Principle Solutions LLC v. Feed.Ing BV
Filing
138
ORDER signed by Judge Rudolph T. Randa on 1/8/2015. Pages 9 and 17 of 81 Court's 9/30/2014 Order AMENDED to reflect the correct amount of damages and storage charges (see this Order for details). 110 Principle's Rule 7(h) Expedited Non- Dispositive MOTION for Ruling that no Order For Leave To Amend is Required to Amend Complaint and Add Parties GRANTED; Clerk of Court DIRECTED to file [110-1] Principle's Third Amended Complaint. 86 Principle's MOTION for Leave to File Under Seal GRANTED to the extent that Clerk of Court is DIRECTED to Seal [85-4] Unredacted Version of Exhibit C and file [98-1] Redacted Version of Exhibit C; any party/interested member of the public may challenge the sealing of Exhibit C. 87 Principle's MOTION for Sanctions for Violation of Stipulated Protective Order DENIED. 92 Feed.Ing's Expedited MOTION to Modify Blanket Protective Order GRANTED (see this Order for details). 82 Principle's MOTION for Reconsideration DENIED. 118 Principle's Rule 7(h) Expedited Non-Dispositive MOTION To Vacate Court's September 30, 2014 Decision and Order DENIED. 94 Feed's Expedited MOTION for Entry of Partial Judgment DENIED. 107 Principle's Rule 7(h) Expedited Non-Dispositive MOTION to Strike Feed's Motion for Entry of Partial Final Judgment DENIED. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PRINCIPLE SOLUTIONS LLC,
Plaintiff,
-vs-
Case No. 13-C-223
FEED.ING BV,
NATURAL BALANCE PET FOODS, INC., and
JERRY BALL,
Defendants.
DECISION AND ORDER
This action arises from a business relationship between Feed.Ing
B.V. (“Feed’), a Netherlands business that sells potato mix for use in the
pet food industry, and Principle Solutions LLC (“Principle”), a Wisconsin
business that specializes in sourcing commodities and ingredients for the
pet industry. On September 30, 2014, the Court issued a Decision and
Order granting Feed’s summary judgment motion on its breach of contract
counterclaim and dismissing Principle’s breach of contract claim and
granting Third-Party Defendant Kevin Zimmer’s (“Zimmer”) motion to
dismiss Feed’s third-party complaint against him and dismissing him from
this action. (ECF No. 81.) Applying Wisconsin law, including the Uniform
Commercial Code as adopted in Wis. Stat. ch. 404, the Court found that
Principle breached its June 2012 contract with Feed and Feed sustained
damages of $11,380,800 in lost profits plus $945,0001 in storage fees. The
Court’s order also set a Rule 16 scheduling conference, indicating that its
purpose would be to establish a Rule 16(b)(1) scheduling order. (Decision
and Order, 24.)
On October 6, 2014, Feed filed a second action in this District
against Principle and other defendants, Feed.Ing v. Principle Solutions, et
al., Case No. 14-C-1241 (the “1241 action”), and an emergency motion for a
temporary restraining order freezing assets and a preliminary injunction.
(1241 action, ECF No. 4.)
A flurry of motions in both actions followed.
This Decision and
Order addresses eight pending motions in this action.2 The motions in the
1241 action will be issued in a separate decision.
Motion for Ruling that No Order for Leave to Amend is Required
for Principle to Amend its Complaint and Add Parties
Principle requests that the Court summarily accept its proposed
Third Amended Complaint (ECF Nos. 110, 110-1) and allow for its service
Pages 9 and 17 of the Court’s September 30 Decision state the amount of
storage charges as “$954,000” and the amount of damages as “$11,0380,800.” The
clerical errors are corrected to read “$945,000” and “$11,380,000.” See Fed. R. Civ. P.
60(a).
1
2 Also pending is a motion to seal (ECF No. 119) which is not fully briefed. That
motion will be ruled on at a later date.
-2-
so that new parties will be able to participate in the January 12, 2015,
scheduling conference.
Feed asserts that Principle misinterprets the
relevant portion of the Court’s September 30 Order and, because Principle
wants to amend its complaint two years after the original filing, it must
submit the pleading and obtain express leave after satisfying the relevant
Rule 15 analysis.
