Innovative Solutions International Inc v. Houlihan Trading Co Inc et al

Filing 311

AMENDED PRETRIAL ORDER. Signed by U.S. District Judge John C. Coughenour. (KRA)

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THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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9

INNOVATIVE SOLUTIONS
10 INTERNATIONAL, INC., a Washington
corporation,
11
Plaintiff,
12
v.
13
HOULIHAN TRADING CO., INC., a
14 Florida corporation; BRIGHTON GROUP,
LLC, an Arkansas limited liability company;
15 MARCUS TECHNOLOGIES LLC, a Texas
limited liability company; SHUMAKER
16 INTERNATIONAL CORP., a Tennessee
corporation; COOK INTERNATIONAL
17 TRADE & BROKERAGE, INC., a Florida
corporation; NORTH SOUTH FOODS
18 GRP., INC., a Florida corporation;
HENLEY’S WHOLESALE MEATS, INC.,
19 an Arkansas corporation; PILGRIM’S
PRIDE CORP., a Delaware corporation; and
20 DOES 1–10,
21

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25
26

AMENDED PRETRIAL ORDER
[PROPOSED]

Defendants.

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Case No. 2:22-cv-00296-JCC

I.

INTRODUCTION

This pretrial order is as proposed by the parties, with applicable rulings provided by the
Court following stated issues and objections. The Court admonishes Pilgrim’s counsel for its
relentless and seemingly overzealous advocacy throughout the course of pretrial proceedings on
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1 what would appear to be minor issues (or even nonissues) not worthy of this Court’s time.
2 Accordingly, the Court will consider such conduct as well as subsequent conduct in ruling on
3 potentially applicable treble damages under RCW 19.86.090.
II.

4

JURISDICTION

5

Jurisdiction is vested in this Court by virtue of:

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The Court has diversity jurisdiction over this matter under 28 U.S.C. § 1332(a). The

7 amount in controversy exceeds $75,000.00. Plaintiff Innovative Solutions International, Inc.
8 (“Innovative”) is a Washington corporation with its principal place of business in the State of
9 Washington. Defendant Houlihan Trading Co. (“Houlihan”) is a Florida Corporation with its
10 principal place of business in Ellisville, Missouri. Defendant Pilgrim’s Pride Corp. (“Pilgrim’s”)
11 is a Delaware corporation with its principal place of business in Greeley, Colorado.
III.

12
13 A.

Innovative’s Claims

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1.

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CLAIMS AND DEFENSES

Against Pilgrim’s

Innovative will pursue at trial the following claims against Pilgrim’s:
1.

Breach of Express Warranty;

2.

Breach of Implied Warranties of Fitness for a Particular Purpose and

Merchantability;
3.

Negligent Misrepresentation for Affirmative Misstatements and Failure to

Disclose;
4.

Negligence; and

5.

Violation of Washington’s Consumer Protection Act, Ch. 19.86 RCW (“CPA”).

The elements of some of these claims have been determined on summary judgment. (Dkt. No. 247)
(“Summary Judgment Order”).
Pilgrim’s Response: Pilgrim’s denies Innovative’s claims. Pilgrim’s reserves the right to
further petition the Court to reconsider any elements decided by the Court in its Summary
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1 Judgment Order (Dkt. No. 247) once the Court has the benefit of hearing the evidence at trial to
2 the ensure the Court has adequate opportunity to correct any error prior to this matter being
3 submitted to the jury.
4

Pilgrim’s objects to Innovative pursuing a claim for the Breach of Implied Warranty of

5 Merchantability against Pilgrim’s as it was not pleaded. Innovative cannot circumvent the
6 consequences of a failure to plead a claim by adding new claims based on additional facts through
7 the submission of a pretrial order containing them.
8

Pilgrim’s objects to Innovative pursuing a claim for Negligent Misrepresentation based on

9 an alleged Failure to Disclose as it was not pleaded.

Innovative cannot circumvent the

10 consequences of a failure to plead a claim by adding new claims based on additional facts through
11 the submission of a pretrial order containing them.
12

Innovative Response: Pilgrim’s was on notice of Innovative’s claims as Innovative

13 properly pleaded “a short and plain statement of the claim showing that the pleader is entitled to
14 relief.” Fed. R. Civ. P. 8(a)(2). Merchantability is merely one of the bases for an implied warranty
15 claim and failure to disclose is merely one of the bases for a negligent misrepresentation claim.
16 Innovative’s Third Amended Complaint asserts both an implied warranty claim and a negligent
17 misrepresentation claim. Merchantability and failure to disclose turn on the same evidence as
18 fitness for a particular purpose and affirmative misstatements, respectively. Pilgrim’s will
19 therefore suffer no prejudice. To the extent the Court believes the two bases to which Pilgrim’s
20 objects are outside the scope of the pleadings, Innovative will either move to amend the pleadings
21 before trial pursuant to Fed. R. Civ. P. 15(a)(2) or move to amend the pleadings to conform to the
22 evidence during trial pursuant to Fed. R. Civ. P. 15(b)(1).
23

Court’s Ruling: Pilgrim’s objection is OVERRULED. Innovative has sufficiently pled

24 causes of action for breach of implied warranty and negligent misrepresentation. Furthermore, with
25 respect to Innovative’s breach of implied warranty claim, Innovative raised “merchantability” as
26 a basis in its motion for summary judgment. (See Dkt. No. 153 at 29.) Pilgrim’s objection with
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1 respect to breach of implied warranty of merchantability is therefore waived. Finally, with respect
2 to Innovative’s negligent misrepresentation based on a failure to disclose claim, the Court FINDS
3 that Pilgrim’s will suffer no prejudice from its addition, particularly where it turns on the same
4 evidence as that of affirmative misstatements. See Fed. R. Civ. P. 15(b)(1).
5 B.

Houlihan’s Cross Claims Against Pilgrim’s

6

Houlihan will pursue the following cross claims against Pilgrim’s:

7

1.

Breach of Express Warranty;

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2.

Negligent Misrepresentation;

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3.

Negligence;

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4.

Violation of Washington’s Consumer Protection Act (Chapter 19.86 RCW); and

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5.

Equitable Indemnity/ Equitable Subrogation.

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Pilgrim’s denies Houlihan’s claims. Pilgrim’s objects to Houlihan pursuing a claim for

13 equitable subrogation as it was not pleaded, and as Innovative is still pursuing its claims against
14 Pilgrim’s, Houlihan has not fully satisfied any alleged obligation of Pilgrim’s, making equitable
15 subrogation inapplicable. Houlihan is also not entitled to equitable indemnity or equitable
16 subrogation as its settlement with Innovative only purports to settle its own proportionate share of
17 the fault thereby entitling it to nothing from Pilgrim’s.
18

Pilgrim’s further objects to the application of Washington state law to Houlihan’s claims.

19 “A state must have a significant contact or significant aggregation of contacts to the claims asserted
20 creating state interests, in order to ensure that the choice of [that state’s] law is not arbitrary or
21 unfair.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-22 (1985) (quoting Allstate Ins. Co.
22 v. Hague, 449 U.S. 302, 312-13 (1981)) (emphasis added) (same)). Like George Cameron, et al.,
23 infra, such contacts are lacking and the extraterritorial application of Washington’s Consumer
24 Protection Act is not permitted in this case where, like George Cameron, an out-of-state Plaintiff
25 has sued an out-of-state Defendant under the CPA. See George Cameron and Janin Camaeron,
26 Country Mut. Ins. Co. claimants, & all others similarly situated throughout Washington State &
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1 the United States of Am., Plaintiffs, v. Country Mut. Ins. Co., an insurance company; Country
2 Financial, an insurance conglomerate; Country Cas. Ins. Co., an insurance company; Country
3 Preferred Ins. Co., an insurance company; Country Investor Life Assurance Co., an insurance
4 company; & Country Life Ins. Co., an insurance company, Defendants., No. 1:24-CV-030755 MKD, 2024 WL 4557671, at *7–8 (E.D. Wash. Oct. 23, 2024) (prohibiting the extraterritorial
6 application of Washington’s CPA by out-of-state plaintiffs as to an out-of-state defendant)). This
7 interpretation also comports with the precedent of the Washington Supreme Court which has only
8 permitted claims by out-of-state plaintiffs against in-state defendants or defendants with an in-state
9 agents but has not permitted application of the CPA by an out-of-state plaintiffs to out-of-state
10 defendants. Thornell v. Seattle Serv. Bureau, Inc., 184 Wash.2d 793 (2015); see also Trader Joe’s
11 Co. v. Hallatt, 835 F.3d 960, 977 (9th Cir. 2016) (same). For similar reasons, Houlihan’s claims
12 do not satisfy the necessary elements to state a claim under the CPA, as Pilgrim’s alleged conduct
13 has not occurred within “trade or commerce” as defined under the statute nor does it impact the
14 public interest as required by the statute.
15

Due to the constitutional limitations placed on the extraterritorial application of state law,

16 Washington state law also should not be applied to the remainder of Houlihan’s claims. To the
17 extent a true conflict exists between Washington state law and Missouri state law, Missouri law
18 should be applied to Houlihan’s remaining claims.
19

Court’s Ruling:

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21

i. Pilgrim’s Choice of law argument
The Court will continue to apply Washington law to Houlihan’s crossclaims. From when

