Marvin Lumber and Cedar Company et al v. Sapa Extrusions, Inc.

Filing 224

ORDER Continuing the trial in this action to the Court's April 2013 trial calendar; setting briefing of the parties' yet-to-be-filed Daubert Motions and the parties will be ordered to participate in settlement proceedings following disposit ion of the Daubert motions; the Court will set the summary-judgment briefing schedule should settlement prove unsuccessful; CONTUING sine die the September 20, 2012 and October 8, 2012 Summary Judgment Motion hearings; RESERVING RULING on 110 Marvin's recently argued Motion for Partial Summary Judgment. (Written Opinion). Signed by Judge Richard H. Kyle on 07/20/12. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Marvin Lumber and Cedar Company, et al.,
Plaintiffs,
Civ. No. 10-3881 (RHK/LIB)
ORDER
v.
Sapa Extrusions, Inc.,
Defendant.

Sapa Extrusions, Inc.,
Third-Party Plaintiff,
v.
The Valspar Corporation,
Third-Party Defendant.

This matter is before the Court sua sponte.
The Court recently heard oral argument on Marvin’s Motion for Partial Summary
Judgment (Doc. No. 110), after which it discussed with counsel, on the record, the
deadlines in this case, the trial-ready date, and the bevy of upcoming Motions that have
been filed or will be soon. 1 The purpose of this Order is to lay out for the parties how the
Court intends to proceed (schedule-wise) moving forward.
1

Sapa (Doc. No. 112) and Valspar (Doc. No. 217) have already moved for summary judgment,
and the Court believes that Marvin, too, is likely to file such a motion in short order. Moreover,
counsel indicated at the hearing that “all parties intend to bring Daubert motions” in this case.
(7/13/12 Hear. Tr. at 68.)

For a number of reasons, it has become clear that a February 2013 trial date, as
currently set in this case, is unrealistic. The parties are still undertaking discovery,
including expert discovery, and the discovery period does not close until September 15,
2012. All discovery must be completed before the upcoming motions for summary
judgment and Daubert motions can be briefed, argued, and decided, as the full universe of
evidence bearing on the issues must be known in advance. Indeed, the recent hearing on
Marvin’s Motion for Partial Summary Judgment drove that point home. One of Sapa’s
key arguments in opposition to the Motion was that Marvin had “fail[ed] to present any
[evidence showing that] Sapa made an express warranty in conflict with the disclaimers in
Sapa’s terms and conditions.” (Doc. No. 189 at 21.) But at the hearing, Marvin
countered that assertion with testimony from a witness obtained well after the Motion had
been fully briefed. (See 7/13/12 Hear. Tr. at 9.) Simply put, ruling on summary
judgment before discovery is complete is premature, and neither the parties nor the Court
should be forced to aim at a moving target when addressing the issues in this case.
Furthermore, the Court believes that the soon-to-be-filed Daubert motions must be
resolved before summary judgment. The Court finds it extremely unlikely that the parties
will eschew reliance on their experts’ opinions in connection with their summary-judgment
motions, 2 and hence they will need to know which expert opinions are admissible – or not
admissible – when briefing those motions. Only once the evidentiary “lay of the land” has
been set will the Court and the parties be in position to opine whether “there is no genuine
2

Notably, Marvin cited expert testimony in connection with its recently heard Motion. (See Doc.
No. 152 at 5.) And at the hearing, Sapa’s counsel indicated that at least some of the issues in its
summary-judgment motion will be “tie[d] to” its expert’s testimony. (7/13/12 Hear. Tr. at 73.)
-2-

dispute as to any material fact and . . . judgment as a matter of law” is appropriate. Fed. R.
Civ. P. 56(a).
But given Local Rule 7.1(b)’s timelines for briefing dispositive motions
(including Daubert motions), the September 15, 2012 discovery cutoff, the Court’s
expectation that it will commence a 4-6 week criminal trial on October 3, 3 and the
end-of-the-year holidays, it is extremely unlikely that the upcoming motions can be
briefed, argued, and decided before the beginning of 2013. Nor does this account for the
time necessary to complete court-ordered settlement discussions, which will likely occur
post-Daubert but before the parties have gone to the time and expense of briefing summary
judgment. 4 And even if all of these tasks were able to be completed before New Year’s
Day, little time would remain before the start of trial for the submission of pre-trial
materials (such as motions in limine) and the hearings they will necessarily engender.
For all of these reasons, and based on all the files, records, and proceedings herein,
the Court concludes that the February 2013 trial date must be continued. Due to
scheduling conflicts, however, the next-soonest month in which the Court can set aside a
sufficient block of trial time for this case is April 2013. Accordingly, IT IS ORDERED
that the trial in this action is CONTINUED to the Court’s April 2013 trial calendar; an
3

At the July 13 hearing on Marvin’s Motion, the Court advised the parties that it would inquire of
counsel in the criminal case whether they anticipated the trial would proceed on October 3. It
appears that the trial will, indeed, commence on that date.
4

At a minimum, the parties will have a settlement conference with Magistrate Judge Brisbois.
Given the Court’s review of the record, however, it appears that the parties may require some
prodding to “grease the wheels” toward settlement. Accordingly, the Court is contemplating
ordering a summary jury trial before the Magistrate Judge at some point prior to hearing their
summary-judgment motions.
-3-

exact trial-commencement date will be set by later Order of the Court. IT IS FURTHER
ORDERED that:
1.

The following briefing schedule shall apply to the parties’ yet-to-be-filed

Daubert Motions: (i) opening briefs, along with all supporting documents, shall be served
and filed on or before September 28, 2012; (ii) responsive briefs, along with all supporting
documents, shall be served and filed on or before October 19, 2012; and (iii) reply briefs (if
any), along with all supporting documents, shall be served and filed on or before October
26, 2012. The Court will later notify the parties of the date on which it intends to hear
their Daubert Motions;
2.

The parties will be ordered to participate in settlement proceedings before

the Magistrate Judge following disposition of the Daubert Motions;
3.

The Court will set a briefing schedule on the parties’ summary-judgment

Motions should the aforementioned settlement proceedings prove unsuccessful. The
hearings on Sapa’s Motion for Summary Judgment (currently scheduled for September 20,
2012) and Valspar’s Motion for Summary Judgment (currently scheduled for October 8,
2012) are CONTINUED sine die and will be re-set, if necessary, by further Order of the
Court; and
4.

The Court RESERVES ruling on Marvin’s recently argued Motion for

Partial Summary Judgment (Doc. No. 110) until it takes up the parties’ other
summary-judgment motions. 5

5

The Court also RESERVES ruling on whether it will consider the new evidence submitted by
Marvin at the July 13 hearing on its Motion. If the Court intends to consider that evidence, Sapa
-4-

The Court wishes to stress that the parties should not interpret this Order as giving
them license to “take their foot off the gas pedal,” so to speak. This case has been pending
for nearly two years and the Pretrial Scheduling Order has already been amended twice.
The Court fully expects the parties to complete discovery by September 15, 2012, as all
other deadlines hinge on that taking place. Lest there be any doubt, this means that there
will be NO FURTHER EXTENSIONS of the discovery cutoff.

Dated: July 20, 2012

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

will be given an opportunity to address it.
-5-