Harvest Group LLC v. Love's Travel Stops & Country Stores Inc

Filing 203

ORDER. Harvest's Motion for Leave to Amend Doc. No. 188 is GRANTED. Defendants' Motion to Limit Post-Remand Discovery Doc. No. 196 is DENIED without prejudice. Harvest's Motion to Lift Stay of Discovery Doc. No. 189 is GRANTED to the extent set forth in this order. This order resolves all remaining pending motions in this action. Signed by Judge Jodi W. Dishman on 11/25/24. (rp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
HARVEST GROUP LLC,
Plaintiff,
v.
LOVE’S TRAVEL STOPS &
COUNTRY STORES, INC., and
MUSKET CORPORATION,
Defendants.

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Case No. CIV-20-00435-JD

ORDER
Various motions are before the Court concerning next steps in this action
following the Tenth Circuit’s remand in Harvest Group, LLC v. Love’s Travel Stops &
Country Stores, Inc., 90 F.4th 1271 (10th Cir. 2024). The parties seek to lift the stay of
discovery from the Court’s February 14, 2024, order [Doc. No. 173 ¶ 4] and set a status
and scheduling conference. See [Doc. Nos. 189, 191, 193, 195, 199]. The Court granted
the request for a status and scheduling conference by separate order. [Doc. No. 202].
Plaintiff Harvest Group, LLC (“Harvest”) filed a Partially Opposed Motion for Leave to
Amend and Brief in Support. [Doc. No. 188]. Defendants Love’s Travel Stops & Country
Stores, Inc. and Musket Corporation (“Defendants”) responded in opposition. [Doc. No.
190]. Harvest replied. [Doc. No. 192]. Defendants also filed a Motion to Limit PostRemand Discovery. [Doc. No. 196]. Harvest responded [Doc. No. 200], and Defendants
replied [Doc. No. 201].

Harvest’s motion for leave to amend is granted. The Court declines to consider
Defendants’ motion to limit discovery until Defendants comply with Local Civil Rule
37.1; it is therefore denied. The condition on the stay of discovery has been satisfied by
the completion of the judicial settlement conference, see [Doc. No. 194], and thus, there
is no stay in place. However, the Court orders the parties to confer in good faith to
resolve issues on the scope of post-remand discovery before the status and scheduling
conference or otherwise be prepared to discuss those issues at the conference, in line with
the general backdrop on post-remand discovery set forth in this order.
I.

BACKGROUND
As demonstrated by the detailed background sections provided in the parties’

briefs, there is a fair amount of complexity to the long factual and procedural history of
this action, though the claim itself (breach of contract) is not complex. The Court need
not belabor the details in this order.
To summarize, Harvest brings a claim of breach of contract against both
Defendants, claiming that it substantially performed under the parties’ agreement but
Defendants have failed to pay. Under the agreement, Harvest was to help Love’s acquire
“economic development incentives” related to Love’s development of a renewable diesel
facility in Hastings, Nebraska. See [Doc. No. 119-1 at 1].1 Harvest would earn a fee of 10
percent of the “net present value” of any “incentives/benefits” it helped Love’s acquire
and that Love’s chose to use. [Id. at 2]. Harvest alleges that it is owed a fee for helping

