Electrolux Home Prod v. Whitesell Corp

Filing 496

ORDER terminating 391 Motion for Summary Judgment; terminating 399 Motion for Partial Summary Judgment; granting 447 Motion for Leave to File; granting 457 Motion for Leave to File. Signed by Judge Dudley H. Bowen on 3/29/13. (bcw)

U.S.DIST"
IN THE UNITED STATES DISTRICT COURT ')
FOR THE
)PTp
SOUTHERN DISTRICT OF GEORGIA L J1j1(
DISTRICT
AUGUSTA DIVISION

ER "

WHITESELL CORPORATION,
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Plaintiff,

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V.

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ELECTROLUX HOME PRODUCTS,
INC., HUSQVARNA, A.B., and
HUSQVARNA OUTDOOR PRODUCTS,
INC.,
Defendants.

CV 103-050

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ORDER

Presently pending before the Court are two motions for
summary judgment filed by Defendants Electrolux Home Products,
Inc. (EHP") and Husqvarna Outdoor Products, Inc.
(Husqvarna") . The first of these motions was filed by
Husqvarna on March 16, 2011, and targets Plaintiff Whitesell
Corporation's ("Whitesell") claim that Husqvarna is
contractually obligated to purchase millions of dollars worth
of excess fastner inventory Whitesell had on hand at the
conclusion of the supply term for the subject parts. The
second motion, filed by both Defendants on April 12, 2011,
seeks to have this Court declare that Whitesell is obligated
to pay Defendants a two percent (2%) annual rebate on
Defendants' total calendar year purchases from Whitesell,
beginning with year 2003. Defendants contend that the

unambiguous language of Paragraph 7 of the Settlement
Memorandum compels this result.
Discovery in this case has been stayed since June 12,
2008. Whitesell has represented on several occasions that no
meaningful discovery has taken place since 2006. In response
to both motions for summary judgment, Whitesell filed
affidavits under Federal Rule of Civil Procedure 56(d),
contending that it could not adequately respond to the motions
for summary judgment without further necessary discovery.
On November 5, 2012, Whitesell filed a petition for writ
of mandamus in the Eleventh Circuit Court of Appeals seeking,
inter alia, to compel this Court to re-open discovery. The
circuit court deferred consideration of the petition for writ
of mandamus, impliedly encouraging this Court to consider four
motions specified in its Order of December 26, 2012.
Thereafter, this Court ruled on the enumerated motions and,
following protracted communications with counsel, approved and
adopted the Proposed Joint Discovery Plan submitted by the
parties on February 1, 2013. (See Order of Feb. 5, 2013.)
Thus, an extensive discovery process is presently ongoing.
The Court has extensively reviewed the motions for
summary judgment, the various briefs related thereto, and the

submitted evidence

While the Court is not necessarily

disposed to an outcome of either motion, it occurs that with
the commencement of a new discovery period and in light of the
Whiteseil's Rule 56(d) affidavits, the summary judgment
motions may well be premature.
In particular, and with respect to the motion for summary
judgment concerning excess fastner inventory, I note that the
period of time relevant to the excess fastner inventory
dispute concerns the Phase-Out Period - April 2008 to November
2008. Discovery, however, has been stayed since June 2008.
And, while the parties' lengthy declarations of the principal
players in the dispute are exceedingly thorough, neither party
has had the opportunity to cross-examine these witnesses.
Moreover, the declarations demonstrate various points of
contention as to why each party conducted itself in the manner
it did during that time period. I will not comment on whether
those points of contentions are material,- suffice it to say,
the disputed facts ounce ruinq the parties' course of conduct
are numerous.

To this end, the Court read and considered the surreply briefs related to the motion for summary judgment
concerning the excess fastner inventory. The briefs were
attached to motions to file sur-replies by both parties.
Accordingly, Whiteseli's motion to file a sur-reply (doc. no.
447) and Husqvarna's motion to file a sur-reply (doc. no. 457)
are GRANTED. There is no need for the Clerk to redocket the
sur-reply briefs. Their appearance in the record as exhibits
to the parties' motions for leave to file the briefs is
sufficient.
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With respect to the motion for summary judgment on the
annual rebate claims, Whitesells response has brought into
focus the intent behind Paragraph 7 of the Settlement
Memorandum and the fact-intensive claims of failure of
consideration and estoppel. In particular, Whitesell has made
an issue of the transition dates for Brunner and Matrix parts,
which is a matter to be specifically addressed through the
Joint Discovery Plan. Moreover, the principal players in this
dispute have never been deposed, and these depositions are
also contemplated by the Joint Discovery Plan.
In short, the case is now positioned to allow the
discovery that Whitesell claims it requires to fully respond
to the motions for summary judgment, and Defendants will also
have the opportunity to more fully develop their side, so to
speak. Accordingly, upon my initial review of the pending
motions, I have concluded that the most prudent and efficient
course of action is to TERMINATE without prejudice both
motions for summary judgment. This decision does not resolve
the motions in any way; however, the onus is now upon
Defendants to show how they would be prejudiced by suspending
the motions with leave to urge or re-file these motions at a
later time.
The Clerk shall TERMINATE the motion for summary judgment
on the claims concerning the excess fastner inventory (doc.
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no. 391) and the motion for summary judgment on the annual
rebate claims (doc. no, 399). Any party may file an
opposition to this temporary disposition of the motions within
ten (10) days of the entry of this Order. Moreover,
Defendants have leave to urge the motions at a later time as
may be warranted through the discovery process. Any request
or suggestion to activate a terminated motion shall be by a
simple and appropriate motion with no brief of argument
required.
ORDER ENTERED

at Augusta, Georgia, this 29 day of March,

2013.

UNITED STATE$ I

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