Mastaba Inc v. Lamb Weston Sales Inc et al

Filing 63

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT LAMB WESTONS MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING PLAINTIFF MASTABAS MOTION FOR PARTIAL SUMMARY JUDGMENT; AND GRANTING PLAINTIFF MASTABAS MOTION FOR RELIEF FROM LIMITATION ON DISCOVERY. La mb Westons Motion for Partial Summary Judgment ECF No. 32 is GRANTED IN PART and DENIED IN PART. Mastabas Motion for Partial Summary Judgment ECF No. 39 is GRANTED. Mastabas Motion from Limitation on Requests for Production ECF No. 37 is GRANTED. Signed by Senior Judge Edward F. Shea. (LLH, Courtroom Deputy)

1
2
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

5
6
7

MASTABA, INC, a Philippine
corporation,

CASE NO. CV-13-5049-EFS

8
Plaintiff,

9
v.

10
11
12
13
14
15
16

LAMB WESTON SALES, INC., a
Delaware corporation; LAMBWESTON, INC., a Delaware
corporation; CONAGRA FOODS,
INC., a Delaware corporation;
CONAGRA FOODS LAMB WESTON, INC.,
a Delaware corporation; MICHAEL
L. NEAL, individually and as to
his marital community, and
KENNETH SOH, individually and as
to his marital community,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT LAMB
WESTON’S MOTION FOR PARTIAL
SUMMARY JUDGMENT; GRANTING
PLAINTIFF MASTABA’S MOTION FOR
PARTIAL SUMMARY JUDGMENT; AND
GRANTING PLAINTIFF MASTABA’S
MOTION FOR RELIEF FROM LIMITATION
ON DISCOVERY

17
Defendants.
18
A hearing occurred in the above-captioned matter on May 13,

19
20

2014.

Plaintiff Mastaba, Inc. was represented by Kyle Silk-Eglit.

21

Gerald Kobluk appeared on behalf of Defendants Lamb West Sales, Inc.,

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Lamb-West, Inc., ConAgra Foods Lamb Weston, Inc., Michael Neal, and

23

Kennth Soh (collectively, “Lamb Weston”).

24

Weston’s Motion for Partial Summary Judgment, ECF No. 32.

25

the

26

Summary Judgment, ECF No. 39, and Mastaba’s Motion from Limitation on

Court

ORDER - 1

without

oral

argument

was

Before the Court was Lamb

Mastaba’s

Motion

Also before
for

Partial

1

Requests for Production, ECF No. 37.

2

relevant authority and listening to the arguments of counsel, the

3

Court was fully informed.

4

denies

5

Mastaba’s motion for summary judgment, and grants Mastaba’s Motion

6

from Limitation on Requests for Production.

in

part

and

After reviewing the record and

For reasons set forth below, the Court

grants

in

part

Lamb

Weston’s

motion,

grants

I. Factual Background1

7
Mastaba

8

handles

the

sale

of

frozen

potato

products

in

the

9

Philippines. Lamb Weston produces potato products for sale worldwide.

10

Between 1998 and 2012, Mastaba and Lamb Weston entered into letter

11

agreements, each with a one-year term, from January 1 to December 31

12

of each year.2

13

Mastaba’s sole supplier of potato products and paid Mastaba a fee per

14

net pound of French fry sales.

Under the one-year service agreements, Lamb Weston was

15
1

Undisputed facts are not cited to the record.

When considering

16
the summary judgment motions and drafting this background section,
17

the Court 1) took as true all undisputed facts; 2) viewed all

18

evidence and drew all justifiable inferences therefrom in nonmoving party’s favor; 3) did not weigh the evidence or assess

19
credibility;

and

4)

did

not

accept

assertions

made

that

were

20

flatly contradicted by the record.

21

372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

See Scott v. Harris, 550 U.S.

255 (1986).
22

2

The

parties

propose

different

descriptive

names

for

the

23

letter

24

agreement” while Mastaba a “Sales Representation Contract.”

agreement.

Lamb

Weston

refers

to

it

as

a

2011

“service
For

purposes of this order, it will be called a service agreement,
25
although the name has no effect on this Court’s analysis.
26

ORDER - 2

Beginning

1

in

2011,

Mastaba

and

Lamb

Weston

entered

into

2

discussions regarding their business relationship.

3

2011, Lamb Weston sent two employees to the Philippines, new Director

4

of

5

Kenneth Soh to meet with Mastaba.

6

meeting

7

investments, including a “test kitchen,” hiring of additional sales

8

staff, and creating a succession plan.

9

contends that Patrick Johnson, Mastaba’s General Manager, expressed

10

concern over the price of the test kitchen, and informed Lamb Weston

11

that in order to make such an investment, it would need a long-term

12

contract.

13

responded that Mastaba’s “long term position as Lamb Weston’s broker

14

is secure” and if Mastaba made the investments, he “would get Mastaba

15

a long term contract.”

Sales

and

Lamb

Businesses

Weston

Development

Michael

On February 18,

Neal

and

Sales

Agent

Mastaba alleges that at this

encouraged

Mastaba

to

commence

ECF No. 49 ¶ 10.

capital

Mastaba

Id. ¶ 17. According to Mr. Johnson’s declaration, Mr. Neal

Id. ¶ 19.

Mastaba proceeded to undertake the capital investments, building

16
17

a test kitchen over the course of 2011.

18

Lamb

19

construction.

20

in

21

professional looking kitchen.”

22

directed

23

florescent lights.

24

Soh the reason for the purchase of such an expensive model for a

25

fryer, and Mr. Soh replied because “it is a long term investment.”

26

ECF No. 49 ¶ 8. In addition to other specific requests, Lamb Weston

Weston

an

e-mail

ORDER - 3

oversaw

much

of

the

ECF No. 49 ¶¶ 22-30.
to

Mastaba

Mr.

to

Johnson,

buy

Id.

a

ECF No. 33 ¶ 8; ECF No. 42.

test

kitchen’s

planning

and

On February 28, 2011, Mr. Neal,

instructed

Mastaba

ECF No. 49, Ex. A.
commercial

50lb

fryer

to

“build

a

Mr. Neal then
and

daylight

In response, Mr. Johnson inquired from Mr.

1

requested Mastaba send weekly reports informing Lamb Weston of details

2

on the test kitchen’s progress. Id., Ex. F.