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The Court uses page numbering from the CM/ECF stamp across the top of
docket filings.
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Love’s acquire an “incentive/benefit” by meeting with city and county officials and
obtaining a favorable property tax assessment, which greatly reduced the project’s
estimated tax burden from Love’s projected estimate.
Both sides moved for summary judgment, and the court granted Love’s motion.
[Doc. No. 141]. The court ruled, in part, that the tax classification “cannot be considered
a benefit under the Agreement” because the classification “was not the result of any
action of Plaintiff but merely the result of the Assessor applying the applicable law.” [Id.
at 6–7]. Further, under the contract, payment is “due upon Love’s receipt of the
Incentives Presentation Binder [“IPB”] from Harvest,” and “[o]nly the incentives Love’s
chooses to utilize will be included in the IPB.” [Doc. No. 119-1 at 2]. The court
concluded that because the tax assessment was included in the IPB, and because the
assessment was not an incentive/benefit under the agreement, the IPB was never properly
presented to Love’s; thus, payment was not due when Harvest presented the IPB to
Love’s on March 25, 2020. [Doc. No. 141 at 7].
On appeal, the Tenth Circuit reversed the court’s grant of summary judgment.
Harvest Group, 90 F.4th at 1286. The court determined that the tax assessment
constituted an incentive/benefit under the parties’ agreement, id. at 1281–82, and it
remanded to this Court to determine whether Harvest earned a fee based on this
incentive/benefit, see id. at 1286. A genuine dispute of material fact exists, according to
the Tenth Circuit, as to whether Harvest’s efforts contributed to the lower tax assessment
or the tax assessor reached her classification by mechanically applying Nebraska law. Id.

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at 1282–85. The circuit also remanded for further consideration of the accrual of interest
and the availability of costs and attorney’s fees. Id. at 1285–86.
Now that the action is before the Court after remand, Harvest seeks leave to
amend its complaint and requests that the Court lift its stay of discovery and Defendants
seek to limit the scope of post-remand discovery.
II.

DISCUSSION
A.

The Court grants Harvest leave to amend its complaint.

Harvest seeks leave to file a fourth amended complaint. [Doc. No. 188].
Defendants object to one specific paragraph in the proposed amended complaint that
concerns the calculation of damages. [Doc. No. 190]. Paragraph 29 of the proposed
amended complaint reads:
29.
Moreover, on information and belief, the value of Project Pavestone—and,
thus, the value of the incentives Harvest procured—has gone up considerably
since this lawsuit was filed. In light of Defendants’ positions in this case that they
still do not owe Harvest its fee, Harvest is entitled to reap the benefit of that
increased valuation. Accordingly, Harvest estimates Defendants now owe Harvest
in excess of $14 million in fees (exclusive of interest, attorney fees, and costs) as
of April 2024. That amount continues to grow each day Defendants illicitly
withhold payment to Harvest.
[Doc. No. 188-1 ¶ 29]. According to Defendants, the Court should deny leave to amend
because Harvest unduly delayed in making this allegation and such amendment would be
futile. [Doc. No. 190 at 18–25].
“Allowance of an amendment is within the discretion of the district court” when
amendment is sought after remand, “unless the appellate court has issued a mandate
calling for amendment or its mandate has precluded amendment.” R.E.B., Inc. v. Ralston

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Purina Co., 525 F.2d 749, 751 n.1 (10th Cir. 1975). Because the mandate is silent as to
amendment, Federal Rule of Civil Procedure 15 controls here. Under Rule 15, after a
responsive pleading has been filed, “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The
court should freely give leave when justice so requires.” Id. Courts must heed this
mandate by affording litigants the opportunity to test their claims on the merits “[i]f the
underlying facts or circumstances relied upon . . . may be a proper subject of relief.”
Foman v. Davis, 371 U.S. 178, 182 (1962). However, amendment should not be
permitted if there exists an “apparent or declared reason” to deny the amendment, “such
as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [or] futility of amendment.” Id.
1.

Harvest has not unduly delayed in seeking to add Paragraph 29.

