Texas State Aquarium v. Fishman Chemical of North Carolina, LLC et al

Filing 57

MEMORANDUM AND ORDER denying 49 MOTION for Summary Judgment Against Fishman Chemical of North Carolina, LLC, striking 56 MOTION for Default Judgment against Asiamerica Enterprise, Inc. (Signed by Judge Hilda G Tagle) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
TEXAS STATE AQUARIUM,
Plaintiff,
VS.
FISHMAN CHEMICAL OF NORTH
CAROLINA, LLC, et al,
Defendants.

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September 13, 2016
David J. Bradley, Clerk

CIVIL NO. 2:15-CV-214

MEMORANDUM AND ORDER
BE IT REMEMBERED that on September 13, 2016 the Court DENIED
Plaintiff Texas State Aquarium Association D/B/A Texas State Aquarium’s Motion
for Summary Judgment and Motion for Default Judgment. Dkt. Nos. 49 and 56.
I.

Background
On May 14, 2015 Plaintiff Texas State Aquarium Association D/B/A Texas

State Aquarium (“TSA”) filed a complaint against Defendants Fishman Chemical of
North Carolina, L.L.C. (“Fishman Chemical”), David A. Fishman (“D. Fishman”),
and Michael Fishman (“M. Fishman”) (collectively “Defendants”). Compl., Dkt. No.
1. TSA filed its first amended complaint on May 18, 2015. First Am. Compl., Dkt.
No. 4. TSA alleged that on April 8, 2015 it purchased 1 kilogram of trichlorfon, a
chemical used to treat parasites in water systems, from Fishman Chemical, and
subsequently received a package labeled as 1 kilogram of tricholorfon. Id., ¶ 3.6.
TSA alleged that after administering chemicals from this package to its 240,000gallon seawater system, the system immediately experienced a 98% mortality rate,
resulting in the almost immediate loss of 389 specimens.1 Id., ¶¶ 3.2, 3.10. TSA

TSA notes that “[a]mong the specimens lost in this tragic event were some of TSA’s most beloved
and treasured creatures,” including: Neville Roundbottom, a balloonfish; Hans, a sand tiger shark;
four nurse sharks; Sybil, a scamp grouper; three green moray eels; and Jaws, a Warsaw grouper.
First Am. Compl., Dkt. No. 4, ¶ 3.17.
1

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further alleged that the death of these specimens resulted from Fishman Chemical’s
provision to TSA, in violation of the parties’ contract, “a product that was not
trichlorofon,” but instead the highly toxic chemical hydroquinone. Id., ¶ 4.4.
Defendants filed a motion to dismiss under Federal Rules of Civil Procedure
12(b)(2), 12(b)(3), and 12(b)(6) on July 8, 2015. Dkt. No. 10. TSA responded to
Defendants’ motion, and included a request that the Court grant leave for TSA to
file a second amended complaint to address claims against David Fishman and
Michael Fishman. Dkt. No. 14. Defendants filed a reply. Dkt. No. 15. On December
11, 2015 the Court granted in part and denied in part Defendants’ motion to
dismiss. Dkt. No. 21. Specifically, the Court dismissed all claims against David
Fishman and Michael Fishman for lack of personal jurisdiction (and so found TSA’s
request for leave to file a second amended complaint against these defendants
moot), denied the dismissal of claims against Fishman Chemical for lack of personal
jurisdiction, denied defendants’ motion to dismiss for improper venue, and denied
defendants’ motion to transfer venue. Id.
On December 16, 2015, with leave of the Court, TSA filed its third amended
complaint adding Defendants A-FAM, LLC d/b/a National Fish Pharmaceuticals,
Asiaamerica Enterprise, Inc. d/b/a 2A Pharmachem USA (“Asiamerica”), and AA
Tech Solution, Inc.. Third Am. Compl., Dkt. No. 32. In this complaint TSA alleged,
among other things, a breach of contract claim against Fishman Chemical
essentially identical to the contract claim raised in TSA’s initial filing. See Dkts. No.
1 and 32. Fishman Chemical filed an answer to this complaint on December 28,
2015. Dkt. No. 28. Meanwhile, on December 22, 2015, with leave of the Court,
Fishman Chemical filed a third party complaint against Asiamerica, alleging the
company “is liable for all of Plaintiff’s claims against Defendant [TSA]” on the basis
that “the chemical it sold to Defendant,” which was “subsequently sold to TSA,” was
“not trichlorfon as represented, but was hydroquinone.” Third Party Compl., Dkt.
No. 27 ¶¶ 7, 9. Asiamerica, unrepresented by counsel, responded to this complaint
in letter form on April 11, 2016. See Dkt. No. 38. TSA filed the instant motion for
default judgment against Asiamerica on September 6, 2016. Dkt. No. 56.
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TSA filed the instant motion for summary judgment on its breach of contract
claim against Fishman Chemical on July 22, 2016. Dkt. No. 49.2 Fishman Chemical
did not respond to TSA’s motion. A party’s failure to submit a timely response
constitutes representation of non-opposition. S.D. Tex. Civ. R. 7.4. Still, the Court
will analyze TSA’s motion to determine if it is entitled to the relief that it seeks. See
Luera v. Kleberg County, Texas, No. 11–40774, 2012 WL 490407 (5th Cir. 2012)
(unpublished opinion) (“We have approached the automatic grant of a dispositive
motion, such as a grant of summary judgment based solely on a litigant's failure to
respond, with considerable aversion”); see also Jaroma v. Massey, 873 F.2d 17, 20
(1st Cir. 1989) (“[T]he district court cannot grant a motion for summary judgment
merely for lack of any response by the opposing party, since the district court must
review the motion and the supporting papers to determine whether they establish
the absence of a genuine issue of material fact”).
II.

