Menard, Inc. v. Dial-Columbus, LLC et al

Filing 92

ORDER - The Clerk of the Court is directed to reopen Menard's motion for summary judgment (filing 53 ). The parties will be directed to brief and submit the motion for summary judgment as set forth in this order. On or before May 6, 2015, the parties shall contact the Magistrate Judge's chambers to set a status conference, after which the Magistrate Judge shall set a schedule for disposition of the motion for summary judgment. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MENARD, INC.,
Plaintiff,
vs.

4:12-CV-3077
ORDER

DIAL-COLUMBUS, LLC, et al.,
Defendants.
This matter is before the Court on its own motion upon receipt of the
mandate of the United States Court of Appeals for the Eighth Circuit (filing
91) from defendant Terry L. Clauff's appeal in this matter. As the Court
understands the Eighth Circuit's opinion, the Court has been directed to
further consider "whether the Nebraska common law and/or [Neb. Rev. Stat.]
§ 21-2635 preclude Clauff's argument that his liability under the Lease
Assignment may be relieved or avoided because DKC-Columbus came into
existence, adopted the contract, and commenced performance on it." Menard,
Inc. v. Dial-Columbus, LLC, No. 14-1741, slip op. at 11 (8th Cir. Mar. 26,
2015) (footnote omitted) (filing 88).
Pursuant to the Eighth Circuit's mandate, the Court will reopen
Menard's motion for summary judgment (filing 53). All evidence and briefing
previously filed with respect to that motion will be considered as having been
re-submitted. As the moving party, Menard will be directed to file a
supplemental brief in support of its motion for summary judgment, along
with any further evidence it should wish to provide. Clauff may then file a
supplemental response brief and any additional evidence. Menard may then
reply to Clauff's brief and evidence.
The Eighth Circuit also noted what it believed to be "the potential for
factual deficiencies in the summary judgment record[.]" Id. at 2-3, 11.
Accordingly, rather than set a briefing schedule, the Court will direct the
parties to confer and consider whether additional discovery is required. Then,
the parties should set a status conference with the Magistrate Judge to
discuss case progression, including a discovery schedule (if any) and a
briefing schedule on the motion for summary judgment.

IT IS ORDERED:
1.

The Clerk of the Court is directed to reopen Menard's
motion for summary judgment (filing 53).

2.

The parties will be directed to brief and submit the motion
for summary judgment as set forth in this order.

3.

On or before May 6, 2015, the parties shall contact the
Magistrate Judge's chambers to set a status conference,
after which the Magistrate Judge shall set a schedule for
disposition of the motion for summary judgment.

Dated this 24th day of April, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

-2-