountain, Inc. v. Indus.
Sys., Inc., 208 P.3d 692, 697 (Colo. 2009). “The intent of the parties to a contract is to
be determined primarily from the language of the instrument itself.“ Bledsoe Land Co.,
LLP v. Forest Oil Corp., 277 P.3d 838, 842 (Colo. App. 2011). “That language must be
examined and construed in harmony with the plain and generally accepted meaning of
the words used, and reference must be made to all the agreement’s provisions.“ Id.
The Court finds that both parties’ positions are reasonably supported by the plain
language of the contract. Section 4(D) does not explicitly state that only those
liquidated damages recovered by DuPont must be returned to an Empowerment
Account; rather, the contract is silent as to what entity is recovering the monies. Had
the parties intended the 2009 EA to function as JTS suggests, they could have easily
added to § 4(D) the phrase “by DuPont” after “liquidated damages recovered” so that
the contract read: “any liquidated damages recovered [by DuPont] will return to
13

Jobber’s fund of Empowerment Dollars”. The fact that this language does not appear in
the 2009 EA suggests that the parties did not intend the provision to be so limited.
Thus, the Court finds DuPont’s construction of § 4(D) is reasonable.
However, the fact that the liquidated damages need only be returned if the
Jobber’s account is compliant with the other provisions of the Champion Program
suggests that DuPont would be the party controlling return of the funds. Additionally,
JTS points out that only DuPont has the ability to deposit funds into a Jobber’s
Empowerment Dollars account. (ECF No. 443 at 17-18.) Given these facts, the Court
finds that JTS’s construction of § 4(D) is reasonable.
As both parties have put forth reasonable interpretations of the 2009 EA, the
Court concludes that this provision is ambiguous. Dorman v. Petrol Aspen, Inc., 914
P.2d 909, 918 (Colo. 1996) (“A contractual provision is ambiguous when it is fairly
suspectible of multiple interpretations.”). Therefore, whether § 4(D) obligates JTS to
return $100,000 to DuPont is a question that must be resolved by the jury. See Dorman
v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo. 1996) (once a contract is determined to
be ambiguous, its interpretation is generally a question of fact).
Accordingly, summary judgment is not appropriate on DuPont’s counterclaim for
breach of the 2009 EA.
B.

Unjust Enrichment
DuPont brings a claim for unjust enrichment in the alternative to its breach of

contract claims. (ECF No. 174 at 10.) In a footnote, JTS moves for summary judgment
on this claim. (ECF No. 412 at 19 n.9.) The entirety of JTS’s argument is as follows:

14

“DuPont’s claim for unjust enrichment fails because DuPont cannot establish that it
gave JTS funds for the 2009 Contract with Phil Long. Moreover, the 2009 Champion
Contract governs the disposition of Empowerment funds, thus even if JTS used
Empowerment funds for the 2009 Contract, DuPont’s claim is barred as a matter of
law.” (Id.)
Given the cursory manner in which this argument is made, the Court need not
even address this aspect of the Motion. The movant on a motion for summary
judgment bears the initial burden of showing the absence of a dispute of material fact.
See Celotex, 477 U.S. at 322-23. Only if this initial burden is met does the burden shift
to the non-movant to rebut this showing. See Anderson, 477 U.S. at 248; Celotex, 477
U.S. at 324. The Court finds that JTS’s argument in support of its Motion for Summary
Judgment with respect to DuPont’s unjust enrichment claim is insufficient to meet its
initial burden.
Moreover, even if the Court considers the merits of the unjust enrichment claim,
it finds that summary judgment is not appropriate. A party pursuing contract claims may
also pursue unjust enrichment claims in the alternative. See Lawry v. Palm, 192 P.3d
550, 564 (Colo. App. 2008) (“A plaintiff is entitled to recover based on the unjust
enrichment of a defendant when the plaintiff has no alternative right under an
enforceable contract.”). As set forth above, there are many open questions as to
whether the contracts at issue govern the parties’ conduct in this case. If any aspect of
JTS’s conduct is determined to not be covered by a contract, the jury should then be
permitted to consider DuPont’s unjust enrichment claim as to that conduct. As such,
the Court denies JTS’s Motion for Summary Judgment as to DuPont’s unjust
15

enrichment claim.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Counterclaim Defendant’s Motion for Summary Judgment on the Amended
Counterclaim (ECF No. 412) is DENIED; and

2.

Given the reduction in the claims at issue in this case, the 7 day jury trial set to
commence on December 8, 2014 is SHORTENED. Trial REMAINS SET to
begin at 8:00 a.m. on December 8, 2014, but will continue for only 5 days. The
Final Trial Preparation Conference REMAINS SET for 2:00 p.m. on Friday,
November 21, 2014.
Dated this 30th day of July, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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