22 Houlihan first asserted its crossclaims against Pilgrim’s in July 2022 until now (less than a month
23 before trial), Houlihan and Pilgrim’s have both been litigating Houlihan’s crossclaims under
24 Washington state law. (See, e.g., Dkt. Nos. 26, 94, 162) (litigating Houlihan’s crossclaims against
25 Pilgrim’s without any objection to application of Washington state law). Moreover, in litigating
26 summary judgment, Pilgrim’s neglected to raise any choice of law objections. (See generally Dkt.
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1 Nos. 162, 184, 186, 192) (Pilgrim’s summary judgment papers). In turn, the Court has also already
2 applied Washington state law to dispose of certain elements of Houlihan’s crossclaims. (See Dkt.
3 No. 247 at 6–7, 10) (applying Washington state law where Houlihan joined Innovative on its
4 motion for summary judgment against Pilgrim’s with respect to the breach of express warranty
5 and negligent misrepresentation claims). Now, after the summary judgment stage has already
6 passed, Pilgrim’s is raising choice of law concerns for the first time. (See Dkt. No. 290 at 3–5.)
7 Pilgrim’s has therefore waived this argument. See Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d
8 1488, 1497 (9th Cir. 1986) (noting that choice of law arguments are waived unless timely raised);
9 see also Myer v. Ford Motor Company, 2008 WL 11339632, slip op. at 2 (D. Ariz. 2008) (finding
10 waiver of choice of law argument where dispositive motion cutoff had passed, district court had
11 already entered ruling on motion for partial summary judgment, and party raised choice of law
12 issue for the first time only two months before trial was set to proceed).
13

Pilgrim’s maintains it has not waived the choice of law argument. (See Dkt. No. 300 at 5–

14 6.) In support, it notes that the cases where the Ninth Circuit has found waiver also just so happen
15 to be only cases where the parties are raising the choice of law issue for the first time on appeal;
16 as such, Pilgrim’s has not waived the issue because it is raising it prior to any appeal. (See id.) The
17 Court declines to adopt such a bright-line rule. Instead, the Court looks to how far along the parties
18 are in the litigation and whether present circumstances support a finding of waiver. See, e.g., Gen.
19 Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1505 (9th Cir. 1995) (choice of
20 law argument not waived where the motion on choice of law came before summary judgment); de
21 Mexico v. Orient Fisheries, Inc., 2009 WL 10669948, slip op. at 6 (C.D. Cal. 2009) (choice of law
22 argument not waived where it arose early in the litigation at the motion to dismiss stage); EB
23 Holdings II, Inc. v. Illinois Nat’l Ins. Co., 108 F.4th 1211, 1219 (9th Cir. 2024) (choice of law
24 argument not waived where party raised the question prior to and through the summary judgment
25 stage). To that end, the Court concludes that Ninth Circuit case law does not preclude it from
26 finding waiver where the choice of law issue is raised for the first time very late in the litigation
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1 and, in particular, after the summary judgment stage. Pilgrim’s has therefore waived the choice of
2 law argument, and the Court will continue to apply Washington state law to Houlihan’s
3 crossclaims.
4
5

ii. Pilgrim’s Washington law argument
Courts have held that CPA claims cannot survive unless there is “a significant contact or

6 significant aggregation of contacts” between Washington state and the CPA claim. Cameron v.
7 Country Mutual Ins. Co., 2024 WL 4557671, slip op. at 7 (W.D. Wash. 2024) (citing Phillips
8 Petroleum Co. v. Shutts, 472 U.S. 797, 821–22 (1985)). To that end, Washington courts will
9 typically look to the domicile of the alleged parties to determine whether significant contact exists.
10 See id.; see also Thornell v. Seattle Service Bureau, Inc., 363 P.3d 587, 590–92 (Wash. 2015). If
11 both parties are out-of-state citizens, and the underlying transactions do not involve one of the
12 parties’ in-state agent, then the alleged CPA claim lacks sufficient contact with Washington, and
13 the party asserting the claim fails to state a claim upon which relief can be granted. See id. (finding
14 that out-of-state class members failed to state a legally cognizable CPA claim where none of the
15 out-of-state class claims involved a Washington defendant or its in-state agents). Accordingly, in
16 assessing the viability of Houlihan’s CPA crossclaim, the Court looks only to the domicile of and
17 conduct between Houlihan and Pilgrim’s, as past Washington courts appear to do. See id.; see also
18 Thornell, 363 P.3d at 590–92.
19

Houlihan’s CPA claim lacks any connection to Washington state. To be sure, Houlihan’s

20 CPA claim is related to Innovative’s CPA claim—that is, it arises out of a supply chain dispute
21 over a defined series of business transactions for a specific and tangible chicken Product, which
22 ultimately landed in Washington state. (See Dkt. No. 26 at 5; see also Dkt. No. 83 at 5, 8–10)
23 (explaining relationship between Innovative, Houlihan, and Pilgrim’s in supply chain). The Court
24 further acknowledges that the CPA’s vague construction does not appear to preclude an out-of25 state party’s claim against an out-of-state defendant. See RCW 19.86.020 (merely stating that
26 “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any
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1 trade or commerce are hereby declared unlawful”). Nevertheless, as noted, Washington courts
2 routinely check as a threshold matter whether the underlying CPA claim has any “contact” with
3 the state. And Houlihan and Pilgrim’s are both out-of-state parties. None of their business
4 transactions were conducted in Washington. In fact, the only contact between Houlihan’s CPA
5 claim and Washington state is that Houlihan ultimately sold the Product to Innovative, a
6 Washington citizen. 1 Accordingly, the Court DISMISSES Houlihan’s CPA claim. See Omar v.
7 Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Wong v. Bell, 642 F.2d 359,
8 361–62 (trial court may dismiss a claim sua sponte and without notice to the party where the party
9 “cannot possibly win relief under the statute they have urged”).
10 C.

Pilgrim’s Affirmative Defenses

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1.

Pilgrim’s will pursue the following affirmative defenses against Innovative’s claims:

12

1.

13

Innovative accepted the 584 Chicken pursuant to RCW 62A.2-606-607.
Innovative Objection: Pilgrim’s is seeking to relitigate issues this Court has

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already decided. The Summary Judgment Order determined that there was no basis

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for a jury to conclude that Innovative failed to timely notify Houlihan, the entity

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which sold product directly to Innovative, of its rejection of the goods. (Dkt. No.

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247 at 18-20.) There are no facts that would change this determination as to

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Pilgrim’s.

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Pilgrim’s Response: The Court made no ruling affecting Pilgrim’s affirmative

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defense. Innovative contends it ordered a fresh product labeled as NAE Brst Trim,

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for domestic use. It received a frozen product labeled Chicken Breast Pieces with

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Rib Meat and further labeled “For Export Only.” The Court’s decision was based

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on Houlihan’s failure to submit sufficient evidence as to Houlihan’s affirmative

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25

Against Innovative’s Claims

1

And, to the extent there is a public policy justification for bringing a CPA claim against
Pilgrim’s,
the Court notes that such concerns are already accounted for in Innovative’s CPA
26 claim.
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defense, and does not foreclose Pilgrim’s from presenting its own evidence in

2

support of its own affirmative defense at trial.

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Court’s

4

misconstrues the Court’s summary judgment order (Dkt. No. 247). The Court

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denied summary judgment on Houlihan’s acceptance defense and granted summary

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judgment to Innovative on its breach of implied warranty claim against Houlihan,

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not against Pilgrim’s. (See Dkt. No. 247 at 18–20.) Pilgrim’s may still pursue an

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acceptance defense.

9

2.

Ruling:

Innovative’s

objection

is

OVERRULED.

Innovative

Fraud, deceit and/or misrepresentation by another party/non-party over whom

10 Pilgrim’s had no control.
11

3.

Innovative did not provide proper notice of breach and/or non-conforming goods

12 to the required persons and/or entities.
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Innovative Objection: Pilgrim’s is seeking to relitigate issues this Court has

14

already decided. The Summary Judgment Order determined that there was no basis

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for a jury to conclude that Innovative failed to timely notify Houlihan, the entity

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which sold product directly to Innovative, of its rejection of the goods. (Dkt. No.

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247 at 18-20.) There are no facts that would change this determination as to

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Pilgrim’s.

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Pilgrim’s Response: The Court made no ruling affecting Pilgrim’s affirmative

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defense. Innovative contends it ordered a fresh product labeled as NAE Brst Trim,

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for domestic use. It received a frozen product labeled Chicken Breast Pieces with

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Rib Meat and further labeled “For Export Only.” The Court’s decision was based

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on Houlihan’s failure to submit sufficient evidence as to whether or not Innovative

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timely notified Houlihan, and does not foreclose Pilgrim’s from presenting and

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providing its own evidence in support of its affirmative defense at trial.

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Court’s Ruling: Innovative’s objection is OVERRULED. As noted, the Court’s

2

summary judgment ruling on this issue applied purely to Innovative’s claim against

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Houlihan, not against Pilgrim’s. (See Dkt. No. 247 at 20.) Pilgrim’s may still pursue

4

failure to provide timely notice as a defense.

5

4.

Unclean hands.

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5.

Mitigation of damages.

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6.

Innovative’s damages were caused by Innovative and/or other co-defendants and/or

8 non-parties over whom Pilgrim’s had no control.
9

7.

Contributory and/or comparative negligence.

10

8.

Apportionment of fault.

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Innovative Objection: Apportionment is legally appropriate only for claims

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arising out of allegedly negligent conduct, and, as a matter of law, is not appropriate

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for claims in which the alleged wrongful acts of the defendant(s) were intentional.