To date no Rule 16(b)(1) scheduling order has been
issued in this case.3
The parties’ October 29 joint status report requested that the final
pretrial conference be scheduled in mid-February 2016 and the trial in
March 2016. (ECF No. 91.) The report also stated that Principle intended
to file a third Amended Complaint and would provide a copy to all parties
in advance of the November 12 scheduling conference. Principle did so.
The parties disagreed as to whether Principle needed to file a motion to
amend its pleadings and add parties. (Hale Aff. filed Nov. 12, 2014 ¶ 2.)
(ECF No. 111.) Because the parties could not resolve the dispute prior to
or during the telephonic scheduling conference, it was adjourned until
January 12, 2015, so that the issue could be resolved by motion. (ECF No.
3 Without direction of the Court the parties filed a Rule 26(f) report on March 3,
2014. (ECF No. 64.)
-3-
109.)4
Principle’s first two amended Complaints were prompted by the
Court’s orders informing Principle of jurisdictional defects in both its
original and amended Complaints. (ECF Nos. 8, 23.) This Court’s practice
is to set a deadline for parties to amend pleadings and add parties without
need for motion practice as part of an initial Rule 16(b)(1) conference.
This standard practice is designed to facilitate “the just, speedy, and
inexpensive determination of every action and proceeding.” Fed. R. Civ. P.
1. Although early motions to dismiss and for summary judgment delayed
the issuance of a scheduling order, the Court declines to depart from its
standard practice.
Principle’s expedited non-dispositive motion for a
ruling that no order for leave to amend is required to amend its complaint
and add parties is granted and the Clerk of Court will be directed to file
Principle’s Third Amended Complaint.
Motion to Seal Exhibit C
In its motion for Rule 54(b) reconsideration of this Court’s
September 30 decision, Principle is relying on documents that Feed
produced pursuant to the protective order in this action (the “223
4 The January 12 conference has been adjourned until answers or other
responsive pleadings to the Third Amended Complaint are filed.
-4-
protective order”), which were designated as confidential. (ECF Nos. 69,
70.) Thus, Principle filed a motion to seal (ECF No. 86) exhibit C to the
affidavit of Anne M. Plichta (“Plichta”) (ECF No. 85-4).
In response Feed filed a redacted exhibit C for public filing, and it
asserts the redacted exhibit contains all the information that Principle
needs to use and that the public would have a potential interest in seeing
as a part of the adjudicatory process. (Feed’s Resp. Mot. Leave to File
Under Seal, 2.) (ECF No. 96.) Feed requests that exhibit C be returned
pursuant to Gen. L.R. 79(c)(E.D. Wis.)
The Court may issue a protective order under Rule 26(c)(1)(G),
which is available “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,” including
“requiring that a trade secret or other confidential research, development,
or commercial information not be revealed or be revealed only in a
specified way.” (Emphasis added.) Secrecy is fine at the discovery stage,
before the material enters the judicial record. Baxter Int’l, Inc. v. Abbott
Labs., 297 F.3d 544, 545 (7th Cir. 2002) (citing Seattle Times Co. v.
Rhinehart, 467 U.S. 20 (1984)). “But those documents, usually a small
subset of all discovery, that influence or underpin the judicial decision are
open to public inspection unless they meet the definition of trade secrets
-5-
or other categories of bona fide long-term confidentiality.” Id. The party
seeking to seal items has the burden of showing good cause. See id. at
547.
Sven Gravendeel (“Gravendeel”), the Chief Executive Officer of
Feed, avers that exhibit C is comprised of contracts between Feed and
various customers and, as a result, amounts to a current and
comprehensive customer list. (Gravendeel Decl. ¶¶ 3-4.) (ECF No. 97.)
Feed keeps the information secret, does not generally make it publicly
available, and it cannot be readily compiled from publicly-available
sources. (Id.) Feed obtained its customers over many years through the
expenditure of substantial resources, the list of desirable customers is
largely static, and the industry for the sale of pet food ingredients such as
potato is a small one. (Id.) The Court’s review of exhibit C discloses that
it includes 62 contracts, dated from October 29, 2013, through June 17,
2014, between Feed and various companies, including some multiple
contracts with the same companies.