3

e-mail exchange relating to the test kitchen between Mr. Johnson and

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he to Mr. Neal and Mr. Howe writing, “not bad, he is working fast

5

now…”

Mr. Soh also forwarded an

Id.
In an e-mail written on June 5, 2011, Mr. Neal congratulated

6
7

Mastaba

on

its

good

work,

ending

with

“we

look

forward

to

your

8

continued support for the year of 2011/2012 & many more years…”

ECF

9

No. 49, Ex. P.

10

On September 7, 2011, as a result of the completion of the test

11

kitchen, Mr. Johnson sent Mr. Neal a letter regarding the long-term

12

contract as one for a term of five years.

13

49,

14

“accurately states the current state of affairs.”

15

However, Mr. Neal indicated to Mr. Johnson that he may not possess the

16

authority to enter into a 5-year agreement, stating “I do not know if

17

we can do a 5-year agreement?

18

its brokers/agents?”

19

the first time it had heard Mr. Neal lacked such authority.

20

49 ¶ 71.

Ex.

R.

Mr.

Neal

responded

in

ECF No. 51 ¶ 17; ECF No.

agreement,

saying

the

letter

ECF No. 49, Ex. S.

Don’t think ConAgra allows such with

ECF No. 49, Ex. S.

Mastaba contends this was
ECF No.

In November 2011, Lamb Weston offered three iterations of a

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22

limited term service agreement.

Mastaba contends these new agreements

23

had

Mastaba

24

agreements.

25

2.1% to 1% and deprived Mastaba of commission on post termination

26

sales.

less

favorable

Id.

ORDER - 4

terms

for

than

the

previous

service

Id. ¶ 56. The proposed agreements reduced commission from

One agreement would also have allowed termination without

1

cause after sixty days.

2

agreements would have made its business unprofitable.

3

9.

4

On

April

25,

2013,

ECF No. 49, Ex. T.

Mastaba

filed

this

Mastaba contends these
ECF No. 51 ¶

lawsuit.

It

asserts

5

claims of breach of contract, promissory estoppel, quantum meruit,

6

unjust enrichment, negligent misrepresentation, and fraud.

ECF No. 1.

7

Lamb Weston filed a motion for partial summary judgment, ECF No.

8

32, on March 10, 2014. Mastaba filed a motion for partial summary

9

judgment, ECF No. 49, on March 17, 2014, and a Motion from Limitation

10

on Requests for Production on March 12, 2014.
II.

11

Summary Judgment Standard

12

Summary judgment is appropriate if the record establishes "no

13

genuine dispute as to any material fact and the movant is entitled to

14

judgment as a matter of law.”

15

opposing summary judgment must point to specific facts establishing a

16

genuine dispute of material fact for trial.

17

477 U.S. 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio

18

Corp., 475 U.S. 574, 586-87 (1986).

19

make such a showing for any of the elements essential to its claim for

20

which it bears the burden of proof, the trial court should grant the

21

summary judgment motion.
III.

22

Fed. R. Civ. P. 56(a).

The party

Celotex Corp. v. Catrett,

If the non-moving party fails to

Celotex Corp., 477 U.S. at 322.

Lamb Weston’s Motion for Summary Judgment

23

Lamb Weston requests partial summary judgment for dismissal of

24

Mastaba’s claims for damages related to a) an unwritten long-term

25

contract, b) future sales or services beyond 2011 service agreement,

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ORDER - 5

1

and c) Mastaba’s 2011 operating expenses and capital investments.

2

No. 32.

3

A.

Damages Relating to Unwritten Long-Term Contract
At

4

ECF

the

heart

of

Lamb

Weston’s

motion

for

partial

summary

5

judgment is whether there is sufficient evidence that Lamb Weston

6

informed Mastaba it would enter into a long-term contract in exchange

7

for

8

investments.

9

during this discussion.

Mastaba

building

a

test

kitchen

and

making

other

capital

Mastaba’s claims rely on occurrence of this commitment
ECF No. 1.

Lamb Weston requests summary

10

judgment on any damages relating to this discussion, asserting there

11

is no evidence of any such promise or agreement being made and that

12

any discussions were merely mutual expressions of an expectation of a

13

long-term business relationship.
In addition to Mr. Johnson’s declaration detailing multiple oral

14

of

a

promise,3

the

existence

of

such

a

promise

or

15

conversations

16

agreement is supported by e-mails between Mastaba and Lamb Weston.

17

For example, e-mails from Mr. Soh and Mr. Neal indicate that Lamb

18

Weston took a hands-on approach to the test kitchen’s development,

19

directing Mastaba to take specific actions for its construction and

20

providing consistent input over meticulous details. ECF No. 49, Ex. A-

21

F. Further, Mastaba spent a year’s worth of gross revenue to construct

22

the test kitchen. ECF No. 48 ¶ 9. Mastaba’s performance based on the

23
24

3

Lamb Weston argues that this evidence is inadmissible hearsay.
However,

this

statement

qualifies

25
admission.
26

ORDER - 6

Fed. R. Evid. 801(d)(2).

as

a

statement

of

party

1

alleged discussions is evidence of such an agreement, as is Lamb

2

Weston’s awareness and approval that such a significant investment was

3

being made.

4

The Court now turns to Lamb Weston’s affirmative defenses and

5

Mastaba’s claims relating to the promise or agreement for a long-term

6

contract which will be analyzed separately.

7

1.

8

Lamb Weston contends that enforcement of the promise for a long-

9

Statute of Frauds

term contract would violate the statute of frauds.

10

The statute of frauds is governed by RCW 19.36.010:

11

In the following cases, specified in this section, any
agreement, contract, and promise shall be void, unless such
agreement, contract, or promise, or some note or memorandum
thereof, be in writing, and signed by the party to be
charged therewith, or by some person thereunto by him or
her lawfully authorized, that is to say: (1) Every
agreement that by its terms is not to be performed in one
year from the making thereof.

12
13
14
15

RCW 19.36.010
16
The Washington Supreme Court addressed similar facts in Klinke
17
v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255 (1980).

Klinke

18
brought action against Famous for breach of an oral contract that
19
Famous would register and issue a franchise agreement to Klinke.

Id.

20
at 257. Famous raised the statute of frauds as a defense. Id. at 258.
21
Klinke countered by pleading promissory estoppel. Id. The Washington
22
Supreme Court ruled, “a party who promises, implicitly or explicitly,
23
to make a memorandum of a contract in order to satisfy the statute of
24
frauds, and then breaks that promise, is estopped to interpose the
25
statute as a defense to the enforcement of the contract by another who
26

ORDER - 7

1

relied on it to his detriment.”

