American Home Assurance Company et al v. Greater Omaha Packing Company Inc.
MEMORANDUM AND ORDER that plaintiff Cargill's 168 Motion show cause is denied as moot. No later than February 11, 2014, GOPAC shall answer Cargill's Interrogatory No. 22 and supplement all other disputed interrogatories as appropriate. The request for status conference (Filing No. 168) is denied as moot. Defendant's 184 Motion for Leave to file supplemental brief in opposition to Cargill's motion for order to show cause is denied as moot. Ordered by Senior Judge Lyle E. Strom. (ADB)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
GREATER OMAHA PACKING COMPANY,)
MEMORANDUM AND ORDER
This matter is before the Court on the motion of
Cargill for an order to show cause why GOPAC has failed to answer
interrogatories as ordered by the Court (Filing No. 168).
The Court agrees with GOPAC that “what Cargill’s Motion
is really requesting is a supplemental answer from Greater Omaha
that states that Greater Omaha either does or does not know the
names of the customers that it lost due to Cargill’s tortious
GOPAC’s Brief in Opposition, Filing No. 179 at 2.
This understanding tracks the order compelling supplemental
“GOPAC must file a response or state that it does not
have knowledge sufficient to answer these interrogatories.”
Home Assur. Co. v. Greater Omaha Packing Co., Inc., 8:11CV270,
2013 WL 4875997 (D. Neb. Sept. 11, 2013).
Despite this apparent understanding of what is being
requested, GOPAC contends that it is not required to give such an
answer because “it is proving its Counterclaim through a forensic
economic analysis known as an ‘event study,’ which does not rely
on identifying the names of specific customers.”
in Opposition, Filing No. 179 at 2.
law or logic for this assertion.
The Court finds no basis in
As an alternative basis for
denial, GOPAC contends that it “has also told Cargill . . . that
it does not know the names of the customers who stopped doing
business with Greater Omaha.”
The Court was unable to find
such a statement in GOPAC’s answer’s to the interrogatories.1
In a third alternative argument, GOPAC argues that
business records provided pursuant to Federal Rule of Civil
Procedure 33(d) satisfy Cargill’s request for the identity of
customers lost due to the alleged tortious interference.
The business records GOPAC provided consist of sales
records for all GOPAC customers from January 1, 2007 through
The statement bearing the closest resemblance is in
GOPAC’s First Supplemental Answer to Interrogatory 36 which
states that the identity of the customers that stopped doing
business because of the alleged contamination were “[u]nknown at
this time.” This phrase anticipates identifying the customers at
some future time, which would require further supplementation to
GOPAC’s answer. It does not inform the counterclaim-defendant of
the actual identities or make a conclusive declaration that GOPAC
is without the knowledge to provide the requested information.
December 31, 2011.
GOPAC contends that the customers lost due to
the alleged tortious interference “may be determined by examining
The Court disagrees.
While the sales records
may indicate the identity of customers who ceased or slowed
business over the course of the five years starting in 2007, they
do not provide any indication as to the customer’s motivation -a key component of the requested information.
In a fourth alternative argument, GOPAC argues that
recent deposition testimony touching on the same issues obviates
the need for further supplemental answers.
Brief in Opposition, Filing No. 184 at 2.
for the same reasons.
This argument fails
GOPAC asserts that the deposition included
questions about the business lost due to tortious interference.
However, the answers which GOPAC contends are sufficient suffer
the same defect as GOPAC’s supplemental answers to the
they do not identify the customers which GOPAC
alleges were affected by Cargill’s tortious interference.
Though the present motion is for an order to show
cause, the Court finds that the extensive argument in the briefs
renders a show cause order moot.
Rather the Court will order
GOPAC to answer the interrogatories.
IT IS ORDERED:
Plaintiff Cargill’s motion for order to show cause
is denied as moot (Filing No. 168).
2) No later than February 11, 2014, GOPAC shall answer
Cargill’s Interrogatory No. 22 and supplement all other disputed
interrogatories as appropriate.
The request for status conference (Filing No. 168)
is denied as moot.
Defendant’s motion for leave to file supplemental
brief in opposition to Cargill’s motion for order to show cause
(Filing No. 184) is denied as moot.
DATED this 31st day of January, 2014.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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