Agri-Labs Holdings LLC v. TapLogic LLC

Filing 137

OPINION AND ORDER: The Court DENIES Agri-Labs' 133 Motion to Strike TapLogics Motion for Summary Judgment, Request Under Federal Rules of Civil Procedure 56(d) and Request for Court Ordered Mediation and DENIES Agri-Labs Motion to Strike Tap Logics Motion for Summary Judgment, Request Under Federal Rules of Civil Procedure 56(d) 135 . The Plaintiff must respond to the Defendants Motions for Summary Judgment within twenty-eight days of the date of this Order. In the interest of a clear and complete record, the Defendant may supplement its Motions for Summary Judgment by appending the Statement of Material Facts. Signed by Chief Judge Theresa L Springmann on 9/18/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
AGRI-LABS HOLDING LLC,
Plaintiff,
v.
TAPLOGIC LLC,
Defendant.

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CAUSE NO.: 1:15-CV-26-TLS

OPINION AND ORDER
This matter is before the Court on Agri-Labs’ Motion To Strike TapLogic’s Motion For
Summary Judgment, Request Under Federal Rule of Civil Procedure 56(d) and Request For
Court Ordered Mediation [ECF No. 133], filed on July 18, 2017, and Agri-Labs’
Motion To Strike TapLogic’s Motion For Summary Judgment, Request Under Federal Rules Of
Civil Procedure 56(d) [ECF No. 135], filed on August 4, 2017. The Plaintiff moves to strike the
entirety of the Defendant’s two Summary Judgment Motions [ECF Nos. 129, 131] on the
grounds that the Defendant did not comply with Local Rule 56-1(a) because it failed to include a
Statement of Material Facts either in the memorandum or attached as an appendix. The Plaintiff
also argues that the facts the Defendant did include in its first Motion [ECF No. 129] do not
appear to have any relation to the subject matter of the Motion. Thus, the Plaintiff argues, both of
the Defendant’s Motions for Summary Judgment should be stricken.
The Plaintiff further argues that it requires additional time to conduct discovery prior to
responding to the Defendant’s Motions for Summary Judgment pursuant to Federal Rule of Civil
Procedure 56(d) 1 and asks the Court to extend the period for responding to the Defendant’s

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Although, pursuant to Local Rule 7-1(a), the Plaintiff should have filed a separate 56(d) motion, in the
interest of judicial economy, the Court will consider the Plaintiff’s request.

Motions. Alternatively, the Plaintiff asks the Court to deny the Defendant’s Motions for
Summary Judgment. Finally, the Plaintiff asks the Court to order the parties to engage in nonbinding mediation.
For the reasons set forth below, the Court denies Agri-Labs’ Motions to Strike
TapLogic’s Motions For Summary Judgment, denies the Plaintiff’s Requests Under Federal
Rules Of Civil Procedure 56(d), and denies the Plaintiff’s Request For Court Ordered Mediation.

PROCEDURAL HISTORY
On January 22, 2015, Agri-Labs Holdings LLC filed a Complaint against TapLogic LLC,
alleging that TapLogic’s “Ag PhD Soil Test” product infringed Agri-Labs’ U.S. Patent
No. 8,286,857. TapLogic counterclaimed for invalidity and asserted various affirmative
defenses, including noninfringement and lack of personal jurisdiction by the Court.
On June 21, 2017, the Defendant filed a Motion for Summary Judgment [ECF No. 129]
on its invalidity counterclaim and lack of jurisdiction defense. On July 6, 2017, the Defendant
filed a Second Motion for Summary Judgment on its noninfringement defense [ECF No. 131].
The Plaintiff moved to strike the Defendant’s Motion for Summary Judgment on invalidity and
lack of jurisdiction on July 18, 2017, arguing that the Defendant failed to include a statement of
material facts in accordance with Local Rule 56-1(a). The Plaintiff also argues that none of the
facts included in the Defendant’s Motion were in any way related to the patent invalidity issue—
one of the subjects of the Motion. The Defendant responded to the Plaintiff’s first Motion to
Strike on July 31, 2017 [ECF No. 134]. Although the Defendant disputed the Plaintiff’s
characterization of the fact section of its Motion, the Defendant appended a Statement of