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Pilgrim’s Response:

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conduct and alleged breaches of warranties and/or contracts. All of these claims

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allow for and require apportionment of fault, particularly where the evidence will

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show Innovative’s negligence was a clear cause of its own damages and

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Innovative’s damages theory is premised on a complete failure and/or inability of

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Innovative to mitigate its damages.

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Court’s Ruling: Innovative’s objection is OVERRULED as it is pursing claims of

21

negligence and negligent misrepresentation.

22

9.

Plaintiff has presented claims arising out of negligent

Innovative’s claims relating to the 584 Chicken label are preempted by federal law

23 based on the USDA determining that Pilgrim’s complied with all applicable federal laws,
24 regulations, and guidelines. See Doc. 247 at 3-5; see also Cohen v. ConAgra Brands, Inc., 16 F.4th
25 1283, 1288 (9th Cir. 2021).
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Innovative Objection: Pilgrim’s is seeking to relitigate issues this Court has

2

already decided. “Preemption is ‘a question of law . . . .’” MetroPCS California,

3

LLC v. Picker, 970 F.3d 1106, 1117 (9th Cir. 2020) (quoting Toumajian v. Frailey,

4

135 F.3d 648, 652 (9th Cir. 1998)). The Summary Judgment Order and Order on

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Motions in Limine (Dkt. No. 281) (“MIL Order”) made the following rulings:

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a. Instances where preemption applies: The Summary Judgment Order ruled

7

that “express preemption is limited to the representations on the ‘chicken

8

584’ label.” (Dkt. No. 247 at 4–5) Likewise, the Order stated that, in

9

instances where the label was transmitted outside the normal manner (e.g.,

10

via email), there was no preemption. (Dkt. No. 247 at 6 n.11.) Accordingly,

11

the label contained on the package, and transmitted only on the package,

12

does not provide the basis for a Pilgrim’s representation.

13

b. Instances where preemption does not apply: The Summary Judgment Order

14

ruled that any representations other than the label simply affixed to the

15

package (e.g., product fact sheet, specification sheet, emailed label, etc.) are

16

not preempted. (Dkt. No. 247 at 4–5.) Moreover, the MIL Order ruled that

17

the “for export only” language on the label may be relevant to certain

18

Pilgrim’s defenses. (Dkt. No. 281 at 5)

19

c. No preemption references should be made to the jury: In the MIL Order, the

20

Court stated it “…agrees with Innovative that any references to preemption

21

would confuse and mislead the jury, particularly since it is a legal issue that

22

has already been adjudicated. (See Dkt. No. 247 at 5.) The Court therefore

23

GRANTS Innovative’s first motion in limine.” (Dkt. No. 281 at 2.) The

24

Court added that “…any reference to USDA determinations as they relate

25

to the FSIS pre-approved label would certainly (1) confuse the issues as to

26

what is and is not allegedly misrepresented, and (2) mislead the jury as to
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what evidence it can and cannot consider. The Court therefore GRANTS

2

Innovative’s second motion in limine.” Id. at 1-2.

3

The Court’s Summary Judgment Order and MIL Order have already resolved the

4

parameters of the preemption issue and there is no basis for affirmative defenses.

5

Pilgrim’s Response: Pilgrim’s reserves the right to further petition the Court to

6

reconsider any elements decided by the Court in its Summary Judgment Order (Dkt.

7

No. 250) once the Court has the benefit of hearing the evidence at trial to the ensure

8

the Court has adequate opportunity to correct any error prior to this matter being

9

submitted to the jury. As to the MIL Order, a motion in limine is generally a

10

tentative, interlocutory, precautionary ruling reflecting the anticipatory treatment

11

of a specific evidentiary issue and are subject to reconsideration throughout the trial

12

based on the evidence submitted.

13

Court’s Ruling: Innovative’s objection is SUSTAINED. Any misrepresentation

14

claim based on the FSIS-approved label, whether transmitted via e-mail or

15

otherwise, is preempted. Moreover, to the extent the Court’s summary judgment

16

ruling regarding preemption implied that an e-mailed photo of the label has “no

17

preemptive effect,” the Court finds that such an implication was in clear error and

18

departs from it. See U.S. v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (“A court

19

may have discretion to depart from the law of the case where . . . the first decision

20

was clearly erroneous . . .”). Indeed, as the Court clearly noted elsewhere in its

21

Order, the relevant statute defines a label as a “written, printed, or graphic matter

22

upon any article . . . or accompanying such article.” 21 U.S.C. § 453(s); (see also

23

Dkt. No. 247 at 4). In turn, a picture of the label (as affixed to the Product) that

24

Houlihan e-mailed to Innovative in the course of a business transaction, (see Dkt.

25

No. 247 at 6 n. 11), is no different from a physical copy of the label itself. Moreover,

26
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the e-mailed photo “accompanied” the Product. See 21 U.S.C. § 453(s). It is

2

therefore preempted and cannot form the basis of any misrepresentation claims.

3

10.

Innovative is precluded from pursuing a private action against Pilgrim’s based upon

4 alleged violations of the Poultry Products Inspection Act (“PPIA”), because Congress has not
5 authorized a private right of action under the PPIA.
6

Innovative Objection: Innovative objects on the same grounds as stated in its

7

objection to Pilgrim’s affirmative defense nine, and incorporates that objection

8

here. Further, Innovative disputes that it is asserting any private right of action

9

under the PPIA. (See Dkt. No. 247 at 3-5.) Innovative is no longer pursuing a

10

theory of per se CPA liability under the PPIA.

11

Court’s Ruling: Innovative’s objection is SUSTAINED. This defense is moot as

12

Innovative is no longer pursing a private action under the PPIA.

13

11.

The United States Department of Agriculture’s determination that Pilgrim’s

14 properly labeled the poultry at issue serves at prima facie evidence that Pilgrim’s has not breached
15 any express or implied warranty.
16

Innovative Objection: Innovative objects on the same grounds as stated in its

17

objection to Pilgrim’s affirmative defense nine, and incorporates that objection

18

here. Further, Innovative disputes that it is asserting any private right of action

19

under the PPIA. (See Dkt. No. 247 at 3-5.) Innovative is no longer pursuing a

20

theory of per se CPA liability under the PPIA. Finally, the Court has ruled in its

21

MIL Order that references to the USDA’s/FSIS’s determinations as they relate to

22

the label are excluded. (Dkt. No. 281 at 3-4.)

23

Pilgrim’s Response: Pilgrim’s reserves the right to raise evidence with respect to

24

the product at issue as warranted by the evidence at trial. A motion in limine is

25

generally a tentative, interlocutory, precautionary ruling reflecting the anticipatory

26
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1

treatment of a specific evidentiary issue and are subject to reconsideration

2

throughout the trial based on the evidence submitted.

3

Court’s Ruling: Innovative’s objection is SUSTAINED. As noted in the Court’s

4

advance ruling on motions in limine, the parties may not reference the

5

USDA’s/FSIS’s determinations with respect to the label. (See Dkt. No. 281 at 2–

6

4.) Such references are wholly irrelevant and may confuse the jury given the

7

Court’s preemption ruling.

8

12.

Innovative knew or should have known the 584 Chicken it ordered contained bones;

9 Innovative is precluded from recovery by the doctrine of assumption of the risk.
10

Innovative Objection: Innovative objects to this affirmative defense as it is not an

11

actual defense, but rather an element of Innovative’s or other parties’ claims.

12

Pilgrim’s Response: The denial of a summary judgment motion is not akin to a

13

finding that the issue is no longer in the case. Pilgrim’s will present evidence as to

14

the “export only” label as well as other evidence to support this affirmative defense.

15

This is a question for the jury.

16

Court’s Ruling: Innovative’s objection is OVERRULED.

17

13.

Innovative lacked privity with Pilgrim’s.

18

Innovative Objection: To the extent privity could be an affirmative defense,

19

Pilgrim’s is seeking to relitigate issues this Court has already decided. This Court’s

20

October 18, 2022 Order (Dkt. No. 77 at 3–4) and the Summary Judgment Order

21

(Dkt. No. 247 at 6, 10–11) has held privity is not required for Innovative’s express

22

and implied warranty claims against Pilgrim’s.

23

Pilgrim’s Response: Innovative misconstrues the Court’s findings. When ruling

24

on a motion to dismiss or a motion for summary judgment, the Court must consider

25

the standard of review. The Court’s ruling on Pilgrim’s Motion to Dismiss was

26

premised on Innovative’s inaccurate allegations that Pilgrim’s mislabeled the 584
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Chicken, and Innovative relied on the label.

2

Innovative cannot claim that the label is misleading or incorrect. With respect to

3

the summary judgment ruling, the Court merely denied both parties’ motions for

4

summary judgment, leaving the factual questions, like those needed to establish

5

that privity is not required, for the jury. As Plaintiff claims to have relied on an

6

outdated product fact sheet describing a different product that it received from a

7

party other than Pilgrim’s, this question is very much alive for the jury.

8

Court’s Ruling: Innovative’s objection is SUSTAINED. Pilgrim’s may not pursue

9

a privity defense at trial. The Court previously found that privity is generally

10

required for Innovative’s breach of warranty claims. (See Dkt. No. 247 at 6, 10.)

11

However, that requirement is “relaxed” for express warranty claims, and in denying

12

Pilgrim’s motion for summary judgment, the Court found that Innovative met this

13

“relaxed” requirement. (See id. at 6.) Similarly, the Court denied Pilgrim’s motion

14

for summary judgment on Innovative’s implied warranty claim, thus finding that

15

the “intended third-party beneficiaries” exception applied to Innovative in this case.