Defendants first assert that the Court should deny leave to amend because
“Harvest unduly delayed in seeking leave to add the allegations in Paragraph 29 of its
Proposed Fourth Amended Complaint.” [Doc. No. 190 at 21].
Although undue delay can justify denying a motion to amend, “[e]mphasis is on
the adjective: ‘Lateness does not of itself justify the denial of the amendment.’” Minter v.
Prime Equip. Co., 451 F.3d 1196, 1205 (10th Cir. 2006) (quoting R.E.B., 525 F.2d at
751). To determine if a delay is undue, the Tenth Circuit “focuses primarily on the
reasons for the delay.” Id. at 1206. A finding of “prejudice, bad faith, futility, or . . . a
substantial burden on the court” is not necessary to deny leave to amend for undue delay;
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rather, denial “is appropriate ‘when the party filing the motion has no adequate
explanation for the delay.’” Id. at 1205–06 (quoting Frank v. U.S. West, Inc., 3 F.3d 1357,
1365–66 (10th Cir. 1993)). Under Tenth Circuit precedent,
Courts will properly deny a motion to amend when it appears that the
plaintiff is using Rule 15 to make the complaint a moving target, to salvage
a lost case by untimely suggestion of new theories of recovery, to present
theories seriatim in an effort to avoid dismissal, or to knowingly delay
raising an issue until the eve of trial.
Id. at 1206 (cleaned up). In contrast, in Minter, the Tenth Circuit concluded that a
plaintiff’s explanation for asserting an additional claim “just three weeks before the
scheduled start of trial”—that “he believed [the claim] was already fairly encompassed by
his pleadings”—constituted “an excusable cause for the delay, especially in light of the
defendant’s own dilatoriness in waiting until discovery was closed and the trial was
shortly scheduled to begin to spring the fact that it was changing its position regarding a
key fact in the case.” Id. at 1206–07; see also R.E.B., 525 F.2d at 752 (concluding an
amendment proposed “five and one-half weeks before trial” did not constitute undue
delay because “[t]he amendments did not propose substantially different issues” and
“[t]he most important effect of the amendments was to refine the demands”).
Harvest asserts that it “hasn’t delayed in seeking amendment” because its
“alternate damages allegations” in Paragraph 29 “draw on arguments Defendants raised
and developed on appeal.” [Doc. No. 188 at 27]. Specifically, according to Harvest,
Defendants raised for the first time on appeal the argument that Harvest never presented
Defendants with an Incentives Presentation Binder and the parties never agreed on
Harvest’s fee. [Id. at 26]. Harvest maintains that it is “entitled to the remainder of the
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$7,494,910 payment that’s been due since March 2020,” when Harvest asserts it
submitted the Incentives Presentation Binder—“plus all accrued interest, attorney fees,
and costs incurred so far.” [Id. at 22]. But Harvest asserts that Paragraph 29 pertains to
“an alternate measure of relief,” relying on Defendants’ “newfound” argument that the
parties never agreed on Harvest’s fee. [Id. at 26]. According to Harvest, the present
motion is “the first chance Harvest has had to respond to the implications of Defendants’
appellate positions and update the pleadings,” especially in light of the stay of discovery
entered on July 19, 2021. [Id. at 27–28] (citing [Doc. No. 110]).
Given Harvest’s proffered explanation, its delay in raising the allegations in
Paragraph 29 is not undue. Harvest has put forth a “colorable argument,” that it only now
raises these allegations because of Defendants’ litigation conduct rather than Harvest’s
dilatoriness, gamesmanship, or bad faith.2 See Minter, 451 F.3d at 1207. Paragraph 29
does not raise a new legal claim or affect the substance of Harvest’s breach of contract
claim; instead, the allegations in that paragraph go toward the damages Harvest might
recover if it prevails on its claim. Contrary to Defendants’ assertions, allowing this
amendment would not allow Harvest “to continuously move the goal line or assert
theories seriatim.” [Doc. No. 190 at 23]. Rule 8 provides that “a demand for the relief
sought . . . may include relief in the alternative or different types of relief.” Fed. R. Civ. P.
8(a)(3). Pleading in accordance with Rule 8 is not improperly “hav[ing] it both ways.”
[Doc. No. 190 at 23]. Lastly, there is no looming trial deadline; this is not a situation

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In so ruling, the Court makes no determination as to the merits of this argument.
Nor does it imply that Defendants have engaged in bad-faith litigation conduct.
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where the plaintiff has stalled until the eve of trial to raise a novel issue. Thus, undue
delay does not provide a basis to deny Harvest’s motion to amend.
2.

Amending the complaint to include Paragraph 29 would not be
futile.