2

85 Wn.2d 602 (1975)).

3

Id. (citing In re Estate of Nelson,

(E.D. Wash. 2013).

See also BKWSpokane v. FDIC, 12-CV—521-TOR

4

As discussed, there is a genuine issue of material fact as to

5

whether Lamb Weston broke an oral contract or promise to enter into a

6

five-year written contract.

7

Mastaba, Lamb Weston would be estopped from asserting the statute of

8

frauds as a defense to the oral contract under Klinke.

9

indicated by the parties’ prior dealings, such a contract would have
entered

into

within

If that question is resolved in favor of

the

year,

which

would

Further, as

10

been

have

fulfilled

11

performance of the parties’ alleged agreement within the year. ECF No.

12

40, Exs. F-I.

13

this regard.

14

2.

15

Mastaba asserts a claim for promissory estoppel on the basis of

Lamb Weston’s motion for summary judgment is denied in

Promissory Estoppel

16

the alleged promise for a long-term contract.

17

summary judgment in its favor on this claim.

18

To

obtain

recovery

in

promissory

Lamb Weston seeks

estoppel,

Mastaba

must

19

establish “(1) a promise which (2) the promisor should reasonably

20

expect to cause the promisee to change his position and (3) which does

21

cause the promisee to change his position (4) justifiably relying upon

22

the promise, in such a manner that (5) injustice can be avoided only

23

by enforcement of the promise.” Corbit v. J. I. Case Co., 70 Wn.2d

24

522, 538 (1967) (citation omitted).

25

intention to act or refrain from acting in a specified way, so made as

26

ORDER - 8

A promise is “a manifestation of

1

to justify a promisee in understanding that a commitment has been

2

made.” Havens v. C & D Plastics, 124 Wn.2d 158, 172 (1994).
Lamb

3

Weston

argues

that

its

alleged

statements

do

not

4

constitute a clear and defined promise sufficient for a promissory

5

estoppel claim, but were merely confirming the expectation of a long-

6

term, mutually satisfactory relationship.

7

cites to Havens v. C & D Plastics, 124 Wn.2d 158 (1994).

8

fired

9

alleging that the employer made a number of statements that amounted

10

to a promise that the plaintiff could only be fired for just cause.

11

Id. The Washington Supreme Court found no promise on the basis that

12

the statements were typical of those made in the job application and

13

hiring process.

14

situations naturally want a “long term relationship” of employment.

15

Id.

16

employee

brought

suit

Id. at 174.

on

a

claim

In support, Lamb Weston

of

In Havens, a

promissory

estoppel,

The court reasoned that parties in such

Lamb Weston’s reliance on Havens is misplaced.

The Washington

17

Supreme Court specifically qualified, “where the terminable at will

18

doctrine is concerned, the promise for promissory estoppel must be a

19

‘clear and definite promise.’” Id. (emphasis added).

20

not involve an employment relationship.

21

relating to construction of a test kitchen is not a “typical” exchange

22

between business associates; rather, it was specific to each party’s

23

unique circumstances and required significant detriment on behalf of

24

Mastaba equaling a year’s worth of Mastaba’s revenue.

This matter does

Further, the interaction

ECF No. 48 ¶ 9.

25

Mastaba in turn cites to Hellbaum v. Burwell & Morford, 1 Wn.

26

App. 694 (1969). In Hellbaum, the Washington appeals court held “the

ORDER - 9

1

doctrine of promissory estoppel has been applied to render enforceable

2

a gratuitous or somewhat indefinite promise to obtain insurance.”

Id.

3

This Court accepts that, if proven, a promise for a long-term

4

contract in exchange for specific capital investments is definitive

5

enough to support a promissory estoppel claim.

6

contends that but for this promise, the capital investments would not

7

have been undertaken,

8

justifiable on account of the respective parties’ long-term business

9

relationship

and

Lamb

Further, if as Mastaba

ECF No. 49 ¶¶ 8-20, then this reliance could be

Weston’s

oversight

of

the

construction

and

10

planning of the test kitchen. ECF No. 49 Exs. A-F.

11

there is a factual dispute as to each of the first four elements of a

12

promissory estoppel claim as well as the fifth and final element:

13

whether injustice can be avoided without enforcing the promise.

14

Weston’s motion for summary judgment is denied in this regard.
3.

15

The Court finds

Lamb

Mastaba’s Claim for Fraud Pursuant to Promise of Long-Term
Contract4

16

Mastaba additionally seeks damages for fraud on the basis that

17
18

Lamb

19

Mastaba that it would be its long-term sales representative.

knowingly

communicated

false,

material

information

to

To recover for fraud, the following elements must be proved by

20
21

Weston

clear, cogent, and convincing evidence:

22
23
24

4

Although Mastaba’s arguments for fraud are primarily addressed in
this section, they may also be relevant to Lamb Weston’s defense

25
under the Independent Duty Doctrine in Section B.
26

ORDER - 10

(1) a representation of an existing fact; (2) its
materiality; (3) its falsity; (4) the speaker's knowledge
of its falsity or ignorance of its truth; (5) his intent
that it should be acted on by the person to whom it is
made; (6) ignorance of its falsity on the part of the
person to whom it is made; (7) the latter's reliance on the
truth of the representation; (8) his right to rely upon it;
[and] (9) his consequent damage.

1
2
3
4
5

Markov v. ABC Transfer & Storage Co., 76 Wn.2d 388, 394 (1969).
6
Lamb Weston cites to Shook v. Scott, 56 Wn.2d 351 (1960), to
7
support

its

argument

that

the

alleged

assurance

of

a

long-term

8
relationship

was

not

a

representation

prediction.

ECF No. 32.

of

existing

fact

but

a

9
In Shook, the Washington Supreme Court

10
stated that predictions, without an express or implied undertaking to
11
make

them

come

true,

do

not

constitute

such

representations

or

12
promises as will support actionable fraud.

76 Wn.2d at 362-63.

13
The Washington Supreme Court in Markov stated two theories in
14
which the rule that mere predictions do not necessarily constitute
15
representations is inapplicable.

Markov, 76 Wn.2d at 396.

The first,

16
“if

a

promise

is

made

for

the

purpose

of

deceiving

and

with

no

17
intention to perform, it constitutes such fraud as will support an
18
action for deceit.”