Legal Standards
A. Summary Judgment
“[A] court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Therefore, “[f]or summary judgment, the
initial burden falls on the movant to identify areas essential to the non-movant’s
claim in which there is an ‘absence of a genuine issue of material fact.’” Healix
Infusion Therapy, Inc. v. Helix Health, LLC, 737 F.Supp.2d 648 (S.D.Tex. 2010)
(citing Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). “A genuine
issue of material fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-movant.” Piazza’s Seafood World, L.L.C. v. Odom, 448
F.3d 744, 752 (5th Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

The Court notes that TSA in fact filed two motions for summary judgment on July 22, 2016, Dkt.
Nos. 48 and 49. However, since these motions appear to be identical but for the addition of a
proposed order (Dkt. No. 49-10) to Dkt. No. 49, the Court will treat Dkt. No. 49 as an amended
motion and consider only this document and its exhibits pursuant to TSA’s instant request for
summary judgment.
2

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248 (1986)). “‘[A] complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial’ and
‘mandates the entry of summary judgment’ for the moving party.” United States ex
rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).
The Court must view all evidence in the light most favorable to the
nonmoving party. Piazza’s Seafood World, 448 F.3d at 752; Lockett v. Wal-Mart
Stores, Inc., 337 F. Supp. 2d 887, 891 (E.D. Tex. 2004). Factual controversies must
be resolved in favor of the nonmovant, “but only when there is an actual
controversy, that is, when both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). “When
assessing whether a dispute to any material fact exists, [courts] consider all of the
evidence in the record but refrain from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co.,
530 F.3d 395, 398–99 (5th Cir. 2008).
“Once the moving party has initially shown ‘that there is an absence of
evidence to support the non-moving party’s cause,’ the non-movant must come
forward with ‘specific facts’ showing a genuine factual issue for trial.” TIG Ins. Co.
v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002) (quoting Celotex, 477
U.S. at 325). The Court will not, “in the absence of proof, assume that the
nonmoving party could or would prove the necessary facts.” Id. (emphasis deleted)
(citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)). Rather, the
nonmovant must demonstrate specific facts identifying a genuine issue to be tried
in order to avoid summary judgment. Piazza’s Seafood World, 448 F.3d at 752;
Lockett, 337 F. Supp. 2d at 891; see also Fed. R. Civ. P. 56(e). The court is not
required to search the record on the nonmovant’s behalf for evidence that may raise
a fact issue. Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
1988).

