Miller v. Dairyman Supply Company, Inc.

Filing 59

THIRD AMENDED CASE MANAGEMENT ORDER As Modified: Discovery due by 2/15/2012. Dispositive Motions due by 4/16/2012. Signed by District Judge Aleta A. Trauger on 3/16/12. (xc:Pro se party by regular and certified mail.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
BILLY W. MILLER dba PINEY WOODS
LUMBER CO.,

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff, Counter-Defendant and
Third-Party Plaintiff
v.
DAIRYMAN SUPPLY COMPANY INC.,
Defendant and Counter-Plaintiff
v.
RANDY DRIVER, WILLIAM CARTER
and DALE HIX, Individually and d/b/a
PERFORMANCE AUTO SALES,
Third-Party Defendants.

NO. 3:10-cv-00819

THIRD AMENDED CASE MANAGEMENT ORDER AS MODIFIED
Counsel for Plaintiff/Counter-Defendant/Third-Party Plaintiff, Billy W. Miller d/b/a/
Piney woods Lumber Co. (“Miller”); counsel for Defendant/Counter-Plaintiff, Dairyman’s
Supply Company Inc. (“Dairyman’s”); counsel for Third-Party Defendants, William Carter and
Dale Hix, Individually and d/b/a/ Performance Auto Sales (“Carter” and “Hix”); and Third-Party
Defendant, Randy Driver, hereby submit the following proposed amended case management
order under Local Rule 16.01(d)(4)(a) for approval:
1.

Service of process, jurisdiction, and venue. The parties do not dispute the
sufficiency of service of process, the subject matter jurisdiction of the Court
pursuant to 28 U.S.C. § 1332(a), the Court’s exercise of personal jurisdiction, or
that venue is proper in this district.
1

2.

Mandatory initial disclosures. Pursuant to Fed.R.Civ.P. 26(a)(1), all parties
have made their initial disclosures after the initial case management conference.

3.

Responsive pleadings to the Complaint. All initial responsive pleadings have
been filed.

4.

Discovery. Discovery is not stayed during dispositive motions, unless ordered by
the Court. Local Rule 33.01(b) is expanded to allow 40 interrogatories, including
sub-parts. No motions concerning discovery are to be filed until after the parties
have conferred in good faith and, unable to resolve their differences, have
scheduled and participated in a conference telephone call with Judge Trauger.

5.

Pre-Trial Schedule. The parties shall comply with the following discovery and
pre-trial schedule:
(a) The parties have made their initial disclosures in accord with Fed.R.Civ.P.
26(a)(1).
(b) All non-expert discovery (excluding requests for admissions, but including all
other written discovery and depositions) has been completed. All party
depositions have been completed.
(c) Miller shall disclose to all parties the identity of any expert witnesses to be
used at trial and provide all information required under Fed.R.Civ.P.
26(a)(2)(B) on or before December 1, 2011.
(d) Dairyman’s shall disclose to all parties the identity of any expert witnesses to
be used at trial and provide all information required under Fed.R.Civ.P
26(a)(2)(B) on or before January 1, 2011.

2

(e) Hix and Carter shall disclose to all parties the identity of any expert witnesses
to be used at trial and provide all information required under Fed.R.Civ.P
26(a)(2)(B) on or before February 1, 2011.
(f) Driver shall disclose to all parties the identity of any expert witnesses to be
used at trial and provide all information required under Fed.R.Civ.P
26(a)(2)(B) on or before February 1, 2001.
(g) All expert witness depositions shall be completed on or before February 15,
2012.
(h) All motions related to discovery disputes shall be filed on or before February
15, 2012.
(i) All dispositive motions shall be filed by April 16, 2012. Any response shall
be filed within 21 days of the filing of the motion. Any reply, if necessary,
7
shall be filed within 14 days of the filing of the response. A copy of any
xx
dispositive motion and response thereto shall be served on opposing counsel
by personal delivery or facsimile on or before the date it is filed. No other
filings in support of or opposition to any dispositive motion shall be made
except within the express permission of Judge Trauger.
(j) Requests for admissions may be served at any time prior to trial, subject to the
time for response provided in Fed.R.Civ.P. 36(a).
6.

Dispositive motions. Briefs shall not exceed 20 pages. No motion for partial
summary judgment shall be filed except under leave of court. Any party wishing
to file such a motion shall first file a separate motion that gives the justification

3

for filing a partial summary judgment motion in terms of the overall economy of
time and expense for the parties, counsel and the Court.
7.

Trial time. This jury trial is expected to take no more than three (3) days.

8.

Mediation. Mediation was conducted on May 3, 2011. The case was not settled.

9.