Id.

Additionally, “if the promise is made

19
without care or concern whether it will be kept, and the promisor
20
knows or under the circumstances should know that the promisee will be
21
induced to act or refrain from acting to his detriment, the promise
22
will likewise support an action by the promisee.”

Id.

23
Disputed evidence indicates that Lamb Weston was seeking direct
24
solicitation with Philippine purchasers while simultaneously directing
25
26

ORDER - 11

1

and overseeing Mastaba’s construction of the test kitchen.5 Further,

2

despite Mr. Neal informing Mastaba he would “look into” a five-year

3

contract, Mr. Neal did not ask for a long-term agreement from another

4

Lamb Weston employee, but only a standard broker agreement. ECF No. 51

5

¶ 17; & ECF No. 51 Ex. X.

6

Alternatively, evidence additionally supports that Mr. Neal made

7

a promise that induced Mastaba to take actions to Mastaba’s detriment

8

without care for whether it was kept.

9

promise

of

a

long-term

contract,

Mr.

Despite Mr. Neal’s alleged
Neal

may

not

have

had

the

10

authority to enter into such a contract. ECF No. 51 ¶ 1 & ECF No. 49 ¶

11

55.

12

Mr. Neal revealed this lack of authority.

13

Neal had worked closely with Mastaba on the construction of the test

14

kitchen.

Mr. Johnson contends that it wasn’t until September 9, 2011, that
Id.

This was after Mr.

Id.

15

Thus, this Court finds sufficient evidence to present a genuine

16

issue of material fact as to whether Lamb Weston committed fraud.

17

Accordingly, Lamb Weston’s motion for summary judgment is denied in

18

this regard.

19
20
21

5

During long-term contract negotiations, Mr. Neal wrote in an email to Mastaba “our intent is to directly service accounts that

22
request it but we can deal with this on an annual basis each year
23

as we work to renew for the upcoming year.”

24

Mastaba additionally alleges Lamb Weston had engaged directly with

ECF No. 51, Ex. W.

Philippine purchaser “PTC” to avoid paying commission to Mastaba.
25
ECF No. 51 ¶ 13.
26

ORDER - 12

1

4.

Obligation to Negotiate in Good Faith

2

Lamb Weston contends that Mastaba’s assertion of an alleged oral

3

promise that Lamb Weston would “enter into a written, long-term sales

4

representation contract,” even if assumed for arguendo purposes, is an

5

agreement to agree which is unenforceable in Washington.

6

Both Mastaba and Lamb Weston cite heavily to Keystone Land &

7

Development v. Xerox Corp. 152 Wn.2d 171 (2004), in support of their

8

positions.

In Keystone, the Washington Supreme Court distinguished

9

between

unenforceable

an

to

agree

and

an

enforceable

10

contract to negotiate.

11

formed,

12

contractual obligation to negotiate further agreements in good faith.”

13

Id. at 174. Forming a contract to negotiate requires mutual assent to

14

be bound with sufficiently definite terms supported by consideration.

15

Id. at 178.

16

for the fact finder.

Washington

Id.

agreement

courts

In the latter, “when a contract has been
have

recognized

that

there

can

be

a

Mutual assent to be bound is typically a question of fact
Id.

17

As discussed, whether the parties had reached the required terms

18

to form a contract to negotiate in good faith remains a question of

19

fact.

20

to arrange for this long-term contract would constitute a breach to

21

negotiate the further terms in good faith.

22

X.

23

contract to negotiate in good faith as a matter of law is denied.

24

///

25

//

26

/

Moreover, the evidence that indicates Mr. Neal never attempted

ECF No. 51 ¶ 17-20 & Ex.

Lamb Weston’s motion to dismiss Mastaba’s claim for a breach of a

ORDER - 13

1

B.

Mastaba’s

Claims

Relating

to

its

2011

Expenses

and

Capital

2

Investments and Future Sales or Services Beyond 2011 Service

3

Agreement

4

Lamb Weston argues that summary judgment dismissal of Mastaba’s

5

claims for damages relating to its 2011 capital investments and future

6

sales

7

expressly controls the disputes. First, Lamb Weston argues that the

8

2011 agreement terminated by its own terms on December 31, 2011, which

9

precludes any damages for future sales.6

or

services

is

proper

because

the

2011

service

agreement

Next, Lamb Weston points to

10

the following portions of the 2011 service agreement which it contends

11

explicitly resolve Mastaba’s claims for damages relating to capital

12

investments and operating expenses:
[Mastaba] shall also be responsible and liable for any and
all expenses incurred by [Mastaba] while performing the
Services.
Extraordinary expenses (such as sales shows,
meetings outside the Philippines and customers’ factory
visits) that are pre-approved by me in writing and in
advance will be reimbursed by LW.

13
14
15
16

ECF No. 1, Ex. A.
17
[t]his Agreement represents the entire agreement between LW
and [Mastaba] and also supersedes all prior negotiations,
representations or agreements, either written or oral.

18
19
Id.
20
21
22
6

23

The 2011 service agreement states in pertinent part, “effective as of
January

24
25

1,

2011,

and

shall

terminate

on

December

31,

2011

unless

extended by a written agreement signed by both parties at least ninety
(90) days before the termination.” ECF No. 1, Ex. A.

26

ORDER - 14

However, Mastaba argues it has claims that would warrant damages

1
2

arising independently of this 2011 service agreement that create a

3

question of fact.

4

parties created a separate implied in fact contract to which the 2011

5

service agreement’s terms would be inapplicable.

6

1.

7

Mastaba

Further, Mastaba alleges that dealings between the

Negligent Misrepresentation Independent of Contract
makes

a

claim

for

negligent

misrepresentation

8

independent of the 2011 service agreement relating to damages incurred

9

from its capital investments. ECF No. 1 ¶¶ 90-93. Lamb Weston seeks

10

dismissal of this claim on the basis of the independent duty doctrine.

11

The independent duty doctrine was formerly called the “economic

12

loss rule.” Elcon Const., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 165

13

(2012).

14

where a contractual relationship exists and the losses are economic

15

losses. If the economic loss rule applies, the party will be held to

16

contract remedies, regardless of how the plaintiff characterizes the

17

claims.” Alejandre v. Bull, 159 Wn.2d 674, 683 (2007). The Washington

18

Supreme

19

“misnomer”

and

20

doctrine.”

