Buergofol GmbH v. Omega Liner Company, Inc.

Filing 554

ORDER denying 393 Motion to Amend/Correct.. Signed by U.S. District Judge Karen E. Schreier on 11/25/2024. (JMS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BUERGOFOL GMBH,
Plaintiff,
vs.
OMEGA LINER COMPANY, INC.,

4:22-CV-04112-KES
ORDER DENYING MOTION TO
MODIFY SCHEDULING ORDER AND
STOP BUERGOFOL FROM FILING
DISPOSITIVE MOTIONS UNTIL THE
CLOSE OF DISCOVERY

Defendant.
Defendant, Omega, moves the court to amend its scheduling order to
incorporate additional discovery protocols and bar plaintiff, Buergofol, from
filing dispositive motions until after the close of discovery. Docket 393.
Buergofol opposes the motions. Docket 408.
I.

Proposed Discovery Procedures
Omega’s proposed discovery procedures would require a party seeking

relief to file a three-page letter with the court outlining the issues in dispute
and a separate meet-and-confer certification pursuant to Local Rule 37.1.
Docket 394 at 5. The other party would then have three days to file their own
three-page letter summarizing their position and, if the issue concerns ESI, an
expert affidavit describing the information, the systems to be searched, the
burden to produce the information, and the estimated associated expenses. Id.
at 5-6. The court would then review the submissions and either schedule a

teleconference to hear argument or order additional briefing. Id. at 6. Any
additional briefing would be confined to a page limit set by the court on an
issue-by-issue basis. Docket 413 at 9. 1 The timing of the briefing would also be
expedited—the first brief would be filed within seven days of the court’s order,
the response seven days after that, and the reply within five days of the
response. Docket 394 at 6.
Omega proposes this process in the hope that it will help to promptly
address and simplify the parties’ discovery disputes. Id. Omega notes that this
litigation has been littered with numerous discovery motions and lengthy
briefing. Id. at 7 (showing that as of the date of this motion, the Omega and
Buergofol had each filed ten discovery motions with 690 and 591 total pages of
briefing by the respective parties). And Omega anticipates that more discovery
disputes and motions are on the horizon. Id. at 11-16 (discussing each
discovery motion that has already been filed and the motions Omega plans to
make in the coming months).
Buergofol opposes the imposition of Omega’s proposed process, arguing
that the additional discovery steps would only serve to open the door to
arguments between the parties about whether the new rules are being adhered
to. Docket 408 at 3. Additionally, Buergofol contends that that it is unlikely
that any issue will be resolved short of additional briefing. Id. at 8.
1 In its initial brief, Omega proposed that the briefing be capped at 15 pages for

the opening brief, 15 pages for a responsive brief, and five pages for a reply
brief. Docket 394 at 6. Buergofol argued that the 15-page-limit was arbitrary.
Docket 408 at 8. In its reply, Omega opined that the court should adjust the
page limit as needed for each issue. Docket 413 at 9.
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The court agrees with Buergofol on both counts. Given the ceaseless
arguing between the parties regarding compliance with the standard discovery
rules and practices, the court can assume that adding additional procedures
will only provide more fodder for dispute. Moreover, the court is not convinced
that any issues will be resolved without additional briefing, or that such
briefing will actually be brief. This court has, on multiple occasions, issued
orders granting leave to file overlength briefs, sur-replies, and sur-sur replies.
See e.g., Dockets 209, 389 (overlength briefs); Dockets 274, 509, 430 (surreply); Docket 281 (sur-sur-reply). Additionally, the parties regularly file
hundreds of pages of attachments with their motions. For example, Buergofol
filed 105 pages of exhibits in support of its motion at Docket 361 and Omega
filed 102 pages of exhibits in opposition to the motion (in addition to its 41page brief). See Dockets 364, 390. Thus, adding a letter-writing stage and a
court review stage would likely only delay the inevitable slew of lengthy
briefing.
The court recognizes that discovery issues in this case have been heavily
briefed, as highlighted by Omega’s recounting of the hundreds of pages worth
of briefing that have been filed. See Docket 394 at 7. Thus, if Omega believes it
can shorten and “streamline” its own briefs, the court welcomes it to do so. See
Docket 413 at 9 (Omega stating that a 15-page limit on discovery issues “will
likely be too much” in many cases). But at this time, the court will not impose
a limit. Omega’s motion to implement additional discovery procedures is
denied.
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II.

Barring Dispositive Motions Until the Close of Discovery
Omega also requests the court prohibit Buergofol from filing dispositive

motions until after discovery is completed. Docket 394 at 20. Omega argues
that Buergofol has been consistently blocking Omega’s discovery efforts in
order to gain a tactical advantage. Id. Omega claims that because “Buergofol
has not produced fundamental information that Omega needs . . . to prepare
its defenses . . . Omega cannot possibly respond to a motion for summary
judgment of infringement” or file its own motion. Id. Buergofol asserts that it
would be unfair to place a limit on only Buergofol’s filings. Docket 408 at 11.
“As a general rule, summary judgment is proper ‘only after the
nonmovant has had adequate time for discovery.’ ” Iverson v. Johnson Gas
Appliance Co., 172 F.3d 524, 530 (8th Cir. 1999) (quoting In re TMJ Litig., 113
F.3d 1484, 1490 (8th Cir. 1997)). “[S]ummary judgment is premature where
parties do not have access to relevant information entirely under another
party's control.” Nat’l Sur. Corp. v. Dustex Corp., 291 F.R.D. 321, 327 (N.D.
Iowa 2013). So “to prevent a party from being unfairly thrown out of court by a
premature motion for summary judgment[,]” Rule 56(d) allows non-movants to
“request a continuance . . . until adequate discovery has been completed if they
otherwise cannot present facts sufficient to justify their opposition.” Hamilton v.
Bangs, McCullen, Butler, Foye & Simmons, L.L.P., 687 F.3d 1045, 1050 (8th Cir.
2012) (citation omitted); see also Fed. R. Civ. P. 56(d).
The court finds that Rule 56(d) creates a sufficient safeguard to shield
Omega from its concerns of premature summary judgment motions founded on
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lopsided discovery. If and when Buergofol files such a motion, the court will
review Omega’s filings and arguments related to the sufficiency of discovery.
Thus, the court denies Omega’s motion to bar Buergofol from making
dispositive motions until the completion of discovery.
CONCLUSION
Based on the foregoing, it is
ORDERED that Omega’s motion to amend the scheduling order to
provide for additional discovery procedures and to preclude Buergofol from
filing dispositive motions until after the close of discovery (Docket 393) is
DENIED.
Dated November 25, 2024.

BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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