UBA, LLC v. ThyssenKrupp Elevator Corporation

Filing 49

ORDER denying as moot Oral Motion for Clarification - NOTICE is hereby given that the court is considering entering sua sponte partial summary judgment in favor of defendant with respect to plaintiff's cla im for specific performance and its claim pursuant to the UDTPA. The court refers the parties to its prior order for identification of material facts not genuinely disputed and the court's discussion of applicable law. Counsel should review the attached order in its entirety for deadlines and further information. Signed by District Judge Louise Wood Flanagan on 3/3/2017. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-477-FL

UBA, LLC,
Plaintiff,
v.
THYSSENKRUPP ELEVATOR
CORPORATION,
Defendant.

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ORDER

This matter is before the court following telephonic conference held March 2, 2017, pursuant
to Rule 16 of the Federal Rules of Civil Procedure. Plaintiff appeared through counsel Jose A.
Coker, Quintin D. Byrd, and R. Jonathan Charleston. Defendant appeared through counsel Nora F.
Sullivan and Jonathan A. Berkelhammer. This order memorializes matters discussed at conference
and responds to request for clarification of the court’s order on summary judgment, entered February
9, 2017.
The parties’ prior settlement efforts, concluding in impasse, briefly were discussed. It
appears further efforts are unlikely at this time to result in a negotiated case resolution. In response
to inquiry by the court concerning anticipated length of trial, in aid to its determination of a trial
setting, question was raised by counsel as to the effect of the court’s denial of summary judgment.
Clarification of its prior order respectfully was requested.

COURT’S DISCUSSION
The court proceeds here immediately to its discussion of the matter, where the case
background is a matter of record. In its prior order, the court denied summary judgment on
plaintiff’s claims. The court refers the parties to that order for the reasons why a triable issue of fact
exists on plaintiff’s claim for breach of contract. The parties also are referred to that order for the
reasons why plaintiff’s claim for specific performance fails under law and why it cannot under law
maintain a claim here premised upon the North Carolina Unfair and Deceptive Trade Practices Act
(“UDPTA”). N.C. Gen Stat. 75-1.1. et seq.
A Rule 16 status conference serves multiple purposes, many of which are memorialized in
Rule 1 of the Federal Rules of Civil Procedure, which countenances a rules construction that will
“secure the just, speedy, and inexpensive determination of every action and proceeding.” More
specifically, a Rule 16 conference may be convened, as here, to discuss settlement activities,
expedite the case disposition, improve the quality of the trial, and discourage wasteful pretrial
activities. Fed.R.Civ.Pro. 16(a).
Counsel for plaintiff’s question as to the status of the specific performance and UDPTA
claims was raised in response to the court’s question as to estimated length of trial. A party’s
calculus of the appropriate amount and type of resources to be dedicated to a trial effectively can
only flow from an understanding of what issues remain for trial. At conference, counsel for each
side expressed divergent understandings as to the effect of the court’s denial of summary judgment
upon those claims. Among the lawyers for plaintiff there seemed some difference of opinion, too.
The court elevated plaintiff’s question to the form of an oral motion, which it took under
advisement indicating, in response to defendant, that it was not necessary for it or any party to
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provide briefing on the issue of the meaning of its prior order on summary judgment.

However,

in the context in which the court now has decided to address the question, a reasonable time to
respond is mandated.
Rule 56(f) of the Federal Rules of Civil Procedure provides in part that “[a]fter giving notice
and a reasonable time to respond, the court may . . . consider summary judgment on its own after
identifying for the parties material facts that may not be genuinely in dispute. Fed. R. Civ. P.
56(f)(3); accord Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Where a court gives notice that
it is considering entering sua sponte summary judgment, the responding party must appreciate its
status as “target” of the court’s inquiry, and possess that motivation when preparing a response.
John G. Alden, Inc. of Mass. v. John G. Alden Ins. Agency of Fla., Inc., 389 F.3d 21, 25 (1st Cir.
2004); accord United States Dev. Corp. v. Peoples Fed. Sav. & Loan Ass’n., 873 F.2d 731, 735 (4th
Cir. 1989). Accordingly, a party responding to a Rule 56(f) inquiry is entitled to “an adequate
opportunity to demonstrate a genuine issue of material fact.” United States Dev., 873 F.2d at 735.
NOTICE is hereby given that the court is considering entering sua sponte partial summary
judgment in favor of defendant with respect to plaintiff’s claim for specific performance and its
claim pursuant to the UDTPA. The court refers the parties to its prior order for identification of
material facts not genuinely disputed and the court’s discussion of applicable law.
CONCLUSION
For the foregoing reasons, where the court is considering entering sua sponte partial summary
judgment in favor of defendant on plaintiff’s specific performance claim and its claim pursuant to
the UDTPA:

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1.

Plaintiff is accorded opportunity to show cause why partial summary
judgment should not issue in favor of defendant with respect to those claims.
Plaintiff shall have 21 days within which to respond to the court’s notice.
Plaintiff’s response shall not exceed 15 pages in length.

If no response

timely is received, the clerk will be directed to enter judgment in defendant’s
favor on these two claims, with trial to be set on plaintiff’s remaining breach
of contract claim.
2.

Defendant shall have 21 days following service of plaintiff’s response within
which to reply. Its reply shall not exceed 15 pages in length.

3.

Accordingly, plaintiff’s oral motion for clarification is DENIED as MOOT.

SO ORDERED, this the 3rd day of March 2017.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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