16

(See id. at 10–11.) Innovative has satisfied the privity requirement for its breach of

17

warranty claims, and Pilgrim’s is precluded from making this defense.

18

The Court has now ruled that

14. Superseding cause.

19 Innovative denies Pilgrim’s affirmative defenses.
20

2.

Against Houlihan’s Cross Claims

21

Pilgrim’s will pursue the following affirmative defenses against Houlihan’s cross claims:

22

1. Houlihan knew or should have known the 584 Chicken it ordered contained bones;

23

Houlihan is precluded from recovery by the doctrine of assumption of the risk.

24

2. Houlihan lacked privity with Pilgrim’s.

25

3. Unclean hands.

26
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4. Houlihan’s damages were caused by fraud, deceit and/or misrepresentations by

2

other parties over whom Pilgrim’s had no control.

3

5. Houlihan did not provide proper notice of breach and/or non-conforming goods to

4

Pilgrim’s.

5

6. Houlihan accepted the 584 Chicken pursuant to RCW 62A.2-606-607.

6

7. Houlihan failed to mitigate its damages.

7

8. Any claim that the Pilgrim’s 584 Chicken label is a misrepresentation is preempted

8

by federal law.

9

9. Contributory and/or comparative negligence;

10

10. Apportionment of fault. The negligence, fault, and/or responsibility, if any, of all

11

persons or entities who contributed to Houlihan’s alleged damages should be

12

apportioned pursuant to RCW 4.22.070, and expressly include Houlihan and

13

Innovative.

14

11. Superseding cause.

15 Houlihan denies Pilgrim’s affirmative defenses and further joins in Innovative’s position about
16 what has already been decided by this Court via summary judgment.
IV.

17

ADMITTED FACTS

18

The following facts are admitted by the parties:

19 A.

The Parties.

20

1.

Innovative Solutions International, Inc. (“Innovative”) is a manufacturer of value

21 added specialty chicken, beef, and pork products. Since it was founded in 1996, Innovative has
22 sold its products to retailers such as Safeway/Albertsons, Kroger, Costco, independent retailers,
23 and wholesalers. Innovative sold one product, Chile Lime Chicken Burgers (“Chile Lime
24 Burgers”), to Trader Joe’s exclusively from 2007 to October 2021.
25

2.

Pilgrim’s Pride Corporation (“Pilgrim’s”) is a meatpacking corporation. Pilgrim’s

26 produces, among other things, large quantities of chicken and sells such products to wholesalers,
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1 distributors, retailers, and other commercial customers. One of Pilgrim’s products was raw chicken
2 with Pilgrim’s product code 584 (“584 Chicken”), which is the product at issue in this case.
3

3.

Houlihan Trading Co., Inc. (“Houlihan”) sells meat wholesale to manufacturers and

4 retailers. After purchasing 584 Chicken at issue from various intermediary sellers, Houlihan sold
5 584 Chicken to Innovative, which Innovative then used in Chile Lime Burgers.
6 B.

Admitted Facts.

7

4.

Innovative is a producer of ready-to-cook food items, including the Chile Lime

8 Burger formerly sold at retail by Trader Joe’s.
9

5.

Pilgrim’s is a commercial producer of chicken products, including the product

10 known as 584 Chicken, which it produces at its Lufkin, Texas plant.
11

6.

Houlihan is a trader of meat products, including chicken.

12

7.

In the summer of 2021, Innovative asked Houlihan to source boneless chicken

13 trimmings for its use in the production of Chile Lime Burgers.
14

8.

Houlihan never took physical possession of the 584 Chicken being delivered to

15 Innovative.
16

9.

Houlihan represented to Innovative that 584 Chicken was a boneless and skinless

17 product.
18

10.

Innovative produced Chile Lime Burgers using 584 Chicken.

19

11.

Six truckloads of 584 Chicken were sold by Pilgrim’s, with five truckloads going

20 to Henley’s Wholesale Meats, Inc. (“Henley’s”), and one to MG Trading International (“MG
21 Trading”). The five loads that went to Henley’s then went to North South Food Groups, Inc., and
22 then to Cook International Trade & Brokerage, Inc. (“Cook”) (via its agent, Shumaker
23 International Corporation (“Shumaker”)). The load that went to MG Trading went to Cook (via
24 Shumaker). Then, Cook sold four of the six loads to Houlihan, and the other two loads to Marcus
25 Technologies LLC, which sold them to Brighton Group, LLC, which sold them to Houlihan.
26
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12.

Pilgrim’s sale of 584 Chicken, whether conforming or not, occurred in the conduct

2 of Pilgrim’s trade or commerce.
3

13.

Innovative sold the Chile Lime Burgers to Trader Joe’s, which then sold the Chile

4 Lime Burgers to its customers.
5

14.

In late-September/October 2021, Innovative learned that its customer, Trader Joe’s,

6 was receiving an unusual volume of customer complaints about bone fragments in Chile Lime
7 Burgers.
8

15.

A subsequent X-ray inspection at FlexXray revealed bone fragments in each of the

9 297 cases of Chile Lime Burgers X-rayed.
10

16.

As a direct result of the November 2021 recall, Innovative sustained hard cost

11 expenses of at least $896,111.00.
V.

12

ISSUES OF LAW

13 A.

Motions in Limine

14

The parties note that the Court’s resolution of the remaining motions in limine (Dkt. No.

15 256) that it has not already decided (Order, Dkt No. 281) will likely resolve certain of the parties’
16 disputes regarding exhibits, deposition designations, jury instructions, and verdict forms.
17 B.

Innovative’s List of Legal Issues Decided

18

Innovative contends the following legal issues were resolved in the Summary Judgment

19 Order:
20

1.

Pilgrim’s (Dkt. No. 247 at 7–10):

21
22

Innovative’s and Houlihan’s negligent misrepresentation claims against

Element 2: Pilgrim’s knew or should have known the information was supplied to guide

23 Innovative and Houlihan.
24

Element 3: Pilgrim’s negligently communicated information to Innovative and Houlihan.

25

Element 4: Innovative relied on such information.

26
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Pilgrim’s Objections: Pilgrim’s objects to Houlihan’s mischaracterization of the Court’s

1

2 summary judgment order. The Court made no findings with respect to Houlihan’s claims and
3 Houlihan bears the burden of proof to establish each element of its claims at trial.
Court’s Ruling: As the Court noted multiple times in its summary judgment order (Dkt.

4

5 No. 247), Houlihan joined Innovative in its motion for summary judgment as to the negligent
6 misrepresentation claim. The Order further explicitly states that its summary judgment analysis
7 “applies with equal force to Houlihan’s motion.” (Dkt. No. 247 at 10.) Houlihan therefore does
8 not bear the burden of proof for elements 2, 3, and 4 of its negligent misrepresentation claim.
2.

9
10

Element 3: Pilgrim’s sale of 584 Chicken affected the public interest. 2

11
12
13
14
15
16

Innovative’s and Houlihan’s CPA claim against Pilgrim’s (Dkt. No. 247 at 11–
12; Dkt. No. 253, at 3):

Pilgrim’s Objections: Pilgrim’s objects to Houlihan’s mischaracterization of the Court’s
summary judgment order. The Court made no findings with respect to Houlihan’s claims and
Houlihan bears the burden of proof to establish each element of its claims at trial.
Court’s Ruling: Pilgrim’s objection is SUSTAINED. The Court DISMISSES Houlihan’s
CPA claim.
3.

17

Preemption:

Preemption is determined as a matter of law. MetroPCS California, LLC v. Picker, 970

18 F.3d 1106, 1117 (9th Cir. 2020). The Summary Judgment Order and MIL Order made the
19 following rulings:
20

a.

Instances where preemption applies: The Summary Judgment Order ruled that

21 “express preemption is limited to the representations on the ‘chicken 584’ label.” (Dkt. No. 247 at
22 4–5.) Likewise, the Order stated that, in instances where the label was transmitted outside the
23 normal manner (e.g., via email), there was no preemption. (Dkt. No. 247 at 6 n.11.) Accordingly,
24
25
26

2

Pilgrim’s contends this issue has not yet been determined as to Houlihan.
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1 the label contained on the package, and transmitted only on the package, may not provide the basis
2 for a Pilgrim’s representation.
3

b.

Instances where preemption does not apply: The Summary Judgment Order ruled

4 that any representations other than the label simply affixed to the package (e.g., product fact sheet,
5 specification sheet, emailed label, etc.) are not preempted. (Dkt. No. 247 at 4–5). Moreover, the
6 MIL Order ruled that the “for export only” language on the label may be relevant to certain
7 Pilgrim’s defenses. (Dkt. No. 281 at 5.)
8

c.