The facts presented by Feed and a review of exhibit C establish that
a competitor learning the identity of Feed’s recent customers and the
terms of its sales to those customers could gain a competitive advantage in
attempting to take on Feed’s customers as its own.
-6-
The information
amounts to commercially sensitive information that constitutes a trade
secret since its “economic value depends on its secrecy.” See Baxter Int’l,
297 F.3d at 547. Given the small size of the industry, good cause exists for
protecting the names, addresses and contact information of Feed’s recent
customers. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir.
1996) (a customer list is a common trade secret); E.E.O.C. v. Abbott Labs.,
No. 10-C-833, 2012 WL 3842460, at *2 (E.D. Wis. Sept. 5, 2012). See also,
Formax Inc. v. Alkar-Rapidpak-MP Equip., Inc., No. 11-C-0298, 2014 WL
792086, at *3-4 (E.D. Wis. Feb. 25, 2014) (noting that “[i]n Wisconsin,
customer lists are not generally afforded protection as trade secrets,”
citing Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis.2d 202, 209, 267
N.W.2d 242, 246 (Wis. 1978), but finding good cause to seal an invoice,
which the defendants contended contained “sensitive, confidential
information regarding customers, purchases, and sales amounts,” and two
other documents containing similar information).
General L.R. 79(c) allows for the return of an exhibit if directed by
the Court.
However, for purposes of the record, the Court declines to
return the unredacted documents. Feed’s alternative request, that the
redacted version be publicly filed and the unredacted version submitted by
Principle be filed under seal, is granted. The sealing order will expressly
-7-
provide that any party and any interested member of the public may
challenge the sealing of those papers. See Cnty. Materials Corp. v. Allan
Block Corp., 502 F.3d 730, 740 (7th Cir. 2007).
Principle’s Motion for Sanctions and Feed’s Expedited Motion to
Modify Protective Order
Principle seeks sanctions against Feed and its counsel, pursuant to
Rule 37(b)(2) and/or the Court’s inherent power (ECF No. 87), asserting
that Feed violated the 223 protective order by using information obtained
in this action in the subsequent 1241 action by which Feed seeks to
recover assets to satisfy Principle’s monetary obligations resulting from
the Court’s September 30 summary judgment decision.
Feed asserts that using confidential information in a subsequent
enforcement action is acceptable, citing AT&T Corp. v. Public Service
Enterprises of Pennsylvania, Inc., Nos. CIV. A. 99-4975, CIV. A. 99-6099,
2000 U.S. Dist. LEXIS 4649, at **2-3, 8, 2000 WL 387738, at *2 (E.D. Pa.
Apr. 12, 2000).
Feed also argues that (1) Principle has not shown it
violated the protective order or that the subject information is
confidential; (2) the Court of Appeals for this circuit has instructed that
use of the information in related proceedings should generally be
permitted; and (3) Principle has made no attempt to show harm or
-8-
prejudice by having the information filed under seal in the 1241 action.
Feed also requests that the Court take judicial notice of specific
documents.5
Feed also filed a Civil L.R. 7(h) expedited motion (ECF No. 92) to
modify the 223 protective order, indicating that in the 1241 action it used
information produced by Principle pursuant to the protective order to
protect the enforceability of orders or judgments entered in this action.
Feed states that its expedited motion will avoid the expenditure of further
energy on a collateral matter.
Principle asserts that Feed’s desire to avoid sanctions for its
misconduct does not justify expedited relief and the issues should be
decided on the pending motions. It also asserts that Feed has not shown
good cause for modification of the 223 protective order and that the motion
should not be decided by means of an expedited format.
The parties agreed to the 223 protective order, and the Court
approved that order. The order provides, “[w]hereas the parties wish to
Feed’s request refers to the documents as being filed in this action. However,
given the October 6, 2014, filing dates—a date when no documents were filed in this
action—it appears that Feed is referring to documents filed in the 1241 action. Federal
Rule of Evidence 201 permits the Court to take judicial notice of the docket for and
documents filed in the 1241 action because the matter is within the public record and
therefore not subject to reasonable dispute, and it can accurately and readily be
determined from sources whose accuracy cannot reasonably be questioned. See Fed. R.