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B. Default Judgment
Federal Rule of Civil Procedure 55 authorizes a court to enter a default
judgment when a defendant fails to appear in an action after service of process.
Fed. R. Civ. P. 55(b)(2). Local Rule 5.5 requires that motions for default judgment
be served on defendants by certified mail (with return receipt requested.)
Nonetheless, even with proper service, a plaintiff is not entitled to default judgment
as a matter of right. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). Instead, the
court must consider the pleadings and find sufficient basis therein. Nishimatsu
Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). A defendant in
default “admits the plaintiff’s well-pleaded allegations of fact.”

Id.

That is,

“[u]nlike questions of actual damage, which must be proved in a default situation,
conduct on which liability is based may be taken as true as a consequence of the
default.” J & J Sports Prods., Inc. v. Gamez, No. 7:12-CV-333, 2013 WL 1790129, at
*1 (S.D. Tex. Apr. 26, 2013) (quoting Frame v. S–H, Inc., 967 F.2d 194, 205 (5th Cir.
1992) (citations omitted)).
III.

Analysis

A. Breach of Contract Claim
According

to

Texas

law,

“‘[t]he

essential

elements

of

a

breach

of contract action are: (1) the existence of a valid contract; (2) performance or
tendered performance by the plaintiff; (3) breach of the contract by the defendant;
and (4) damages sustained by the plaintiff as a result of the breach.’” Smith Intern.,
Inc. v. Egle Group, LLC, 490 F.3d 380, 387 (5th Cir.2007) (quoting Valero Mktg. &
Supply Co. v. Kalama Int'l, L.L.C., 51 S.W.3d 345, 351 (Tex.App.-Houston [1st
Dist.] 2001, no pet.)).
The parties have effectively stipulated to the first three elements of this
cause of action. In its answer to TSA’s third amended complaint, Fishman Chemical
admits that it entered into a valid contract with TSA, for the sale of one kilogram of
trichlorofon, in exchange for $272.65. Def.’s Ans. to Third Am. Compl., Dkt. 28, ¶
4.2. It also admits that TSA fully performed its obligations under this contract, by
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tendering $272.65 to Fishman Chemical. Id., ¶ 4.3. Finally, Fishman Chemical
admits that the product it provided TSA “was not trichlorofon,” the chemical that,
by Fishman Chemical’s own admission, it was obligated to deliver under its contract
with TSA. Id., ¶¶ 4.2, 4.4. Thus, the only element of TSA’s breach of contract claim
left in issue is whether TSA sustained damages as a result of Fishman Chemical’s
breach.
In its motion for summary judgment, TSA claims it suffered $996,997.00 in
“direct economic losses” as a result of Fishman Chemical’s breach of contract. Dkt.
No. 49 at 8. It identifies these losses as the sum of “fish loss expenses” totaling
$156,402.00 and “attendance revenue loss” totaling $840,595.00.” Id. For the
reasons explained below, the Court finds that material questions of fact exist as to
the existence and amount of these damages sufficient to preclude summary
judgment in TSA’s favor on its breach of contract claim.
Damages for breach of contract under Texas law
As a preliminary matter, the Court notes that TSA’s instant motion for
summary judgment appears to assume that Texas law governs the contract at issue
in this case. See Dkt. No. 49. As Fishman Chemical has not raised any contrary
arguments, this Court will apply Texas law in analyzing TSA’s breach of contract
claim. See Weber v. PACT XPP Technologies, AG, 811 F.3d 758, 771 (5th Cir. 2016)
(“Courts may be justified in pretermitting th[e] [choice-of-law] analysis when
neither party contends that any distinctive feature of the relevant substantive law
decides the dispute.”); see also Murthy v. Abbott Laboratories, 847 F.Supp.2d 958,
966-67 (S.D.Tex. 2012). Additionally, TSA has not made any argument to the Court
regarding whether its contract with Fishman Chemical is governed by the common
law or the Texas Uniform Commercial Code (“UCC”). The answer may be obvious,
but since in Texas “[t]he law of contract, whether under the common law or the
Uniform Commercial Code, generally authorizes damages for breach in the amount
of the expectancy interest of the wronged party,” the Court refrains from addressing
this issue here. Reynolds Metals Co. v. Westinghouse Elec. Corp., 758 F.2d 1073,
1079 (5th Cir. 1985).
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In Texas, “contract damages are defined by the plaintiff’s actual loss.” CQ,
Inc. v. TXU Mining Co., 565 F.3d 268, 278 (5th Cir. 2009) (citing to Abraxas Petrol.
Corp. v. Hornburg, 20 S.W.3d 741, 760 (Tex.App.–El Paso 2000)). This means that
“[a] nonbreaching party is generally entitled to all actual damages necessary to put
it in the same economic position in which it would have been had the contract not
been breached.” Id. Contract damages therefore generally include the benefits
expected under a contract, plus any losses caused by a breach of contract, minus the
costs saved by the injured party as a result of breach. See, e.g., Abraxas Petrol.
Corp., 20 S.W.3d at 760 (“To restore an injured party to the position he would have
been in had the contract been performed, it must be determined what additions to
the injured party's wealth have been prevented by the breach and what
subtractions from his wealth have been caused by it.”)
TSA’s claimed “fish loss expenses”
In support of its claim for $156,402.00 in “fish loss expenses” damages, TSA
cites to the affidavit of Jesse Gilbert, identified as TSA’s Vice-President and Chief
Operating Officer. Dkt. No. 49, Ex. 1 ¶ 3. In his affidavit, Gilbert states that “[t]he
total direct expenses suffered by TSA as a result of the fish loss made [sic] the basis
of this suit is $156,402.00.” Id. This affidavit refers to a “true and correct copy of
[Gilbert’s] report dated May 6, 2016” summarizing TSA’s “fish loss expenses,”
attached to the affidavit as “Exhibit 1.” Id. Yet no such report is attached to the
affidavit. Instead, “Exhibit 1” appears to consist of two undated spreadsheets, titled
“Attendance Information” and “Revenue Information,” respectively. Dkt. No. 49, Ex.
1-1. These spreadsheets do not mention fish loss at all, nor refer to the figure
$156,402.00. Id. TSA has failed to provide the Court with any ascertainable
evidence supporting its claim for $156,402.00 in “fish loss expenses.” Furthermore,
Gilbert has not explained whether the amount accounts only for the replacement
cost of the fish, or if it also includes expenses TSA incurred as a result of this loss
(e.g. relating to clean-up and disposal, forensic and chemical tests conducted, etc.)