No preemption references should be made to the jury: In the MIL Order, the Court

9 stated it “…agrees with Innovative that any references to preemption would confuse and mislead
10 the jury, particularly since it is a legal issue that has already been adjudicated. (See Dkt. No. 247
11 at 5) The Court therefore GRANTS Innovative’s first motion in limine.” (Dkt. No. 281 at 2.) The
12 Court added that “…any reference to USDA determinations as they relate to the FSIS pre-approved
13 label would certainly (1) confuse the issues as to what is and is not allegedly misrepresented, and
14 (2) mislead the jury as to what evidence it can and cannot consider. The Court therefore GRANTS
15 Innovative’s second motion in limine.” Id. at 1-2.
16

Pilgrim’s Objection: Pilgrim’s objects to Innovative’s mischaracterization of the Court’s

17 summary judgment and MIL Order rulings. For example, in its summary judgment order, the
18 Court did not rule the contents of Pilgrim’s label may not provide the basis for a Pilgrim’s
19 representation. Such a reading is nonsensical. The Court concluded that any misrepresentation
20 claim based on an FSIS-approved label (here, the “584 Chicken” label) imposes an additional or
21 different requirement and is therefore preempted. Dkt. No. 247 at 5. In other words, Innovative
22 cannot claim that the approved 584 Chicken label affixed to the boxes by Pilgrim’s constitutes a
23 misrepresentation. Moreover, a motion in limine is generally a tentative, interlocutory,
24 precautionary ruling reflecting the anticipatory treatment of a specific evidentiary issue and are
25 subject to reconsideration throughout the trial based on the evidence submitted. Pilgrim’s reserves
26
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1 the right to raise the issue of the FSIS pre-approved label and USDA determinations surrounding
2 the product and label, if warranted based on the evidence adduced at trial.
Court’s Ruling: Pilgrim’s objection is OVERRULED. See the Court’s ruling at pages 12–

3

4 13 of this Order.
5 C.

Innovative’s and Houlihan’s Issues of Law

6

Innovative and Houlihan agree the following are the issues of law that remain to be

7 determined and are appropriate for consideration by the Court:
8 1.

Innovative’s Issue of Law #1: Joint and Several Liability.

9 Under Washington law, “full joint and several liability remains the rule in cases
10 involving . . . unmarked fungible goods.” Avco Corp. v. Crews, 76 F. Supp. 3d 1161, 1165 (W.D.
11 Wash. 2015). Fungible goods are “[g]oods that are interchangeable with one another; goods that,
12 by nature or trade usage, are the equivalent of any other like unit, such as coffee or grain.” Goods,
13 Black’s Law Dictionary (11th ed. 2019) (citing UCC § 2-105(2)). Innovative requests the Court
14 determine that bulk wholesale chicken breast meat, as purchased here, is a fungible good, and
15 therefore joint and several liability applies as to Pilgrim’s and Houlihan.
16

Pilgrim’s Objection: Pilgrim’s objects that the “issue of law” asserted by Innovative in

17

this paragraph is not properly phrased as an “issue” to be resolved by the Court, but instead,

18

consists of self-serving, one-sided argument, favorable only to Innovative. This “issue”

19

should not be submitted. Pilgrim’s contends the 584 Chicken is not an unmarked fungible

20

good. Indeed, it was properly labeled by Pilgrim’s, and Houlihan’s liability is derived from

21

Houlihan misrepresenting the nature of the product and breaching its own contract with

22

Innovative, a factual scenario where joint and several liability is wholly inappropriate.

23

Houlihan’s Objection: Houlihan objects to the assertion that fault can only be allocated

24

to Pilgrim’s and Houlihan as Innovative is not a fault free party. Houlihan further disagrees

25

that the at issue chicken breast meat is an “unmarked” fungible good. Innovative provides

26

the definition of fungible goods as stated in Black’s Law Dictionary, but this definition
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clearly identifies fungible goods as “interchangeable with one another” and goods that are

2

“the equivalent of any other like unit, such as coffee or grain.” This definition does not

3

apply to the at issue chicken breast meat. The at issue chicken product is indisputably

4

Pilgrim’s 584 chicken breast pieces with rib meat. This meat was branded as a Pilgrim’s

5

product and, therefore, is a “marked” good and distinguishable from other chicken breast.

6

Court’s Ruling: The Court FINDS that the 584 Chicken is not an unmarked fungible good

7

and DECLINES to apply joint and several liability in this case. “In 1986, Washington’s

8

legislature abolished joint and several liability in most circumstances in favor of

9

proportionate liability.” Avco Corp. v. Crews, 76 F. Supp. 3d 1161, 1165 (W.D. Wash.

10

2015). Accordingly, Washington law requires all liability to be apportioned unless one of

11

several exceptions applies. Id.; see also RCW 4.22.070 (listing exceptions). None of the

12

exceptions apply here. With respect to the “unmarked fungible goods” exception, RCW

13

4.22.070(3)(c) explains that proportionate liability does not apply in cases arising out of “a

14

fungible product in a generic form which contains no clearly identifiable shape, color, or

15

marking.” By this definition, the Product at issue is not an “unmarked” good—to the

16

contrary, it is indisputably a Pilgrim’s product clearly identified as “584 Chicken.” The

17

other exceptions do not apply because (1) Pilgrim’s and Houlihan were not acting in

18

concert, see RCW 4.22.070(1)(a); and (2) judgment cannot be entered against two or more

19

defendants because all of the defendants have since settled with Plaintiff, except for

20

Pilgrim’s, see RCW 4.22.070(1)(b).

21

2.

Innovative’s Issue of Law #2: Treble Damages. Under the CPA, this Court has

22 discretion to award treble damages. RCW 19.86.090. This includes circumstances where the
23 defendant has committed unfair or deceptive acts or has violated a law impacting the public
24 interest, such as the PPIA. See 21 U.S.C. § 451 (“It is essential in the public interest that the health
25 and welfare of consumers be protected by assuring that poultry products distributed to them are
26 wholesome, not adulterated, and properly marked, labeled, and packaged.”). To the extent the
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1 Court determines this is an issue of law (rather than an issue for the jury), Innovative requests the
2 Court award it treble damages for its CPA claim against Pilgrim’s. Likewise, this Court will need
3 to consider how many CPA violations Pilgrim’s committed for the purposes of determining any
4 applicable damage cap.
5

Pilgrim’s Objection: Pilgrim’s objects that the “issue of law” asserted by Innovative in

6

this paragraph is not properly phrased as an “issue” to be resolved by the Court, but instead,

7

consists of self-serving, one-sided argument, favorable only to Innovative. This “issue”

8

should not be submitted. Pilgrim’s further objects to any argument that more than one

9

“act” would be applicable in the event treble damages are found to apply, and any increased

10

damage amount shall not exceed twenty-five thousand dollars pursuant to RCW 19.86.090.

11

Houlihan’s Objection: While Houlihan agrees that the CPA carries the possibility of

12

treble damages under circumstances such as this, Houlihan contends that the issue of treble

13

damages under the CPA is directed to the jury under the Seventh Amendment of the United

14

States Constitution and Fed. R. Civ. P. 38(a).

15

Court’s Ruling: The Court DEFERS ruling until after trial. However, the Court notes that

16

per RCW 19.86.090, treble damages are within the Court’s discretion (and not the jury’s).

17

3.

Innovative’s Issue of Law #3: Attorney Fees to Innovative. While a jury will

18 determine if Pilgrim’s violated the remaining elements of the CPA, the Court determines, in its
19 discretion, whether to award attorney fees and costs and the amount of such award. See, e.g., Univ.
20 of Washington v. Gov’t Employees Ins. Co., 200 Wn. App. 455, 465, 482-83, 404 P.3d 559 (2017)
21 (jury finding CPA violation and trial court awarding attorney fees post-trial). Pursuant to RCW
22 19.86.090, Innovative requests the Court determine Innovative is entitled to recover its attorney
23 fees and costs in this action from Pilgrim’s due to Pilgrim’s unfair or deceptive acts under the
24 CPA. The Court should also determine the amount of such award following trial.
25

Houlihan’s response: Houlihan similarly requests that the Court award Houlihan its

26

reasonable attorneys’ fees and costs in an amount to be determined post-trial.
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Pilgrim’s Objection: Pilgrim’s objects to the extent this issues statement claims that RCW

2

19.86.090 allows for anything beyond reasonable attorney fees. Houlihan has no viable

3

claim for fees under the CPA.

4

Court’s Ruling: The Court DEFERS ruling until after trial.

5
6

4. Houlihan’s Issue of Law #1: Equitable Indemnity/Equitable Subrogation.
Innovative and Houlihan have entered into a settlement agreement by which all of

7 Innovative’s claims will be dismissed, in exchange for money paid by Houlihan’s insurer, subject
8 to this Court’s confirmation of reasonableness pursuant to RCW 4.22.060. Houlihan contends that
9 the potential settlement is reasonable under the circumstances and necessarily includes, in whole
10 or in part, payment of Pilgrim’s anticipated obligation for the purpose of protecting Houlihan’s
11 and its insurer’s own rights and interests.
12

In Washington, a party may recover consequential damages, including attorney fees, under a

13 theory of equitable indemnity. Jakobsen v. Burros, 2020 WL 1528473, slip op. at 2 (W.D. Wash.
14 2020) (citing Blueberry Place Homeowners Ass’n v. Northward Homes, Inc., 110 P.3d 1145,
15 1149–50 (Wash. 2005). To recover under this theory, three elements must be present: “(1) a
16 wrongful act or omission by A toward B; (2) such act or omission exposes or involves B in
17 litigation with C; and (3) C was not connected with the initial transaction or event, [namely], the
18 wrongful act or omission of A toward B.” Manning v. Loidhamer, 538 P.2d 136, 138 (Wash. Ct.
19 App. 1975). Houlihan is seeking equitable indemnity against Pilgrim’s because, but for Pilgrim’s
20 sale of nonconforming 584 chicken, Houlihan would not have been exposed to this litigation with
21 Innovative.
22

Similarly, in Washington, “those who pay the obligation of another for the purpose of