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Material Facts [ECF No. 134-3] to its Response to the Plaintiff’s Motion to Strike. The Plaintiff
has not filed a reply.
The Plaintiff also moved to strike the Defendant’s Motion for Summary Judgment for
noninfringment on August 4, 2017, again arguing that the Defendant failed to include a
Statement of Material Facts pursuant to Local Rule 56-1(a). The Defendant responded to the
Plaintiff’s Motion on August 28, 2017 [ECF No. 136], incorporating by reference its arguments
in its July 31, 2017 Response.
In both of its Motions to Strike, the Plaintiff also requested additional time to conduct
discovery pursuant to Fed. R. Civ. P. 56(d) in order to adequately respond to the Defendant’s
Motions for Summary Judgment. The Plaintiff argues that it has not yet had the opportunity to
depose Hoyt Choate—a key witness according to the Plaintiff—due to previous discovery
disputes. In its Response to the Plaintiff’s First Motion to Strike, the Defendant argues that
further discovery under 56(d) is unwarranted because the Plaintiff “has had over 2 1/2 years to
depose Hoyt Choate,” that the Plaintiff “will gain nothing from deposing Mr. Choate,” that the
“alleged discovery dispute was resolved on or before March 22, 2017,” and that the Plaintiff was
“not serious about wanting [Mr. Choate’s] deposition” because it had not yet noticed a date to
take Mr. Choate’s deposition. (Def. Resp. to Pl.’s First Mot. to Strike 2, ECF No. 134.) As of the
filing of the Plaintiff’s Second Motion to Strike, Mr. Choate’s deposition had been scheduled for
August 17, 2017. In the Defendant’s Response to the Plaintiff’s Second Motion to Strike, the
Defendant informed the Court that the “Plaintiff chose not to take Hoyt Choate’s deposition on
August 17th and has not rescheduled.” (Def. Resp. to Pl.’s Sec. Motion to Strike 1, ECF No.
136.)

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Finally, in its First Motion to Strike, the Plaintiff asks this Court to order the parties to
engage in non-binding mediation. The Defendant did not respond to this request.

ANALYSIS

A.

Plaintiff’s Motion to Strike For Failure To Comply With The Local Rules
Local Rule 56-1(a) for the Northern District of Indiana provides that “[t]he brief

supporting a summary-judgment motion or the brief’s appendix must include a section labeled
‘Statement of Material Facts’ that identifies the facts that the moving party contends are not
genuinely disputed.” It is within the Court’s discretion “whether to apply a local rule strictly or
to overlook any transgression.” Peele v. Burch, 722 F.3d 956, 961 (7th Cir. 2013); see also
Stanciel v. Gramley, 267 F.3d 575, 579 (7th Cir. 2001); Little v. Cox’s Supermarkets, 71 F.3d
637, 640 (7th Cir. 1995). The Defendant has now filed with the Court a Statement of Material
Facts, albeit, unattached to either of its Summary Judgment Motions. “While [the Plaintiff]
arguably has a point about the manner in which [the Defendant] filed [its] Statement of Facts,
and whether it strictly complies with the Local Rule 56-1(a), this amounts to ‘much ado about
nothing . . . .’” Canen v. Chapman, No. 3:14-CV-315, 2016 WL 695970, at *2 (N.D. Ind. Feb.
22, 2016) (quoting Nabors v. Wells Fargo, No. 1:11-CV-273, 2013 WL 3013353, at *15 (N.D.
Ind. June 17, 2013)). The Defendant has now filed a Statement of Material Facts, and the
Plaintiff will not be prejudiced by the late filing considering it was filed well over a month ago,
which exceeds the time in which the Plaintiff should have responded to the Defendant’s Motions
under the Local Rules in the first place. The Court therefore denies the Plaintiff’s Motions to
Strike. In the interest of a clear and complete record, the Court will permit the Defendant to
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supplement its Motions for Summary Judgment by appending the Statement of Material Facts
[ECF No. 134-3].
The Court declines to consider the relevancy or adequacy of the facts as stated in the
Defendant’s Motions. The parties are aware of their respective summary judgment burdens and
may brief any deficiencies in their responses and replies.

B.

Plaintiff’s Request Under Rule 56(d)
The Plaintiff argues that it is unable to adequately respond to the Defendant’s Summary

