Wedi Corp. v. Wright et al

Filing 345

MINUTE ORDER: wedi Corp.'s motion, docket no. 341 , for reconsideration of the Minute Order entered May 18, 2021, docket no. 340 , is DENIED. Authorized by Judge Thomas S. Zilly.(MW)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8
9
10

WEDI CORP.,
Plaintiff,
C15-671 TSZ

v.
BRIAN WRIGHT, et al.,

11

MINUTE ORDER

Defendants.

12

The following Minute Order is made by direction of the Court, the Honorable
13 Thomas S. Zilly, United States District Judge:
14
15
16
17
18
19
20
21
22

(1)
wedi Corp.’s motion, docket no. 341, for reconsideration of the Minute
Order entered May 18, 2021, docket no. 340, is DENIED. In reversing in minimal part
this Court’s grant of summary judgment against wedi Corp. (“wedi”) on its false
advertising claims, the United States Court of Appeals for the Ninth Circuit reasoned that
wedi’s “evidence” that the International Code Council - Evaluation Service (“ICC-ES”)
“did not request product samples . . . to test, but rather relied upon IAPMO’s tests”
created a material question of fact as to whether the statement “Hydro-Blok Products are
ICC-ES Tested and Certified” was false. See Mem. Dispo. at 4-5 (docket no. 335).
Nothing in the Ninth Circuit’s decision suggested that wedi should be permitted on
remand to engage in discovery that should have been completed before this Court ruled
on the dispositive motion that was the subject of appellate review. Moreover, wedi
makes no showing that discovery must be reopened for it to obtain the information it
wants. To the extent that wedi previously propounded discovery requests to defendants
regarding their financial information, defendants have a continuing obligation to update
their responses. See Fed. R. Civ. P. 26(e)(1). To the extent that wedi seeks explanations
from ICC-ES about its testing procedures, wedi makes no showing that formal discovery
is required. Indeed, Exhibit 2 to wedi’s counsel’s declaration, docket no. 342, indicates

23
MINUTE ORDER - 1

1 that the ICC-ES is willing to provide answers to questions informally via email. Given
the ICC-ES’s response, stating that it has “the right to take a sample off the production
2 line” or from “the store floor” for testing, Ex. 2 To Becka Decl. (docket no. 342), wedi
fails to demonstrate that further discovery from defendants would tend to prove one way
3 or the other whether ICC-ES tested the Hydro-Blok Products. Finally, wedi’s request for
an opportunity to identify additional expert witnesses constitutes an improper attempt to
4 circumvent the Court’s prior ruling that only experts properly “disclosed” on or before
November 13, 2018, will be permitted to testify at trial. See Minute Order at ¶¶ 1(a) &
5 (b) (docket no. 230).
6
7

(2)
record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 25th day of June, 2021.

8
William M. McCool
Clerk

9
10

s/Gail Glass
Deputy Clerk

11
12
13
14
15
16
17
18
19
20
21
22
23
MINUTE ORDER - 2