23 protecting their own rights or interests” may be entitled to equitable subrogation. In re Farmers’
24 & Merchants’ State Bank of Nooksack, 26 P.2d 631, 633–34 (Wash. 1933). Courts will require the
25 party who should pay a debt to ultimately pay it, based on the circumstances of each case and the
26 demands for justice and an equitable result. Tri-City Const. Council, Inc. v. Westfall, 112 P.3d 558
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1 (Wash. Ct. App. 2005) (internal citations omitted). “The doctrine as now applied is broad enough
2 to include every instance in which one person, not acting voluntarily, pays a debt for which another
3 is primarily liable, and which in equity and good conscience should have been discharged by the
4 latter.” Id. Houlihan is seeking equitable subrogation of its payment to Innovative which should
5 have been borne by Pilgrim’s because, but for Pilgrim’s sale of nonconforming 584 chicken,
6 Houlihan would not have been exposed to this litigation with Innovative, would not have been
7 found to have breached its contract with Innovative by providing nonconforming goods, and would
8 not have been compelled to pay to Innovative the limits of its insurance policy to protect itself
9 from further exposure at trial.
10

Houlihan anticipates bringing a post-trial motion to present its claim for equitable

11 indemnity and equitable subrogation.
12

Pilgrim’s Objection: Houlihan and Innovative have not produced the settlement

13 agreement pertaining to their claims or disclosed the terms of the agreement. Accordingly,
14 Pilgrim’s reserves all objections to this issue of law. Pilgrim’s further objects to Houlihan
15 pursuing a claim for equitable subrogation as it was not pleaded. As Innovative is still pursuing
16 its claims against Pilgrim’s, Houlihan has not fully satisfied any alleged obligation of Pilgrim’s,
17 making equitable subrogation inapplicable. Houlihan is also not entitled to equitable indemnity or
18 equitable subrogation as its settlement with Innovative only purports to settle its own proportionate
19 share of the fault thereby entitling Houlihan to nothing from Pilgrim’s.
20

Pilgrim’s Objection: Pilgrim’s objects that the “issue of law” asserted by Houlihan in this

21

paragraph is not properly phrased as an “issue” to be resolved by the Court, but instead,

22

consists of self-serving, one-sided assertions by Houlihan. This “issue” should not be

23

submitted. This is one of the claims Houlihan’s intends to pursue at trial, not an issue of

24

law. Pilgrim’s incorporates its objections and reservations raised in response to Houlihan’s

25

Issue of Law #1.

26

Court’s Ruling: The Court DEFERS ruling until after trial.
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1 D.

Pilgrim’s Issues of Law.

2

Pilgrim’s submits the following issues of law to be determined by the Court.

3

1.

Does the United States Department of Agriculture’s determination that Pilgrim’s

4 properly labeled the poultry at issue preempt Plaintiff’s and Houlihan’s state law claims?
5

Innovative Objection: To the extent any of these are valid legal issues, Pilgrim’s

6

is seeking to relitigate issues this Court has already decided. The Summary

7

Judgment Order and MIL Order made the following rulings:

8

a.

Instances where preemption applies: The Summary Judgment Order ruled

9

that “express preemption is limited to the representations on the ‘chicken

10

584’ label.” (Dkt. No. 247 at 4–5) Likewise, the Order stated that, in

11

instances where the label was transmitted outside the normal manner (e.g.,

12

via email), there was no preemption. (Dkt. No. 247 at 6 n.11) Accordingly,

13

the label contained on the package, and transmitted only on the package,

14

may not provide the basis for a Pilgrim’s representation.

15

b.

Instances where preemption does not apply: The Summary Judgment Order

16

ruled that any representations other than the label simply affixed to the

17

package (e.g., product fact sheet, specification sheet, emailed label, etc.) are

18

not preempted. (Dkt. No. 247 at 4–5.) Moreover, the MIL Order ruled that

19

the “for export only” language on the label may be relevant to certain

20

Pilgrim’s defenses. (Dkt. No. 281 at 5.)

21

c.

No preemption references should be made to the jury: In the MIL Order, the

22

Court stated it “…agrees with Innovative that any references to preemption

23

would confuse and mislead the jury, particularly since it is a legal issue that

24

has already been adjudicated. (See Dkt. No. 247 at 5.) The Court therefore

25

GRANTS Innovative’s first motion in limine.” (Dkt. No. 281 at 2) The

26

Court added that “…any reference to USDA determinations as they relate
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1

to the FSIS pre-approved label would certainly (1) confuse the issues as to

2

what is and is not allegedly misrepresented, and (2) mislead the jury as to

3

what evidence it can and cannot consider. The Court therefore GRANTS

4

Innovative’s second motion in limine.” Id. at 1-2.

5

The Court’s Summary Judgment Order and MIL Order have already resolved the

6

parameters of the preemption issue.

7

Houlihan’s Objection: Houlihan joins in Innovative’s objections and further

8

objects to Pilgrim’s factual assertion that the USDA affirmatively determined that

9

the Pilgrim’s 584 chicken was properly labeled. There is no indication the USDA

10

ever inspected the product or determined that the goods inside the carton conformed

11

to the label; rather, a USDA official simply stated that “breast pieces” did not carry

12

an indication of being a boneless product, even though other USDA officials

13

reached the opposite conclusion.

14

Court’s Ruling: Innovative’s objection is SUSTAINED. See the Court’s ruling at

15

pages 12–13 of this order.

16

2.

Is Plaintiff permitted to assert a private action against Pilgrim’s based upon alleged

17 violations of the PPIA, when Congress did not expressly provide for a private right of action under
18 the PPIA?
19

Innovative Objection: Innovative objects on the same grounds as stated in its

20

objection to Pilgrim’s legal issue one, and incorporates that objection here.

21

Innovative disputes that it is asserting any private right of action under the PPIA.

22

(See Dkt. No. 247 at 3-5.) Further, Innovative is no longer pursuing a theory of per

23

se CPA liability under the PPIA.

24

Court’s Ruling: Innovative’s objection is SUSTAINED. See the Court’s ruling at

25

pages 12–14 of this order.

26
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1

3.

Where the USDA has already approved the product label and investigated a

2 complaint by Innovative and found no wrongdoing, can a plaintiff then allege violations of the
3 PPIA (a federal law) as the basis for Plaintiff’s allegation that Pilgrim’s has violated Washington
4 state law?
5

Innovative Objection: Innovative objects on the same grounds as stated in its

6

objection to Pilgrim’s legal issue one, and incorporates that objection here.

7

Innovative disputes that it is asserting any private right of action under the PPIA.

8

(See Dkt. No. 247 at 3-5.) Further, Innovative is no longer pursuing a theory of per

9

se CPA liability under the PPIA. Finally, the Court has ruled in its MIL Order that

10

references to the USDA’s/FSIS’s determinations as they relate to the label are

11

excluded. (Dkt. No. 281 at 3-4.)

12

Court’s Ruling: Innovative’s objection is SUSTAINED. See the Court’s rulings

13
14
15
16
17

at pages 12–14 of this order.
4.

Does the United States Department of Agriculture’s determination that Pilgrim’s

properly labeled the poultry at issue in this case serve as prima facie evidence that Pilgrim’s has
not violated the state of Washington’s Consumer Protection Act?
Innovative Objection: Innovative objects on the same grounds as stated in its

18

objection to Pilgrim’s legal issue one, and incorporates that objection here.

19

Innovative disputes that it is asserting any private right of action under the PPIA.

20

(See Dkt. No. 247 at 3-5.) Further, Innovative is no longer pursuing a theory of per

21

se CPA liability under the PPIA. Finally, the Court has ruled in its MIL Order that

22

references to the USDA’s/FSIS’s determinations as they relate to the label are

23

excluded. (Dkt. No. 281 at 3-4.)

24
25

Houlihan’s Objection: Houlihan objects on the same grounds as stated in its

26

objection to Pilgrim’s legal issue one, and incorporates that objection here.
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1

Court’s Ruling: Innovative’s objection is SUSTAINED. See the Court’s ruling at

2

pages 12–14 of this order.

3

5.

Does Pilgrim’s lack of privity with Innovative bar recovery on any of Innovative’s

4 outstanding claims?
5

Innovative Objection: Pilgrim’s is seeking to relitigate issues this Court has

6

already decided. This Court’s October 18, 2022 Order (Dkt. No. 77 at 3-4) and

7

Summary Judgment Order (Dkt. No. 247 at 6, 10-11) has held privity is not required

8

for Innovative’s express and implied warranty claims against Pilgrim’s.

9

Court’s Ruling: Innovative’s objection is SUSTAINED. See the Court’s ruling at

10

pages 14–15 of this order.

11

6.

Can Plaintiff proceed on all claims or do any inconsistent theories of liability need

12 to be dismissed or abandoned?
13

Innovative Objection: This “legal issue,” as presented, is vague, ambiguous, and

14

it is unclear what the exact legal issue Pilgrim’s is seeking to determine. Pilgrim’s

15

fails to identify any authority, how Innovative’s claims are inconsistent, or what

16

claims might need to be dismissed.

17

Court’s Ruling: Innovative’s objection is SUSTAINED. Pilgrim’s “issue of law”

18

entirely misses the mark. Federal Rule of Civil Procedure 8(d)(3) allows a party to

19

“state as many separate claims or defenses as it has, regardless of consistency.”

20

7.

Can Houlihan’s, a nonresident plaintiff, pursue a CPA claim against a nonresident

21 defendant based on conduct not occurring in Washington, or would such an application be outside
22 the scope of the CPA and/or unconstitutional?
23

8.