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Again, “[i]n Texas, ‘the general rule for measuring damages for the breach of
a contract is just compensation for the loss or damage actually sustained.” BCC
Merchant Solutions, Inc. v. Jet Pay, LLC, 129 F.Supp.3d 400, 473 (N.D. Tex. 2015)
(citing Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex.1991)). TSA’s motion for
summary judgment simply does not cite to any evidence in the record supporting its
claim that it incurred “fish loss expenses,” as opposed to fish loss in general, let
alone in the amount of $156,402.00.
TSA’s claimed “attendance revenue loss”
In support of its claim for “$840,595.00” in “attendance revenue loss”
damages, TSA cites to the affidavit of Julio Flores, Jr., identified as TSA’s VicePresident of Finance and Administration and Chief Financial Officer. Dkt. No. 49,
Ex. 3 ¶ 2. In his affidavit, Flores states that “[a]s a direct result of TSA’s fish loss,
TSA suffered a net revenue attendance loss of $840,595.00.” Dkt. No. 49, Ex. 3 ¶ 3.
His affidavit refers to a “first supplemental report dated July 6, 2016, summarizing
the net revenue attendance loss TSA suffered as a result of the fish loss,” attached
to the affidavit as “Exhibit 1.” Id. It is unclear whether the documents actually
attached, a series of spreadsheets, are those Flores references, as none are dated
July 6, 2016. Dkt. No. 49, Ex. 3-1. The documents do appear to represent
calculations relating to “attendance loss” and “net revenue loss,” and specifically
reference a total “net revenue loss” of $840,595.00 Id. Yet nothing attached to
Flores’s affidavit sufficiently explains the significance of these figures. Id. For
instance, while the document attached to the affidavit labeled “Attendance
Information” appears to compare mean summer attendance figures at TSA from
2012-2013 with actual attendance in the summer of 2015, presumably as a way to
calculate lost attendance attributable to “fish loss,” no narrative within the
documents confirms this. Id. Additionally, this document and another labeled
“Revenue Information” are both undated. Id. Meanwhile, the remainder of the
documents attached to Flores’s affidavit, which seem to be TSA financial statements
documenting revenue and operating expenses from the summer of 2012, appear in
the record without any explanation whatsoever. Id.
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Even reading these documents in the most forgiving light would fail to satisfy
the Court that no dispute of material fact exists as to the “attendance revenue loss”
damages TSA claims. Although TSA does not identify them as such, it seems these
damages are meant to be a measure of TSA’s lost profits. Under Texas law, lost
profits damages are recoverable to redress a breach of contract so long as a party
supports its projection of lost profits with “proven facts.” Terrell v. Household Goods
Carriers’ Bureau, 494 F.2d 16, n. 12 (5th Cir. 1974); see also Great Pines Water Co.,
203 F.3d at 922 (“Opinions of estimated lost profits must, at a minimum, be based
on objective facts, figures, or data from which the amount of lost profits can be
ascertained.”). The test for the sufficiency of lost profits estimates is “reasonable
certainty.” Burkhart Grob Luft Und Raumfahrt GmbH & Co. KG v. E-Sys., Inc., 257
F.3d 461, 467 (5th Cir. 2001) (citing to Tex. Instruments, Inc. v. Teletron Energy
Mgmt., Inc., 877 S.W.2d 276, 279-80 (Tex. 1994)). That is, “[w]hile recovery of lost
profits does not require that the loss be susceptible to exact calculation, the amount