Evid. 201(b)(2); Henson v. CSC Credit Sers., 29 F.3d 280, 284 (7th Cir. 1994).
5
-9-
ensure that confidential, proprietary, or trade secret information will be
used only for the purposes of this action and will not be disclosed or used in
any other way.”
(Protective Order 2.) (Emphasis added).
The Order
further states: “Except as provided herein, Discovery Material designated
as Confidential Information under this . . . Order shall not be used or
disclosed for any purpose whatsoever other than preparing for and
conducting the above-captioned lawsuit, including any appeal therefrom.”
(Id. at ¶ 3.) (Emphasis added.)
In the 1241 action, Feed filed the documents obtained pursuant to
the 223 protective order under seal. The 1241 action Complaint references
and is based on financial documents produced in discovery in this action
and labeled with a Confidential and/or Confidential-Attorneys Eyes Only
designation in accordance with the 223 protective order.
Among the
several cases cited by Feed contending that its use of the documents was
permissible, the most persuasive is In re Dual-Deck Video Cassette
Recorder Antitrust Litig., 10 F.3d 693, 695-96 (9th Cir. 1993), a contempt
proceeding brought against plaintiff Go Video, Inc. for “using” discovery
subject to a protective order obtained in an earlier lawsuit against the
defendants to support a later lawsuit against them. In addressing the
issue, the appeals court stated:
- 10 -
The defendants have not accused Go-Video of
revealing any secrets. Instead, they argue GoVideo “used” information in violation of the
protective order that it would not have discovered
so easily but for the protective order, just by filing
another lawsuit and litigating. But Go-Video went
to great lengths to avoid revealing in the public
filings anything it had learned in discovery.
Privacy of proprietary information, not immunity
from suit, was the legitimate purpose of the
protective order. Despite its harmless technical
violations, Go-Video substantially complied with
the order. The only other prejudice defendants
have alleged is the $10,000 in attorney’s fees they
spent on the motion to hold Go-Video in contempt.
Id.
See also, Fujitsu Ltd. v. Tellabs, Inc., No. 09 C 4530, 2013 WL
1405223, at *6 (N.D. Ill. Apr. 5, 2013) (“As in Go-Video v. Motion Picture
Association of America, the protective orders in this case were designed to
protect “[p]rivacy of proprietary information, not immunity from suit”).
The
1241
action
is
premised
on
allegations
of
fraudulent
conveyances by Principle and related entities. As in the Go-Video/Dual
Deck case, the protective order was designed to protect the privacy of
information, not shield Principle from such a lawsuit. Furthermore, the
confidentiality of the materials designated by Principle was preserved in
the 1241 action because Feed filed the information under seal, redacted it
from its public filings, and filed objections to the sealing of the materials.
That process afforded Principle an opportunity to move for sealing of the
- 11 -
subject materials. Under these circumstances, the Court finds that Feed
substantially complied with the 223 protective order and denies Principle’s
motion for sanctions.
Furthermore, having carefully considered the parties’ arguments,
the Court concludes that there is “good cause” for modification of the 223
protective order. Thus, the Court modifies the order as follows:
To the extent that the protective order could be
read to preclude the use of confidential
information in E.D. Wis. Case No. 14-C-1241, it is
hereby clarified and modified to provide that
designated confidential information under the
Protective Order may be used in E.D. Wis. Case
No. 14-C-1241 to the same extent as used in this
case, under the same procedures for filing, and
may continue to be used in either case until final
judgment and all possible appeals in both cases
are completed.
This modification is adopted to avoid the presentation of similar issues in
the 1241 action.
Based on the foregoing, Principle’s motion for sanctions is denied,
and Feed’s expedited motion for modification of the protective order is
granted.
Motion for Reconsideration and Expedited Motion to Vacate the
September 30, 2014, Decision and Order
Pursuant to Rule 54(b), Principle seeks reconsideration (ECF No.