Does Washington law apply to Houlihan’s consumer protection claim when none

24 of the conduct alleged occurred in Washington or does Missouri law apply to Houlihan’s consumer
25 protection claim?
26
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1

Court’s Ruling: As discussed on pages 7–8 of this Order, the Court DISMISSED

2

Houlihan’s CPA claim. As such, Pilgrim’s issue of law numbers 7 and 8 are moot.

3

9.

Can Houlihan pursue its claims against Pilgrim’s when its only alleged damages

4 are moneys paid in settlement to Innovative to satisfy its proportionate share of the fault?
VI.

5

EXPERT WITNESSES

6 A.

Damages

7

(a)

8

damages.

9

(b)

The names of the expert witnesses to be used by each party on this issue are:

10

(1)

On behalf of Innovative: Steven Kessler;

11

(2)

On behalf of defendant Pilgrim’s: Neil Beaton;

Innovative and Pilgrim’s shall be limited to one expert witness on the issues of

12
13 B.

Food Safety

14

(a)

15

food safety.

16

(b)

The names of the expert witnesses to be used by each party on this issue are:

17

(1)

On behalf of Innovative: Armia Tawadrous;

18

(2)

On behalf of defendant Pilgrim’s: Richard Atkinson;

Innovative and Pilgrim’s shall be limited to one expert witness on the issues of

19 Pilgrim’s Response: Pilgrim’s reserves the right to subpoena expert witnesses previously
20 disclosed by Houlihan.
21 Innovative and Houlihan Objection: Innovative and Houlihan object to Pilgrim’s reservation of
22 rights to subpoena expert witnesses previously disclosed by Houlihan. Such experts are non23 testifying experts, and Innovative and Houlihan will move to quash any trial subpoena directed
24 towards them.
25 Court’s Ruling: Innovative and Houlihan’s objection is SUSTAINED under Federal Rule of Civil
26 Procedure 26(b)(4)(D).
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VII.

1

OTHER WITNESSES

2 A.

Innovative’s Witnesses

3

1.

4

Innovative expects to call the following individuals as witnesses (in an order Innovative’s

By Live Testimony

5 counsel will determine at trial) to elicit live testimony at trial:
6

1.

Frank Sorba (will testify)

7

Mr. Sorba is the founder and president of Innovative. Mr. Sorba will testify about Chile

8 Lime Burgers, the purchase and use of 584 Chicken in Chile Lime Burgers, Innovative’s
9 relationship with Trader Joe’s, the recall of the Chile Lime Burgers, the damages Innovative
10 suffered due to Pilgrim’s and Houlihan’s sale of 584 Chicken that contained excessive bones, and
11 other matters relevant to Innovative’s claims.
12

2.

13

Ms. Brady is Innovative’s Vice President of Operations. Ms. Brady will testify about Chile

Alyson Brady (will testify)

14 Lime Burgers, the purchase and use of 584 Chicken in Chile Lime Burgers, Innovative’s
15 relationship with Trader Joe’s, the recall of the Chile Lime Burgers, the damages Innovative
16 suffered due to Pilgrim’s and Houlihan’s sale of 584 Chicken that contained excessive bones, and
17 other matters relevant to Innovative’s claims.
18

3.

19

Dr. Tawadrous is Innovative’s food safety expert. He will testify about Innovative’s food

Armia Tawadrous (will testify)

20 handling practices and Innovative’s use of 584 Chicken in Chile Lime Burgers. He will also testify
21 about Pilgrim’s Hazard Analysis and Critical Controls Point system, Pilgrim’s and Houlihan’s
22 practices in processing and selling meat products, including 584 Chicken, to customers, and other
23 matters relevant to Innovative’s claims.
24

4.

Steven Kessler, CPA (will testify)

25

Mr. Kessler is Innovative’s damages expert. Mr. Kessler will testify about the damages

26 Innovative suffered due to Pilgrim’s and Houlihan’s sale of 584 Chicken with excessive bones,
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1 including recall costs, lost profits, other damages proximately caused by Pilgrim’s and Houlihan’s
2 actions, and other matters relevant to Innovative’s claims.
3

5.

Alice Craft-McLaughlin (will testify)

4

Ms. Craft-McLaughlin is Pilgrim’s Vice President of Food Safety and Quality Assurance.

5 Ms. Craft-McLaughlin will testify about Pilgrim’s food safety and quality assurance practices,
6 Pilgrim’s marketing of 584 Chicken to customers, Pilgrim’s receipt of complaints from customers
7 regarding 584 Chicken, Pilgrim’s business practices with respect to 584 Chicken, whether the 584
8 Chicken at issue in this case conformed to Pilgrim’s standards for the product, and other matters
9 relevant to Innovative’s claims.
10

6.

11

Mr. Tinoco is a sales manager for Pilgrim’s. Mr. Tinoco will testify about Pilgrim’s food

Santiago Tinoco (will testify)

12 safety and quality assurance practices, Pilgrim’s marketing of 584 Chicken to customers, Pilgrim’s
13 business practices with respect to 584 Chicken, Pilgrim’s receipt of complaints from customers
14 regarding 584 Chicken, whether the 584 Chicken at issue in this case conformed to Pilgrim’s
15 standards for the product, and other matters relevant to Innovative’s claims.
16

7.

17

Ms. Wright is a Pilgrim’s Food Safety and Quality Assurance manager for Pilgrim’s

Alana Wright (will testify)

18 Lufkin, Texas plant. Innovative may offer her deposition testimony concerning Pilgrim’s
19 processing, packaging, marketing, and sale of chicken, including the 584 Chicken processed at
20 Pilgrim’s Lufkin, Texas plant, and other matters relevant to Innovative’s claims.
21

8.

Tanner Lipsey (will testify)

22

Mr. Lipsey is a sales manager for Pilgrim’s. He will testify about Pilgrim’s food safety and

23 quality assurance practices, Pilgrim’s marketing of 584 Chicken to customers, Pilgrim’s receipt of
24 complaints from customers regarding 584 Chicken, Pilgrim’s business practices with respect to
25 584 Chicken, whether the 584 Chicken at issue in this case conformed to Pilgrim’s standards for
26 the product, and other matters relevant to Innovative’s claims.
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1

9.

Travis Griffin (will testify)

2

Mr. Griffin is Houlihan’s vice president. He will testify about Houlihan’s marketing and

3 sale of 584 Chicken, Houlihan’s and Innovative’s business relationship, Houlihan’s purchase of
4 584 Chicken, Pilgrim’s representations regarding 584 Chicken, and other matters relevant to
5 Innovative’s claims.
6

10.

Dana Reynolds (may testify)

7

Ms. Reynolds is Innovative’s office manager. She may testify about documents in

8 Innovative’s possession and costs related to 584 Chicken, Chile Lime Burgers, the recall of the
9 Chile Lime Burgers, and other matters relevant to Innovative’s claims.
10 B.

By Deposition Designation

11

Innovative will or may present the following witnesses via deposition video or deposition

12 transcript. Innovative will present the associated exhibits electronically.
13

11.

Pilgrim’s Witnesses Changed to Live Testimony: Pilgrim’s has agreed to produce

14 Alice Craft-McLaughlin, Santiago Tinoco, Alana Wright, and Tanner Lipsey at trial. Their
15 transcripts may be used in accordance with Federal Rule of Civil Procedure 32(a).
16

12.

Michael Henry (may testify)

17

Mr. Henry is a regional sales manager for Pilgrim’s. He will testify about Pilgrim’s food

18 safety and quality assurance practices, Pilgrim’s marketing of 584 Chicken to customers, Pilgrim’s
19 receipt of complaints from customers regarding 584 Chicken, Pilgrim’s business practices with
20 respect to 584 Chicken, whether the 584 Chicken at issue in this case conformed to Pilgrim’s
21 standards for the product, and other matters relevant to Innovative’s claims.
22

13.

Dolan Patterson (may testify)

23

Mr. Patterson managed national account sales and industrial sales for Pilgrim’s. He will

24 testify about Pilgrim’s food safety and quality assurance practices, Pilgrim’s marketing of 584
25 Chicken to customers, Pilgrim’s receipt of complaints from customers regarding 584 Chicken,
26 Pilgrim’s business practices with respect to 584 Chicken, whether the 584 Chicken at issue in this
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1 case conformed to Pilgrim’s standards for the product, and other matters relevant to Innovative’s
2 claims.
3

14.

Jason Larson (will testify)

4

Mr. Larson was deposed as the Fed. R. Civ. P. 30(b)(6) designated speaking representative

5 for Trader Joe’s. Innovative will present his deposition testimony regarding Trader Joe’s
6 relationship with Innovative, its sale of Chile Lime Burgers, its recall of Chile Lime Burgers, its
7 decision to no longer sell Chile Lime Burgers, its decision to terminate its relationship with
8 Innovative, and other matters relevant to Innovative’s claims.
9

15.

10

Mr. Griggs was deposed as the Fed. R. Civ. P. 30(b)(6) designated speaking representative

Bryan Griggs (may testify)

11 for Brighton Group, LLC (“Brighton”), an intermediate seller within the supply chain for the 584
12 Chicken at issue. Innovative may present his deposition testimony regarding Brighton’s purchase
13 and sale of the 584 Chicken at issue, representations and contents of 584 Chicken, and other
14 matters relevant to Innovative’s claims.
15

16.