of the loss must be shown by competent evidence with reasonable certainty.” Great
Pines Water Co., Inc. v. Liqui-Box Corporation, 203 F.3d 920, 922 (5th Cir. 2000);
see also Atlas Copco Tools v. Air Power Tool & Hoist, 131 S.W.3d 203, 209
(Tex.App.–Fort Worth 2004).
As an initial matter, TSA claims the wrong measure of damages with respect
to any change in attendance it experienced in 2015. While TSA’s motion for
summary judgment includes references to “revenue loss,” a proper measure of
damages looks to lost net profits, not lost net revenues. Turner v. PV Int’l, 765
S.W.2d 455, 465 (Tex.App.–Dallas 1988, pet. denied) (“The measure of damages for
loss of profits as consequential damages… is net profits.”) “‘Net profits’ are defined
as ‘what remains in the conduct of business after deducting from its total receipts
all of the expenses incurred in carrying on the business.’” Id. TSA’s motion does not
address how its operating expenses or other costs relate, if at all, to the “net
revenue” figures it cites to the Court. Its claim for $840,595.00 in “attendance
revenue loss” damages is therefore improper, in that it does not identify a measure
of lost profits, as Texas law requires.
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Even if the Court could overlook this flaw, the information TSA presents to
support its claim for $840,595.00 does not constitute “competent evidence” showing
the amount of TSA’s lost profits with “reasonable certainty.” As noted, while TSA
has attached some figures and data to its motion, they are presented only
summarily, without context or justification. TSA does not explain to the Court, for
instance, why it chose the data sets it presents, or what their significance is relative
to its claim for $840,595.00 in “attendance revenue loss” damages. Specific
information about TSA’s methodology seems especially pertinent given that TSA
has, presumably accidentally, filed two separate estimates of its “attendance
revenue loss” damages with the Court. Its estimate of $840,595.00, attached to the
Flores affidavit, compares 2015 summer attendance figures at the aquarium with
average summer attendance from 2012-2015. Dkt. No. 49, Ex. 3-1. Its estimate of
$642,706.00, which appears attached to the Gilbert affidavit, compares 2015
summer attendance figures with average summer attendance from 2013-2015. Dkt.
No. 49, Ex. 1-1. Clearly, no matter what methodology TSA employs, the interval of
years it selects to calculate its average summer attendance against 2015 summer
attendance will affect the measure of damages it claims. At a minimum, however,
TSA must justify its methodological choices, especially since it appears to have
tested at least two different models for calculating “attendance revenue loss”
damages, which vary in their estimate of these damages by nearly $200,000.00.
Importantly, “[u]nder Texas law, damages are one of the essential elements
of a breach of contract action.” Versata Software, Inc. v. Internet Brands, Inc., No.
2:08–cv–313–WCB, 2012 WL 3075167 at *2 (E.D.Tex. 2012) (unpublished opinion).
Accordingly, “[a] breach of contract plaintiff who seeks nothing beyond economic
damages cannot receive a judgment based on breach alone.” Intercontinental Group
Partnership v. KB Home Lone Star L.P. 295 S.W.3d 650, 660 (Tex. 2009) Indeed, the
rule in Texas is that even “nominal damages are not available when the harm is
entirely economic and subject to proof.” MBM Financial Corp. v. Woodlands
Operating Co., L.P., 292 S.W.3d 660, 665 (Tex. 2009).