Judgment Motions without first taking Mr. Choate’s deposition.
Federal Rule of Civil Procedure 56(d) provides that “[i]f a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present facts essential to justify its opposition,
the Court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.” In order to succeed
on a Rule 56(d) motion, the plaintiff must identify the specific evidence that would create a
genuine issue of fact. Am. Needle, Inc. v. Nat’l Football League, 538 F.3d 736, 740 (7th Cir.
2008) (overturned on other grounds). “Summary judgment should not be entered ‘until the party
opposing the motion has had a fair opportunity to conduct such discovery as may be necessary to
meet the factual basis for the motion.’” Chalimoniuk v. Interstate Brands Corp., 172 F. Supp. 2d
1055, 1057–58 (S.D. Ind. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)).
“Rule 56(d) is not meant to allow a party to block summary judgment by simply offering
generalities about the need for further discovery.” Staten v. Nissan N.A., Inc., 134 F. App’x 963,
965 (7th Cir. 2005).
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Further, “Rule [56(d)] does not operate to protect parties who are dilatory in the pursuit
of discovery.” Allan Block Corp. v. Cty Materials Corp., 588 F. Supp. 2d 976, 980 (W.D. Wis.
2008) (citing Doty v. Ill. Cent. R. Co., 162 F.3d 460, 461–62 (7th Cir. 1998)). A court may deny
a Rule 56(d) motion when a party fails to diligently pursue discovery. See, e.g., Hu v. Park Nat’l
Bank, 333 F. App’x. 87, 89–90 (7th Cir. 2009) (affirming denial of Rule 56(d) motion because
the plaintiff “did nothing during discovery” and waited until two months after the defendant had
filed its motion to ask for additional time for discovery).
Likewise, if a party fails to specifically identify the evidence it hopes to obtain with the
additional discovery and how that evidence would create a genuine issue of material fact, a court
may deny a Rule 56(d) motion. See, e.g., Davis v. G.N. Mortg. Co., 396 F.3d 869, 885 (7th Cir.
2005) (affirming denial of plaintiffs’ request for additional discovery); U.S. v. All Assets &
Equip. of W. Side Bldg. Corp., 58 F.3d 1181, 1190–91 (7th Cir. 1995) (affirming denial of
defendants’ request for additional discovery because the request “lacked specificity concerning
what information [the defendants] hoped to uncover and how it would refute [the claims brought
against them]”).
In support of its contention, the Plaintiff attaches an affidavit signed by Counsel for
Plaintiff, Dean McConnell. Mr. McConnell’s justification for the Plaintiff’s request reads in its
entirety:
Agri-Labs needs the opportunity to take additional discovery in this matter and, in
particular, needs to take the deposition of Mr. Choate to obtain facts essential to
justify Agri-Labs’ opposition to the motion for summary judgment. [] In particular,
Agri-Labs needs the opportunity to obtain essential evidence related to TapLogic’s
“partnership” with the entities involved with the AgPhd Soil Test app, TapLogic’s
development of the AgPhd Soil Test app, the alleged transfer of ownership of the
AgPhd Soil Test app, TapLogic’s day-to-day involvement with the system, and so
forth.
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The Plaintiff’s affidavit fails to demonstrate with any specificity what information it
hopes to uncover by taking Mr. Choate’s deposition or how that evidence would create a genuine
issue of material fact. The Plaintiff states only that the deposition would yield “essential
evidence” regarding several broad issues. The Court also does not find that the Plaintiff has
diligently pursued Mr. Choate’s deposition. The Plaintiff has had two and a half years to depose
Mr. Choate but did not notice him for deposition until after filing its First Motion to Strike.
Moreover, the scheduled date for the deposition has come and gone with no apparent effort to
reschedule. This does little to persuade the Court that Mr. Choate’s deposition is likely to yield
material evidence without which the Plaintiff cannot adequately argue its case. Thus, the Plaintiff
has failed to persuade the Court that extra time is necessary in order to respond to the
Defendant’s Summary Judgment Motions. Therefore, the Court denies the Plaintiff’s request for
additional time to conduct discovery. The Plaintiff will have twenty-eight days from the date of
this order in which to respond to the Defendant’s Summary Judgment Motions.

C.

Plaintiff’s Request for Court-Ordered Mediation
The Plaintiff argues that the Court should order the parties to engage in non-binding

litigation because “TapLogic has repeatedly rebuked any and all efforts made by Agri-Labs to
amicably resolve this matter.” (Pl. First Mot. To Strike 2.) However, “many courts . . . are very
reluctant to order a party to participate in mediation when the party does not wish to do so.”
Andersen v. Vavreck, No. 15–CV–667–PP, 2016 WL 7839152 (E.D. Wis. Mar. 10, 2016). See
also Radian Asset Assur., Inc. v. Coll. Of Christian Bros. of N.M., No. CIV 09–0885, 2010 WL
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5150718, at *4 (D.N.M. Nov. 3, 2010) (finding “[t]here is no purpose to be served ordering
mediation . . . before [the party] is ready”). By the Plaintiff’s own argument, it does not appear
that the Defendant is currently amenable to settlement, and the Court sees no reason to force the
parties to engage in what is likely to be an exercise in futility. Thus, the Court denies the
Plaintiff’s request for the Court to order the parties to engage in non-binding mediation.

CONCLUSION
For the reasons set forth above, the Court DENIES Agri-Labs’ Motion to Strike
TapLogic’s Motion for Summary Judgment, Request Under Federal Rules of Civil Procedure
56(d) and Request for Court Ordered Mediation [ECF No. 133] and DENIES Agri-Labs’ Motion
to Strike TapLogic’s Motion for Summary Judgment, Request Under Federal Rules of Civil
Procedure 56(d) [ECF No. 135]. The Plaintiff must respond to the Defendant’s Motions for
Summary Judgment within twenty-eight days of the date of this Order. In the interest of a clear
and complete record, the Defendant may supplement its Motions for Summary Judgment by
appending the Statement of Material Facts [ECF No. 134-3].

SO ORDERED on September 18, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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