Defendants next argue that Harvest’s inclusion of Paragraph 29 would be futile. In
support of this argument, Defendants point to a provision in the parties’ agreement that
provides: “Fee amounts are not subject to adjustment based on Love’s subsequent sale,
abandonment, restructuring, change in business activity, or other contingencies that may
have a positive or negative effect on the incentives/benefits.” [Doc. No. 190 at 25]
(quoting [Doc. No. 72-2 at 3]). Thus, Defendants argue, “[i]f Harvest is given leave to
include Paragraph 29 regarding its doubled fee calculation, its claim would be subject to
dismissal because the Agreement’s plain language bars such recovery.” [Id.].
“While Rule 15 provides that leave to amend a complaint shall be freely given
when justice so requires, a district court may refuse to allow amendment if it would be
futile.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013).
Because “[a] proposed amendment is futile if the complaint, as amended, would be
subject to dismissal. . . . [t]he futility question is functionally equivalent to the question
whether a complaint may be dismissed for failure to state a claim.” Gohier v. Enright,
186 F.3d 1216, 1218 (10th Cir. 1999). To survive dismissal for failure to state a claim, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
As discussed above, Paragraph 29 does not raise an independent legal claim. The
allegations contained in that paragraph go toward the measure of damages Harvest might
be owed, not the elements of its cause of action for breach of contract. A challenge to the
relief sought does not provide grounds for dismissal for failure to state a claim; a motion
to dismiss tests the sufficiency of a claim, not the relief demanded. See Coll v. First Am.
Title Ins. Co., 642 F.3d 876, 901 (10th Cir. 2011) (“[T]he prayer for relief is no part of the
cause of action and . . . the parties are entitled to such relief and to such judgment as the
complaint . . . makes out.” (quoting Daniels v. Thomas, 225 F.2d 795, 797 (10th Cir.
1955))). Further, Harvest has raised a plausible argument that the relevant contract
provision does not bar the relief sought in Paragraph 29: if the parties never agreed on
Harvest’s fee, it would not constitute an “adjustment” of that fee amount to consider an
updated valuation of the project. See [Doc. No. 192 at 9–10].
Because it would not be futile to include Paragraph 29 and Harvest did not unduly
delay in moving to amend, the Court grants Harvest leave to amend its complaint—
including by adding proposed Paragraph 29—under Federal Rule of Civil Procedure
15(a)(2). See LCvR15.1 (providing that the deadline to file the amended pleading shall be
within seven days of the Court’s order and that the proposed pleading shall not differ
from that previously submitted to the Court).

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B.

Defendants’ Motion to Limit Post-Remand Discovery is denied for
failure to comply with Local Civil Rule 37.1.

Defendants seek to limit the scope of discovery “to discovering certain
information relevant to the Property Classification Issues and the Personal Property Tax
Exemption Issue.” [Doc. No. 196 at 7]. Harvest opposes this motion, in part because it
asserts that “Defendants haven’t met and conferred with Harvest over the relief they seek
in their motion, which violates LCvR37.1.” [Doc. No. 200 at 14]. Defendants’ motion
includes a Certificate of Conference “certify[ing] that counsel for the parties conferred
regarding the relief sought” in the motion and references Harvest’s statement in the
parties’ March 6, 2024, joint status report that “there should be ‘no limits’ on discovery
‘beyond those in the Federal Rules and any that could be reasonably gleaned from the
Tenth Circuit’s mandate.’” [Doc. No. 196 at 14] (quoting [Doc. No. 177 at 6]). Harvest
contends that this certificate does not comply with Local Civil Rule 37.1 because “the
conference Defendants’ counsel references took place at least four months before the
filing of Defendants’ motion and pertains to the Joint Status Report . . . not to the relief
currently sought.” [Doc. No. 200 at 5 n.2] (emphasis omitted). Defendants reply that
“nothing in LCvR37.1 states that the conference envisioned must occur within a specific
amount of time prior to filing the discovery motion.” [Doc. No. 201 at 7].
Defendants’ motion requests that the Court limit the scope of discovery under
Federal Rule of Civil Procedure 26. [Doc. No. 196 at 5–6]. Thus, as a motion “relating to
discovery pursuant to Fed. R. Civ. P. 26,” Defendants’ motion is subject to the
requirements of Local Civil Rule 37.1. Under that rule, the Court “shall refuse to hear