Other issues.
(a) Miller’s overview. Miller asserts that he acted as a broker of lumber between
Dairyman’s and Carter and Hix, and received a small commission. Miller did
not take title to, nor possession of, the lumber with Dairyman’s picking the
lumber up directly from Carter and Hix’s warehouse. Dairyman’s failed to
pick up the last lumber in accordance with the written timetable, and Carter
and Hix refused delivery.

Dairyman’s breached agreement brokered by

Miller, and through a counterclaim asserted a set-off, and refused to pay
Miller $141,227.52 for other lumber brokered from another source which was
received by Dairyman’s. Through a course of dealing, Carter and Hix had
allowed other lumber to be picked up after the agreed written timetable, and
had specifically a course of dealing, Carter and Hix had allowed other lumber
to be picked up after the agreed written timetable, and had specifically agreed
with Miller to allow the last lumber to be picked up, but they refused delivery
of the lumber to Dairyman’s, and sold the lumber to a third party at a higher
price. Miller seeks indemnification from Carter and Hix under breach of
contract, promissory estoppel through detrimental reliance, equitable estoppel,
and unjust enrichment.

Driver was a joint-venturer with Miller in the

brokerage transactions between Dairyman’s and Carter and Hix and received

4

one-half of all commissions. Driver is obligated to pay one-half of any loss
suffered by Miller.
(b) Dairyman’s overview. Dairyman’s asserts that Miller’s claims are barred by
the course of dealings of the parties along with Miller’s own breach of the
contracts between the parties.

Said course of dealings include repeated

waivers of the pick up restrictions contained within said contracts.
Dairyman’s has filed a counter-claim against Miller for damages caused by
Miller’s ultimate breach in refusing to allow the pick up of several loads of
material. Said damages include the increased purchase price and shipping
cost associated with the replacement goods Dairyman’s was forced to
purchase to cover its obligations to its customers. Accordingly, Dairyman’s
would submit that Miller’s claim against it should be dismissed and/or offset
by an amount equal to the aforementioned cover damages.
(c) Hix and Carter’s overview. Hix and Carter assert that they never entered
into any contract with Dairyman’s regarding the sale of goods. On several
occasions, Miller purchased goods from Hix and Carter and resold them to
third parties, purportedly including Dairyman’s.

At no time did Miller ever

operate as an agent or broker for Carter and Hix. Carter and Hix specifically
refused to enter any contract with Miller that would allow Miller (or any third
party purchasing from Miller) to pick up goods after April 1, 2010. Moreover,
there is no writing signed by Hix or Carter regarding a sale of goods in excess
of $500; as such, Miller is prohibited from recover under the statute of frauds.
There was no course of dealings of the parties that allowed Miller (or any

5

third party purchasing from Miller) to pick up goods after April 1 when it had
been specifically and expressly agreed by Miller that any goods would be
picked up prior to April 1, 2010. The goods were not picked up prior to April
1, 2010, and neither Hix nor Carter received any payment from Miller for any
goods not received by Miller. Miller did not perform due to his failure to pick
up the goods prior to April 1, 2010, which constituted the first material breach
and excused any performance by Hix and Carter. Moreover, as such, neither
Hix nor Carter may be liable to Miller, and Hix and Carter would submit that
Miller’s claim against them should be dismissed.
(d) Driver’s overview. Driver asserts that he did not enter a joint venture or any
other form of agreement or relationship with Miller and/or any other party that
would result in any indemnity liability or liability of any kind to Miller and/or
any other party.

As a result, Miller’s claim against Driver should be

dismissed.
(e) Authenticity of documents. The parties will endeavor to create admissions of
facts and/or stipulations regarding the authenticity of documents in order to
avoid unnecessary discovery or proof.
(f) Dispositive legal issues or motions. It is likely that one or more parties will
file motions for summary judgment, or partial summary judgment as to certain
counts, in this case.
(g) Electronic discovery. The parties have agreed on the method of handling
electronic discovery, and therefore Administrative Order 174 will not apply.
It is so ORDERED, this _______ day of __________________________, 2012.
16th
March

6

District Judge Aleta A. Trauger

Respectfully submitted for entry:

/s/ David Veile
G. Jeff Cherry, Esq.
David H. Veile, Esq.
Lowery, Lowery, & Cherry, PLLC
150 Public Square
Lebanon, TN 37087

7

CERTIFICATE OF SERVICE
I hereby certify that on March 15, 2012, a true and exact copy of the foregoing document
was sent via the Court’s Electronic Filing System to the following:
Louis W. Oliver, III, Esq.
105 Hazel Path
P.O. Box 1616
Hendersonville, TN 37077-1616
Byron M. Gill, Esq.
109 North Castle Heights Avenue
Lebanon, TN 37087
and via U.S. Mail, postage prepaid upon:
Randy Driver, pro se
162 Dixon Road
Lafayette, TN 37083

/s/ David Veile
David Veile

8