Jackowski

21

present test is “whether the injury is traceable also to a breach of a

22

tort

23

Eastwood v. Horse Harbor, 170 Wn.2d at 380, 393 (2010).

This rule barred “recovery for alleged breach of tort duties

Court

law

duty

has
has

of

recently
adopted
v.

care

pronounced
in

its

Borchelt,

arising

the

stead

174

economic
the

Wn.2d

rule

“independent

720,

independently

loss

729

of

the

(2012).

a

duty
The

contract.”

24

The Washington Supreme Court stated “in Eastwood we directed

25

lower courts not to apply the [independent duty] doctrine to [bar]

26

tort

remedies

ORDER - 15

‘unless

and

until

this

court

has,

based

upon

1

considerations of common sense, justice, policy and precedent, decided

2

otherwise.’” Elcon Const., Inc., 174 Wn.2d at 157, (quoting Eastwood,

3

170

4

Engineers, Inc., 179 Wn.2d 84, 95 (2013) (Washington Supreme Court

5

held a “duty to avoid misrepresentations that induce a party to enter

6

into a contract arises independently of the contract.”).

Wn.2d

at

417).

See

also

Donatelli

v.

D.R.

Strong

Consulting

7

Based on the foregoing authority, this Court finds Mastaba’s

8

claim of a duty not to engage in negligent misrepresentation arises

9

independently of the 2011 service agreement.

The prior discussion

10

relating to fraud also applies here to the extent that a claim for

11

fraud may arise independent of a contract.

12

Industries, Inc., 127 Wn. App. 13 (2005) (holding that a plaintiff is

13

able to base a claim on negligent misrepresentation when a promise is

14

made with no intention of performing).

See Flower v. T.R.A.

15

Although Lamb Weston did not address the merits of Mastaba’s

16

negligent misrepresentation claim in its initial motion for summary

17

judgment, Mastaba contends that Lamb Weston has liability because Mr.

18

Neal

19

engagement with Mastaba.

20

summary

21

misrepresentation is denied.

lacked

the

judgment

authority

to

commit

Lamb

ECF No. 44.

dismissal

of

Weston

to

a

long

term

Lamb Weston’s motion for

Mastaba’s

claim

for

negligent

22

2.

23

Mastaba seeks damages on claims of quantum meruit and unjust

24

enrichment. While Washington courts historically used quantum meruit

25

and unjust enrichment synonymously, the Washington Supreme Court has

26

recently clarified that they are legally distinct, with “distinct

ORDER - 16

Mastaba’s Quantum Meruit and Unjust Enrichment Claims

1

approaches founded on discrete legal theories.”

2

Wn.2d 477, 483 (2008).

3

purposes of this motion.

4

a.

Young v. Young, 164

These claims will be addressed separately for

Unjust Enrichment

5

Mastaba claims it is entitled to unjust enrichment because it

6

conferred a benefit to Lamb Weston by 1) negotiating sales and sales

7

contracts on its behalf, and 2) establishing the Philippine frozen

8

potato market which Lamb Weston took advantage of by engaging in

9

direct sales to Philippine purchasers.

ECF No.1 ¶¶ 83-85.

10

Unjust enrichment is the method of recovery for the value of the

11

benefit retained absent any contractual relationship because notions

12

of fairness and justice require it.

13

elements that must be proven by the plaintiff are 1) the defendant

14

receives a benefit, 2) the received benefit is at the plaintiff’s

15

expense, and 3) the circumstances make it unjust for the defendant to

16

retain the benefit without payment.

17

Lamb

Weston

contends

that

Young, 164 Wn.2d at 484. The

Id.

unjust

enrichment

does

not

apply

18

because the 2011 service agreement covers the dispute. Specifically,

19

Mastaba was to provide “certain services during the term of this

20

Agreement

21

forecasting and order coordination in the Philippines, as reasonably

22

requested and defined by [Lamb Weston].”

23

provisions existed in the one-year service agreements between Lamb

24

Weston and Mastaba from 1998-2010.

25
26

in

Because

the

field

Mastaba

and

of

frozen

Lamb

potato

sales

and

marketing,

ECF No. 1, Ex. A.

Similar

ECF No. 34, Ex. 1A-1M.
Weston

were

in

a

contractual

relationship relating to Mastaba selling Lamb Weston potato products

ORDER - 17

1

in the Philippines from 1998-2011, Mastaba may not make an unjust

2

enrichment claim relating to “establishing the potato market.”

3

Chandler v. Wash. Toll Bridge Auth., 17 Wn.2d 591, 604 (1943) (finding

4

no contract implied in law because it related to an expressed contract

5

plaintiff was operating under when performing services to which he

6

based

7

necessarily done pursuant to Mastaba’s service agreements with Lamb

8

Weston for which Mastaba received payment.

9

have

unjust

an

enrichment

unjust

claim).

enrichment

claim

Establishing

for

the

See

market

was

Finally, Mastaba does not

“negotiating

sales

and

sales

10

contracts” due to this Court’s decision holding Lamb Weston liable to

11

pay commission for sales negotiated under the 2011 service agreement.

12

Accordingly,

13

requesting dismissal of Mastaba’s unjust enrichment claims is granted.

Lamb

b.

14

Weston’s

motion

for

partial

summary

judgment

Quantum Meruit

15

Mastaba requests quantum meruit because Lamb Weston requested

16

Mastaba make capital investments, Mastaba expected payment or exchange

17

of

18

investments.7

19

claim.

value

in

return,

and

Lamb

Weston

failed

to

pay

for

said

Lamb Weston seeks summary judgment in its favor on this

20
21
22
23

7

Mastaba

makes

an

25

quantum

meruit

claim

on

the

basis

of

negotiating sales and sales contracts on Lamb-Weston’s behalf for which
it failed to make

24

additional

payment. ECF No.

1 ¶¶ 73-77. This claim is not

considered in light of this Court’s decision holding Lamb Weston liable
for payment of commission relating to sales made pursuant to the 2011
service agreement.

26

ORDER - 18

1

Quantum meruit is the method of recovering the reasonable value

2

of services provided under a contract implied in fact. Young, 164

3

Wn.2d at 485.

4

defendant requests work, 2) the plaintiff expects payment for the

5

work, and 3) the defendant knows or should know the plaintiff expects

6

payment for the work.
Lamb

7

The elements of an implied in fact contract are 1) the

Weston

which

Id. at 486.

contends

cannot

be

the

2011

negated

by

service
a

agreement

contract

covers

implied

in

the

8

dispute

fact.