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For this reason, and based on the foregoing discussion of the insufficiency of
TSA’s evidence supporting the $996,997.00 in “direct economic losses” it seeks from
Fishman Chemical, the Court DENIES TSA’s Motion for Summary Judgment.
B. Default Judgment claim
In its Motion for Default Judgment, TSA states that pursuant to Federal Rule of
Civil Procedure 12, Asiamerica was required to file a responsive pleading or
otherwise defend the action against it. Dkt. No. 56 at 2. Asiamerica did file a
response to TSA’s third amended complaint adding Asiamerica as a defendant, but
in letter format and unrepresented by counsel. See Dkt. No. 38. TSA’s motion for
default argues that because this communication was not an “appropriate federal
court answer” and because Asiamerica has not appeared before the Court with
licensed counsel, Asiamerica has “failed to properly appear.” Dkt. No. 56 at 2. TSA
further states that Asiamerica is “not in the military service.” Dkt. No. 56 at 3. TSA
therefore requests a default judgment against Asiamerica under Federal Rule of
Civil Procedure 55(a). Id. TSA’s motion alleges it is entitled to relief against
Asiamerica

because

Asiamerica

“manufactured,

designed,

tested,

and/or

distributed” a chemical distributed to Fishman Chemical, which then became the
“producing and proximate cause of the death of fish and mammals owned and cared
by [sic] TSA.” Dkt. No. 56 at 3. TSA requests that the Court enter default judgment
against Asiamerica awarding economic damages and attorney fees totaling
$1,080,784.50, plus court costs and interest. Dkt. No. 56 at 4. TSA also requests the
opportunity to present evidence in support of its request for damages to the Court.
Dkt. No. 56 at 3.
TSA filed its motion for default judgment on September 6, 2016, fully two
weeks after the deadline for filing dispositive motions in this action passed. See Dkt.
No. 56. Additionally, in violation of Local Rule 5.5, TSA failed to serve notice of its
motion for default judgment on Asiamerica by certified mail. See Dkt. No. 56 at 5.
For these reasons, the Court declines to consider the merits of TSA’s motion for
default judgment and instead STRIKES the motion.
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IV. Conclusion
Based on the foregoing, the Court:


DENIES TSA’s Motion for Summary Judgment, Dkt. No. 49; and



STRIKES TSA’s Motion for Default Judgment, Dkt. No. 56.

The Court previously requested that the parties meet and confer, addressing,
if appropriate, whether the final pretrial conference set for 2:00pm on September
22, 2016 should proceed as scheduled. Dkt. No. 53. Because the Court does not find
good cause to reschedule the conference, it reminds the parties that this final
pretrial conference remains scheduled for 2:00pm on September 22, 2016. At this
time, the Court will be prepared to consider evidence addressing TSA’s claims for
damages, as TSA has requested. See Dkt. No. 56 at 3. The Court will also entertain
arguments from any party addressing whether, for good cause, it should extend its
lapsed deadline for filing dispositive motions, or otherwise amend its scheduling
orders in this action.

SIGNED this 13th day of September, 2016.
___________________________________
Hilda Tagle
Senior United States District Judge

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