Koch Foods, Inc. v. Pate Dawson Company, Inc. et al

Filing 118

ORDER setting agenda for April 27, 2018 jury instruction conference.Signed by Honorable David C. Bramlette, III on April 12, 2018 (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KOCH FOODS, INC.

PLAINTIFF

V.

CAUSE NO. 3:16-CV-355-DCB-MTP

PATE DAWSON CO., et al.

DEFENDANTS
ORDER

This case will require a jury to apply North Carolina law to
determine the liability of the former officers and directors of
the Pate Dawson Company for $3.6 million in chicken orders placed
with Koch Foods but not paid for.1
Trial is set for April 30, 2018. Because the case raises
delicate issues of North Carolina law, the Court held a jury
instruction

conference

at

the

Thad

Cochran

United

States

Courthouse in Jackson on February 5, 2018. During the conference,
the Court gave the parties a set of preliminary jury instructions
and

asked

that

they

submit

proposed

revisions,

as

well

as

supporting authority, within thirty days. The parties complied.
The proposed revisions reflect lingering disputes on five
major issues. To resolve them before trial, the Court set a second

Only one claim, civil conspiracy, is governed by Mississippi
law. See Doc. 98, pp. 7-8.
1

jury instruction conference for April 27, 2018. At the conference,
counsel shall address these issues in this order:
I
The conduct that constitutes a breach of fiduciary duty under
Keener Lumber Co. v. Perry, 560 S.E.2d 817 (N.C. Ct. App. 2002).
II
The interplay between Koch Foods’ breach of fiduciary duty
and

constructive

fraud

claims

and

the

need

for

separate

instructions.
III
The conduct that qualifies as “unfair” or “deceptive” under
North Carolina’s Unfair and Deceptive Trade Practices Act, North
Carolina General Statutes Section 75-1.1.
IV
The application of North Carolina’s business judgment rule,
North Carolina General Statutes Section 55-8-30, to an action
brought by a corporation’s creditor against the corporation’s
former officers and directors.
V
Whether Koch Foods is entitled to an instruction on civil
conspiracy.
2

VI
Whether North Carolina law precludes apportionment of fault
among the Defendants.2 See N.C. GEN. STAT. § 1B-2(1); Hairston v.
Alexander Tank and Equip. Co., 311 S.E.2d 559, 565-66 (N.C. 1984).
Accordingly,
IT IS ORDERED that the jury instruction conference set for
Friday, April 27, 2018 at 10:00 A.M. shall proceed as stated above.
SO ORDERED this the 12th day of April, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

2

No party has heretofore identified the fault-apportionment

issue.
3