9

However, “the conduct of one or more parties to an express contract

10

may be such that performance is removed from the confines of the

11

express contract.” Pierce County v. State, 144 Wn. App. 783, 830

12

(2008). See also Modern Builders, Inc. of Tacoma v. Manke, 27 Wn. App.

13

86 (1980) (allowing quantum meruit claim when parties’ conduct was

14

removed from express contract).
The 2011 service agreement has no mention of a test kitchen.

15
16

ECF No. 1, Ex. A.

17

such a significant investment in its years of prior dealings.

18

51.

19

relating to Mastaba’s services being within its “sole control and

20

discretion,” ECF No. 1, Ex. A, Lamb Weston was heavily involved in the

21

process

22

kitchen.

23

Lamb Weston detailing Lamb Weston’s directions on what to order, and

24

requesting weekly updates).

25
26

Mastaba alleges Lamb Weston never before requested
ECF No.

Further, despite the provision in the 2011 service agreement

of

overseeing

and

directing

the

construction

of

the

test

ECF No. 49, Exs. A-F (e-mail exchanges between Mastaba and

There

is

sufficient

evidence

that

the

parties

deviated

from

their 2011 service agreement in the construction of the test kitchen,

ORDER - 19

1

creating a factual dispute as to whether an implied in fact contract

2

existed. See Kilthau v. Covelli, 17 Wn. App. 460, (1977) (holding that

3

an existence of an implied contract is a question for the trier of

4

fact).

5

meruit claims is denied in this regard.

6

C.

Lamb

Weston’s

request

for

dismissal

of

Mastaba’s

quantum

Conclusion
In light of the foregoing analysis, Lamb Weston’s motion for

7
8

partial summary judgment is denied in part and granted in part.

9

are

genuine

issues

of

fact

relating

to

whether

Lamb

There

Weston

gave

10

assurances that a long-term contract would be given to Mastaba in

11

exchange for capital investments.

12

agreement would support damages arising from claims for breach of

13

contract, promissory estoppel, and fraud.

14

The existence of this promise or

Further, Mastaba has established a genuine issue of fact as to

15

whether

the

parties

16

allegedly requesting and then overseeing the construction of a test

17

kitchen, which creates a question of fact for a quantum meruit claim.

18

However, Mastaba’s unjust enrichment claim seeks recovery based on

19

establishing the potato market, which is not distinct from Mastaba’s

20

duties under applicable contracts, and is therefore dismissed as a

21

matter of law.
IV.

22
23

Mastaba

from

the

2011

service

agreement

by

Mastaba’s Motion for Summary Judgment

requests
amounts

partial
owed

summary

under

the

judgment
2011

on

service

the

issue

agreement.

of

24

liability

25

parties disagree as to the particular sales for which Lamb Weston must

26

pay fees to Mastaba under this agremeent.

ORDER - 20

for

deviated

The

1
2

A.

Background
The

2011

6

Services: [Mastaba] will perform services during the
term of this Agreement in the field of frozen potato sales
and marketing, forecasting and order coordination in the
Philippines, as reasonably requested and defined by myself,
or my designee (“Services”).
Fees:
As full payment for the performance of
[Mastaba’s] Services and the other agreements made herein,
[Lamb Weston] will pay Mastaba a fee equal to 2.1%, per net
pound of ALL non-McDonald’s LW French fry sales delivered
to the Philippines, upon receipt of invoice. For example,
the fee will be paid to [Mastaba] for sales to Jollibee,
Leysam, Multi M, or other distributers developed by
Mastaba.

13

The

2011

from

sales fees. The applicable portions of the 2011 service agreement are:

12

2011.

were

5

11

31,

dates

agreement did not specifically address payment of post-termination

10

December

term

4

9

through

effective

January

8

2011,

agreement’s

3

7

1,

service

service

ECF No. 40, Ex. A.

14

Mastaba, on behalf of Lamb Weston, negotiated sales contracts

15

with IFFSI, QSR, and Jollibee foods in 2011 for the sale of Lamb

16

Weston frozen potato products.

17

October 6, 2011, for the sale of Lamb Weston products from November 1,

18

2011, through December 31, 2012.

19

this period were made pursuant to the contract.

A contract was entered with IFFSI on

All sales by Lamb-Weston to IFFSI in

20

Mastaba, on behalf of Lamb Weston, negotiated a sales contract

21

on October 11, 2011, for sale of Lamb Weston frozen potato products to

22

QSR from November 1, 2011, through October 31, 2012.

23

2012, Lamb Weston made sales pursuant to the QSR contract in excess of

24

$3,281,8320.80.

In 2011 and

25

Lamb Weston paid Mastaba for a limited number of sales made

26

pursuant to the QSR and IFFSI contracts that were ordered in 2011 and

ORDER - 21

1

2012 and delivered to the Philippines in early 2012.

Lamb Weston has

2

not paid Mastaba for all other sales made pursuant to these contracts

3

that were ordered and delivered in 2012.
The Jollibee contract was executed in December 2011 and covered

4
5

all

6

contract in excess of $3,613,116.

7

limited number of sales made pursuant to the Jollibee sales contract

8

that were ordered in 2011 and 2012 and delivered in 2012.

9

has not paid for all other sales pursuant to this sales contract that

10

sales

in

2012,

and

Lamb

Weston

made

sales

pursuant

to

this

Lamb Weston paid Mastaba for a

Lamb Weston

were ordered and delivered in 2012.

11

Mastaba negotiated a sale of Lamb Weston “mini crisscut French

12

fries” to Jollibee to be shipped in 2012. Lamb Weston completed sale

13

and shipment as provided by Mastaba’s negotiation, but has not paid

14

fees to Mastaba.

15 B.

Authority and Analysis

16

Mastaba argues that it is entitled to commission for the sales

17

made through the contracts it negotiated under the procuring cause of

18

sale doctrine.

19

“Under the procuring cause of sale doctrine, when a party is

20

employed to procure a purchaser and does procure a purchaser to whom a

21

sale

22

regardless of who makes the sale.”

23

Estate LLC v. Young, 163 Wn. App. 800, 809 (2011) (citations omitted).

24

Because the 2011 service agreement does not explicitly cover fees for

25

post-termination sales made pursuant to the 2011 service agreement,

26

ECF No. 1, Ex. A, a discussion of the procuring cause doctrine is

is

eventually

ORDER - 22

made,

that

party

is

entitled

to

a

commission

Washington Professional Real

1

warranted.