16

Mr. Cook was deposed as the Fed. R. Civ. P. 30(b)(6) designated speaking representative

Dan Cook (may testify)

17 for Cook International Trade Brokerage Inc. (“Cook”), an intermediate seller within the supply
18 chain for the 584 Chicken at issue. Innovative may present his deposition testimony regarding
19 Cook’s purchase and sale of the 584 Chicken at issue, representations and contents of 584 Chicken,
20 and other matters relevant to Innovative’s claims.
21

17.

Cara Huntsman (may testify)

22

Ms. Huntsman was deposed as the Fed. R. Civ. P. 30(b)(6) designated speaking

23 representative for Henley’s Wholesale Meats, Inc. (“Henley’s”), an intermediate seller within the
24 supply chain for the 584 Chicken at issue. Innovative may present her deposition testimony
25 regarding Henley’s purchase and sale of the 584 Chicken at issue, representations and contents of
26 584 Chicken, and other matters relevant to Innovative’s claims.
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1

18.

Billy Marcus (may testify)

2

Mr. Marcus was deposed as the Fed. R. Civ. P. 30(b)(6) designated speaking representative

3 for Marcus Technologies LLC (“Marcus”), an intermediate seller within the supply chain for the
4 584 Chicken at issue. Innovative may present his deposition testimony regarding Marcus’s
5 purchase and sale of the 584 Chicken at issue, representations and contents of 584 Chicken, and
6 other matters relevant to Innovative’s claims.
7

19.

Jacob Shumaker (may testify)

8

Mr. Shumaker was deposed as the Fed. R. Civ. P. 30(b)(6) designated speaking

9 representative for Shumaker International Corp. (“Shumaker”), an intermediate seller within the
10 supply chain for the 584 Chicken at issue. Innovative may present his deposition testimony
11 regarding Shumaker’s purchase and sale of the 584 Chicken at issue, representations and contents
12 of 584 Chicken, and other matters relevant to Innovative’s claims.
13 B.

Houlihan’s Witnesses

14

In addition to Innovative’s listed witnesses, Houlihan may call:

15

1.

16

Mr. Casey is an employee of Houlihan Trading Co., Inc., and may be called to testify

Rory Casey (may testify)

17 regarding documents in Houlihan’s possess and facts and circumstances related to Houlihan’s
18 purchase of the 584 chicken from Cook International Trade & Brokerage and Brighton Group.
19 C.

Pilgrim’s Witnesses

20

In addition to Innovative’s listed witnesses, and designated testimony for witnesses not

21 appearing live, Pilgrim’s expects to call the following witnesses to testify at trial.
22

1.

Kendra Waldbusser (will testify)

23

Ms. Waldbusser serves as Head of Global Food Safety & Quality Assurance at Pilgrim’s.

24 Ms. Wald will testify about Pilgrim’s 584 Chicken, Pilgrim’s manufacturing processes, Pilgrim’s
25 584 Chicken labeling, and certain quality assurance practices and other matters relevant to
26 Innovative’s claims and Pilgrim’s affirmative defenses.
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1

2.

Alice-Craft McLaughlin (will testify)

2

Ms. Craft McLaughlin is Pilgrim’s Vice President of Food Safety and Quality Assurance.

3 Ms. Craft McLaughlin will testify as to matters contained in her deposition, Pilgrim’s food safety
4 and quality assurance practices, Pilgrim’s manufacturing and other matters related to 584 Chicken
5 that relate to Innovative’s claims and Pilgrim’s affirmative defenses.
6

3.

Alana Wright (will testify)

7

Ms. Wright is a Pilgrim’s Food Safety and Quality Assurance manager for Pilgrim’s

8 Lufkin, Texas plant. Ms. Wright will testify as to the production and inspection of 584 Chicken,
9 the labeling and shipping of 584 Chicken, and other matters related to 584 Chicken that relate to
10 Innovative’s claims and Pilgrim’s affirmative defenses.
11

4.

12

Mr. Tinoco is a sales manager for Pilgrim’s international sales. He may testify about the

Santiago Tinoco (may testify)

13 market for 584 Chicken, Pilgrim’s sales efforts for 584 Chicken, and other matters relating to the
14 sale of 584 Chicken that relate to Innovative’s claims and Pilgrim’s affirmative defenses.
VIII. EXHIBITS

15
16

A table setting forth the parties’ exhibits and objections in the form prescribed by LCR

17 16.1 is attached as Exhibit A.
18

Additionally, the parties note that (i) their exhibit lists included a number of duplicative

19 exhibits and that certain duplicative or near-duplicative exhibits were used in depositions and (ii) a
20 number of the depositions that will be read and/or shown in trial refer to deposition exhibits that
21 bear a different deposition exhibit number than the document bears as a trial exhibit. To minimize
22 confusion for the Court, the jury, and the parties, the parties are stipulating in certain cases that a
23 single exhibit can stand in for multiple identical or nearly identical deposition exhibits for purposes
24 of trial. The parties have proposed a jury instruction to this effect and are also preparing a table
25 for the jury that will cross reference trial exhibit numbers to deposition exhibit numbers.
26
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1

Pilgrim’s further notes for the Court that Houlihan and Innovative recently settled.

2 Pilgrim’s has not yet received a copy of the settlement agreement. Pilgrim’s reserves the right to
3 amend its exhibit list in the event necessary to address issues raised by the settlement.
IX.

4

ACTION BY THE COURT

5

(a)

This case is scheduled for trial before a jury on December 2, 2024, at 9:00 A.M.

6

(b)

Trial briefs shall be submitted to the Court on or before November 25, 2024.

7

(c)

Jury instructions requested by either party shall be submitted to the Court on or

8 before November 15, 2024. Suggested questions of either party to be asked of the jury by the
9 Court on voir dire shall be submitted to the Court on or before November 25, 2024.
10

The parties approve this Order as evidenced by the signature of their counsel. This Order

11 shall control the subsequent course of the action unless modified by a subsequent order. This
12 Order shall not be amended except by order of the Court pursuant to agreement of the parties or to
13 prevent manifest injustice.
14

DATED this 26th day of November 2024.

15
16

A

17
18
19

JOHN C. COUGHENOUR
United States District Judge

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AMENDED PRETRIAL ORDER - 37
(2:22-cv-00296-JCC)
321036748.11

K&L GATES LLP
925 FOURTH AVENUE, SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

1 FORM APPROVED:
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K&L GATES LLP

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By: s/Philip M. Guess
5 Philip M. Guess, WSBA #26765
Emaan R. Jaberi, WSBA #56990
6 925 Fourth Avenue, Suite 2900
Seattle, WA 98104-1158
7 Phone: [phone]
Email: [e-mail]
[e-mail]
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9 Elizabeth H. White, WSBA #58976
Henry G. Ross, WSBA #51591
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One SW Columbia Street, Suite 1900
11 Portland, OR 97204
Phone: [phone]
12 Email: [e-mail]
[e-mail]
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PREG O’DONNELL & GILLETT PLLC
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By: s/ Daniel Rankin
16 Bennett J. Hansen, WSBA #24205
Daniel Rankin, WSBA #49673
17 Preg O’Donnell & Gillett PLLC
401 Union Street, Suite 1900
18 Seattle, WA 98101
Email: [e-mail]
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[e-mail]
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AMENDED PRETRIAL ORDER - 38
(2:22-cv-00296-JCC)
321036748.11

K&L GATES LLP
925 FOURTH AVENUE, SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

1

SPENCER FANE LLP

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By: s/ Daniel Blegen
3 Kevin Kuhlman, pro hac vice
Daniel Blegen, pro hac vice
4 Sarah Hobbs, pro hac vice
Spencer Fane LLP
5 1000 Walnut Street, Suite 1400
Kansas City, MO 64106
6 Email: [e-mail]
[e-mail]
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[e-mail]
8 DAVIS WRIGHT TREMAINE LLP
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By: s/ Theo A. Lesczynski
Theo
A. Lesczynski, WSBA # 59780
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Davis Wright Tremaine, LLP
11 920 Fifth Avenue, Suite 3300
Seattle, WA 98104
12 Email: [e-mail]
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AMENDED PRETRIAL ORDER - 39
(2:22-cv-00296-JCC)
321036748.11

K&L GATES LLP
925 FOURTH AVENUE, SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

CERTIFICATE OF SERVICE

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I, Philip M. Guess, certify under penalty of perjury under the laws of the State of

3 Washington that on November 12, 2024, I caused to be served a true and correct copy of the
4 foregoing document on:
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Bennett J. Hansen
Daniel Rankin
Preg O’Donnell & Gillett PLLC
901 Fifth Avenue Suite 3400
Seattle, WA 98164-2026
Email: [e-mail]
[e-mail]

? Via Email
? Via First Class Mail
? Via Hand Delivery
? Via CM/ECF

Theo A. Lesczynski
Davis Wright Tremaine, LLP
920 Fifth Avenue, Suite 3300
Seattle, WA 98104
Email: [e-mail]

? Via Email
? Via First Class Mail
? Via Hand Delivery
? Via CM/ECF

Kevin Kuhlman, pro hac vice
Daniel Blegen, pro hac vice
Sarah Hobbs, pro hac vice
Spencer Fane LLP
1000 Walnut Street, Suite 1400
Kansas City, MO 64106
Email: [e-mail]
[e-mail]
[e-mail]

? Via Email
? Via First Class Mail
? Via Hand Delivery
? Via CM/ECF

DATED: November 12, 2024.
s/ Philip M. Guess
Philip M. Guess

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AMENDED PRETRIAL ORDER - 40
(2:22-cv-00296-JCC)
321036748.11

K&L GATES LLP
925 FOURTH AVENUE, SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]