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any such motion or objection unless counsel for movant first advises the court in writing
that counsel personally have met and conferred in good faith and, after a sincere attempt
to resolve differences, have been unable to reach an accord.” LCvR37.1 (emphasis
added). The parties’ conference pursuant to the Court’s order “to confer and file a joint
status report regarding the status of and next steps in this action” [Doc. No. 173 at 1] is
not sufficient to satisfy Local Civil Rule 37.1 as to this particular motion. There is
nothing in the joint status report suggesting that the parties met and conferred regarding
the specific requests laid out in Defendants’ motion. See [Doc. No. 196 at 10–12]. The
parties must confer in good faith to make a sincere attempt to resolve this particular
discovery dispute; only if they are unable to reach an agreement after this meeting will
the Court intervene.
Therefore, Defendants’ motion is denied without prejudice to refiling after
complying with Local Civil Rule 37.1. See Morgan v. Provident Life & Accident Ins. Co.,
No. CIV-20-180-D, 2023 WL 7927784, at *1 (W.D. Okla. Nov. 16, 2023) (denying a
discovery motion under LCvR37.1 because “[t]he record does not show a serious attempt
by either side to meet and confer about the disclosure and discovery issues raised by
Defendant’s Motion before involving the Court” and the Court believed the dispute to be
“capable of resolution by counsel through reasonable, mutually cooperative efforts”);
accord Miller v. Legacy Bank, No. CIV-20-946-D, 2022 WL 17083652 (W.D. Okla.
Nov. 18, 2022).
To ensure quick and efficient resolution of discovery-related issues without
judicial intervention going forward, the Court reminds the parties that, absent specific
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instruction from the Tenth Circuit’s mandate, Federal Rule of Civil Procedure 26(b)(1)
sets forth the scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Under binding Supreme Court precedent, this provision “has been construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
However, this provision also requires proportionality, meaning the discovery sought must
be proportional to the needs of the case. And it should be construed “to secure the just,
speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P.
1. “In the event that the parties—after conferring in good faith and sincerely attempting
to resolve their differences without court intervention—are unable to reach a resolution
and deem a discovery-related motion necessary, the motion shall set out any outstanding
discovery issues in accordance with LCvR7.1(e).” Miller, 2022 WL 17083652, at *2.
C.

Any “stay” of discovery lifted at the conclusion of the unsuccessful
judicial settlement conference under the Court’s prior order.

Finally, Harvest seeks to lift the “stay” it asserts the Court imposed in its order of
February 14, 2024. [Doc. No. 189 at 1]. The Court required the parties to engage in a
formal ADR procedure before additional work in this action. See [Doc. No. 173 ¶ 4]
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(“The Court will require the parties to engage in formal ADR procedure before additional
work in this action, given the parties now have the benefit of the Tenth Circuit’s
decision.”). The parties satisfied this condition by attending a judicial settlement
conference. See [Doc. No. 194].
Thus, the condition imposed by the Court has been satisfied and there is no stay in
place. But the Court requires the parties to confer in good faith to resolve any dispute
regarding the scope of post-remand discovery before the upcoming status and scheduling
conference. The parties should refrain from serving discovery that implicates the disputed
post-remand scope until they have met and conferred and reached an agreement, or until
they present the issue to the Court at the upcoming conference.
III.

CONCLUSION
Harvest’s Motion for Leave to Amend [Doc. No. 188] is GRANTED. Defendants’

Motion to Limit Post-Remand Discovery [Doc. No. 196] is DENIED without prejudice.
Harvest’s Motion to Lift Stay of Discovery [Doc. No. 189] is GRANTED to the extent
set forth in this order. This order resolves all remaining pending motions in this action.
IT IS SO ORDERED this 25th of November 2024.

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