See Poggi v. Tool Research & Eng’g Corp., 75 Wn.2d 356

2

(1969) (applying procuring cause doctrine to post-termination sales

3

because contract for commission of sales did not specify that the

4

remittances need be received prior to termination).
Lamb Weston first argues that the procuring cause doctrine is

5
6

inapplicable

because

Mastaba

was

not

its

broker,

but

instead

was

7

contracted for services as requested.

8

defines a broker as “one who is engaged for others, on a commission,

9

to negotiate contracts relative to property with the custody of which

The Washington Supreme Court

10

he has no concern.”

Gile v. Tsutakawa, 109 Wn. 366, 375 (1920).

11

succinctly put, “a broker is a middle man between parties.”

12

More

v. Kirkpatrick, 142 Wn. 630, 634 (1927).

Chambers

In Lamb Weston’s “brokerage documents” attached to Mr. Johnson’s

13
14

declaration, Mastaba is listed as “Broker 240.”

See ECF No. 40, Exs.

15

F-I.

16

Mastaba is additionally described as a “broker” in an e-mail exchange

17

between

18

Mastaba’s role is indicative of a broker relationship, as it acted as

19

the “middle man” between Philippine buyers and Lamb Weston, in which

20

it negotiated the sales contracts.

21

conclusively indicate Mastaba operated under a “broker” arrangement

22

for Lamb Weston.

In ECF No. 54 ¶ 22, Mr. Neal describes Mastaba as its “broker.”

Lamb

Weston

employees.

ECF

No.

50,

Ex.

C.

Finally,

ECF Nos. 21 & 39.

The facts

23

Lamb Weston next argues that even if Mastaba was its broker,

24

Mastaba was not the procuring cause of the sales at issue because

25

Mastaba

26

procuring cause of a sale if it sets in motion a series of events

had

ORDER - 23

a

limited

negotiation-based

role.

“A

broker

is

a

1

culminating in the sale and, in doing so, accomplishes what the broker

2

undertook under the agreement.”

3

Young, 163 Wn. App. 800, 810 (2011).

Wash. Prof'l Real Estate LLC v.

4

Lamb Weston has admitted that its 2012 sales contracts with

5

IFFSI, QSR, and Jollibee were entered into pursuant to negotiations

6

with Mastaba acting at Lamb Weston’s direction. ECF No. 21 ¶¶ 38, 42,

7

& 46.

8

agreement expired runs counter to its argument that the end of the

9

2011 term ends a requirement to pay Mastaba fees.

Lamb Weston’s payment of fees to Mastaba after the 2011 service

Mastaba arranged

10

for the sales and should not be precluded from the fees pursuant to

11

the 2011 service agreement merely because the delivery took place in

12

2012.

13

2012 sales made pursuant to the three at issue contracts, in addition

14

to the sale of “crisscut fries” to Jollibee in 2011 separate from the

15

Jollibee

16

pursuant to the 2011 service agreement for these sells.

Thus, Mastaba as a matter of law was the procuring cause of the

contract.

Mastaba

is

entitled

to

the

applicable

fees

17

Mastaba’s motion for partial summary judgment that Lamb Weston

18

is liable for amounts owed under their 2011 brokerage contract is

19

granted.
V. Mastaba’s Motion for Relief from Limitation on Requests For

20
21

Production

22

On October 15, 2013, this Court issued a Scheduling Order that

23

“Requests for Production shall be limited to 30 requests, including

24

subsections.”

25

filed

this

26

ORDER - 24

ECF No. 26 (emphasis added). On March 12, 2014, Mastaba

motion

for

requested

relief

from

the

order

limiting

1

Requests for Productions (RFPs) to allow it an additional seven RFPs.

2

ECF No. 37.

3

A.

Factual Background
On October 11, 2013, Mastaba issued a first set of RFPs on Lamb

4
5

Weston.

The

6

accounting, and other related documents” concerning “Lamb Weston’s

7

failure to pay commission.” ECF No. 37 at 3.

8

did not address document production related to “issue 2.”

9

2”

regards

first

the
claims

set

existence
of

contained

of

fraud,

a

45

RFPs

long-term

negligent

seeking

“shipping,

Mastaba claims this set

business

Id.

“Issue

contract

misrepresentation,

and

10

Mastaba’s

quantum

11

meruit, promissory estoppel, and breach of a unilateral contract.

12

Id.

13

because the existence of a long-term contract is a distinct claim from

14

the breach of contract claim addressed in the first set and it was not

15

aware a limitation would be placed.

Mastaba asserts that it did not include these in the first set

Id.

16

Mastaba claims that RFPs 45-50 address issues of material fact

17

since the RFPs “seek disclosure of documents related to Lamb Weston’s

18

misrepresentations and assurances that Mastaba’s long-term position

19

was secure and that Lamb Weston would provide a long term contract.”

20

ECF No. 37.

21

damages relating to Lamb Weston’s sales volume in the Philippines

22

after Mastaba’s brokerage agreement was terminated.

Mastaba additionally contends that RFPs 51 and 52 concern

As is set forth below, Lamb Weston requests a denial for the

23
24

additional RFPs.

25

//

26

/

ORDER - 25

1

B.

Lamb Weston contends that the additional RFPs 46-50 would be

2
3

repetitive and are unnecessary. RFPs 46-50 read as follows:
RFP 46:
Provide all documents that refer or relate
to the construction of the Test Kitchen by Mastaba.
RFP 47:
Provide all documents that refer or relate
to Lamb Weston’s entry into a long term business
relationship with Mastaba.
RFP 48:
Provide all documents that refer or relate
to Defendants’ efforts to negotiate a multi-year contract
with Mastaba beginning on or about January 1, 2012.
RFP 49:
Provide all documents that refer or relate
to the February 18, 2011, meeting between Kenneth Soh,
Michael Neal and Patrick Johnson.
RFP 50:
Provide all documents that refer or relate
to Lamb Weston’s desire that Mastaba increase its business
investments in 2011, including but not limited to any
documents received or reviewed by Kenneth Soh or Michael
Neal prior to their meeting with Patrick Johnson on
February 18, 2011.

4
5
6
7
8
9
10
11
12
13

RFPs 46-50

ECF No. 37
Federal Rule of Civil Procedure 34 allows a party to request

14
15

documents “within the scope of Rule 26(b).”

16

the

17

relevant to any party’s claim or defense.”

18

However, courts maintain broad discretion to limit discovery, even

19

when the materials are within the scope of Rule 26(b). Fed. R. Civ. P.

20

26(c).

21

balancing of plaintiff's need for the information and the possible

22

prejudice

23

Corp., 389 F.Supp. 1348, 1351 (D. Haw. 1975).

scope

of

To

to

discovery

determine

to

be

whether

defendant

if

“any

nonprivileged

discovery

discovery

Rule 26(b)(1) outlines

is

matter

that

is

Fed. R. Civ. P. 26(b)(1).

is

appropriate

allowed.

requires

Vollert

v.

a

Summa

24

While Mastaba clearly outlines why it needs the information, ECF

25

No. 37 at 4, Lamb Weston did not explain why the information sought is

26

burdensome.

ORDER - 26

ECF No. 44.

As the Advisory Committee Notes to the 2006

1

Amendment to Rule 26 point out, “the responding party must show that

2

the identified sources of information are not reasonably accessible

3

because of undue burden or cost.” Fed R. Civ. P. 26 Advisory Notes

4

(2006). Further, Lamb Weston states that it is already performing

5

another search relating to additional documents that pertain to the

6

RFPs 46-50 request, which is indicative of a low burden.

7

at 2.

ECF No. 44

8

Considering the complex nature of Mastaba’s claims, the multiple

9

annual service agreements spanning over years, and various third-party

10

client business transactions in dispute, a large set of RFPs appears

11

reasonable.

12

documents

13

reasonable

14

Mastaba’s requested additional RFPs 46-50 are granted.

15

C.

16

Moreover, separating the specific 2011 disputes from the
that
due

relate
to

the

to

long-term

distinct

nature

business
of

the

relationships
claims

involved.

RFPs 51 and 52
Mastaba contends the RFPs 51 and 52 seek to address material

17

facts relating to damages.

18

follows:

19



20
21
22
23
24

is



ECF No. 37 at 5.

The RFPs read as

RFP 51: Provide all accounting documents that evidence
Lamb Weston’s total sales volume of frozen potato
products
in
the
Philippines
(excluding
sales
to
McDonald’s) from January 1, 2012, through March 12,
2014.
RFP 52: Provide all documents that Lamb Weston has
relied upon or will rely upon in projecting its future
sales
volume
of
frozen
potato
products
in
the
Philippines.

ECF No. 37 at 5.

25
26

ORDER - 27

1

Lamb

Weston

not

viable

Mastaba’s
as

a

RFPs

matter

51

of

and

law

52

relate

because

none

to

claims

3

Mastaba’s theories allow Mastaba to enforce against Lamb Weston an

4

unwritten long-term contract, as laid out in Lamb Weston’s motion for

5

summary judgment. Given the foregoing decision denying Lamb Weston’s

6

partial motion for summary judgment relating to an unwritten long-term

7

contract, Mastaba’s requested additional RFPs 51 and 52 are granted.

9

are

that

2

8

that

argues

of

It does not appear from the facts that Mastaba has acted in bad
faith or that it is abusing the discovery process in any way.

Mastaba

10

has shown that the information sought is critical to the issues in

11

contention.

12

burdensome,

13

requests.

14

granted.

Lamb
nor

has

Weston
it

has

not

purported

shown
that

that

the

the

RFPs

RFPs

are

would

overly

be

broad

Mastaba’s motion for relief from limitation on discovery is

VI.

15

CONCLUSION

16

For the above-given reasons, IT IS HEREBY ORDERED:

17

1.

Lamb Weston’s Motion for Partial Summary Judgment, ECF No.

18

32, is GRANTED IN PART and DENIED IN PART as follows:

19



20

Lamb Weston’s request for dismissal of damages relating
to an unwritten long-term contract is DENIED.



21

Lamb Weston’s request for dismissal of all Mastaba’s

22

claims for damages under a theory of unjust enrichment

23

is

24

relating to future sales or services is DENIED.

25
26

ORDER - 28

GRANTED.

Dismissal

of

Mastaba’s

other

claims



1

Lamb Weston’s request for dismissal of Mastaba’s claims

2

for

3

investments is DENIED.

4

2.

damages

for

2011

operating

expenses

and

capital

Mastaba’s Motion for Partial Summary Judgment, ECF No. 39,

5

is GRANTED.

6



Lamb-Weston, Inc., ConAgra Foods, Inc., ConAgra Foods

7

Lamb

8

(collectively, “Lamb-Weston”) are liable to Mastaba in

9

the amount of 2.1% per net pound for all sales made

Weston,

Inc.,

and

Lamb-Weston

Sales,

Inc.

10

pursuant

11

International Family Foods Services, Inc. on or about

12

October 6, 2011.

13



to

the

contract

Lamb-Weston

signed

with

Lamb-Weston is liable to Mastaba in the amount of 2.1%

14

per

15

contract Lamb-Weston signed with QSR/Express Commissary,

16

Inc. on or about October 11, 2011.

17



18

net

contract

20

pound

for

all

sales

made

pursuant

to

the

Lamb-Weston is liable to Mastaba in the amount of 2.1%
per

19

net

pound

for

all

Lamb-Weston

sales
signed

made
with

pursuant
Jollibee

to

the

Foods

Corporation on or about December 13, 2011.

21



Lamb-Weston is liable to Mastaba in the amount of 2.1%

22
per net pound for all sales of Mini Crisscut French
23
fries

to

Jollibee

Foods

24
Mastaba’s negotiation.
25
26

ORDER - 29

Corporation

as

provided

by

1

3.

Mastaba’s

Motion

from

Limitation

on

Requests

for

2

Production, ECF No. 37, is GRANTED.

3

relief from the limitation on requests for production as

4

stated in the Scheduling Order (ECF No. 26 ¶ 5(b)), and is

5

permitted to propound the seven requests for production in

6

the form attached as Exhibit B to the Declaration of Kyle

7

J. Silk-Eglit, ECF No. 38, in Support of Plaintiff Mastaba

8

Inc.’s Motion for Relief from Limitation on Requests for

9

Production.

10
11
12

IT IS SO ORDERED.

Mastaba is granted

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

27th

day of May 2014.

13
s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26

Q:\EFS\Civil\2013\5049.cross.msjs.lc1.docx

ORDER - 30