- 12 -
82) of certain portions of the Court’s September 30 decision, contending
that the Court (1) misapplied summary judgment methodology by
interpreting disputed material facts in a light most favorable to Feed; (2)
dismissed Principle’s damages claims without proper factual consideration
and in contravention of Wis. Stat. § 402.612; and (3) awarded Feed
damages as a matter of law, without a hearing, based on legally
insufficient evidence and without considering evidence arising well after
the summary judgment briefing. By a subsequently filed expedited motion,
Principle asserts that the summary judgment order awarding damages
based on Feed’s representation that it suffered $11,380,800 in lost profits
should be vacated due to Feed’s intentional misrepresentation of the
market price and sales of its potatoes. (ECF No. 118.)
A district court will grant a motion for reconsideration when: (1) the
court has patently misunderstood a party; (2) the court has made a decision
outside the adversarial issues presented to the court by the parties; (3) the
court has made an error not of reasoning but of apprehension; (4) there has
been a controlling or significant change in the law since the submission of
the issue to the court; or (5) there has been a controlling or significant
change in the facts since the submission of the issue to the court. Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.
- 13 -
1990).
Motions for reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly discovered evidence.
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269
(7th Cir. 1996).
Having reviewed the September 30 decision in light of Principle’s
arguments, the Court does not find that it erred in its application of the
summary judgment methodology, or that Principle’s damages claims were
not given proper factual consideration and were decided contrary to Wis.
Stat. § 402.612, which relates to breach of an installment contract.
Furthermore, the damages amount was supported by paragraphs 18 and
19 of Gravendeel’s declaration, establishing damages as supported by
additional documentation contained in Exhibits O and P to that
declaration. (ECF No. 33, 33-15, 33-16.) Those facts were set forth in
paragraphs 38 and 39 of Feed’s proposed findings of fact:
38. Principle’s refusal to accept and pay for
deliveries it committed to purchase caused Feed
lost profit damages in an amount in excess of
$11,380,800. (Gravendeel Decl. ¶ 18, Exh. O.)
39. In addition, Feed paid $945,000 in storage and
transport charges that it would not have incurred
if not for Principle’s breach. (Gravendeel Decl. ¶
19, Exh. P.)
(ECF No. 34.)
- 14 -
Principle’s response to those proposed findings of fact stated:
[38]. To the extent that this statement suggests
that Principle did not accept or pay for deliveries
it was required to under an agreement with Feed,
the factual record indicates:
The agreement between Principle and Feed was
for a shipment volume of 25 containers per week
for four weeks at a purchase price of 48.5 cents for
potato mix of specified quality. (Zimmer Decl. ¶ 8,
Principle Exh. D, Zimmer Decl. ¶ 9, Principle Exh.
E, Zimmer Decl. ¶¶ 10-17, Principle Exh. F,
Principle Exh. C, Principle Exh. G).
[39]. To the extent that this statement suggests
that Principle breached an agreement with Feed,
the factual record indicates:
The agreement between Principle and Feed was
for a shipment volume of 25 containers per week
for four weeks at a purchase price of 48.5 cents for
potato mix of specified quality. (Zimmer Decl. ¶ 8,
Principle Exh. D, Zimmer Decl. ¶ 9, Principle Exh.
E, Zimmer Decl. ¶¶ 10-17, Principle Exh. F,
Principle Exh. C, Principle Exh. G).
(ECF No. 47-1.)
Principle’s response pressed its construction of the
contract; however, it did not challenge the amount of damages claimed by
Feed. Nor did Principle request relief from any portion of the summary
judgment motion by means of Rule 56(d), an avenue that may be used by a
party that cannot present facts to justify its opposition.
Furthermore, an email exchange between counsel for Feed and
Principle (ECF Nos. 130-1, 132-1) culminated in a sales agreement for
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2,500 metric tons of potato mix for $0.40 per pound signed by Zimmer on
behalf of Principle on November 15, 2013, and Gravendeel of Feed on
November 26, 2013. (Wagner Decl. filed Nov, 26, 2014, ¶ 3.) (ECF No.
130.) Principle filed its opposition to Feed’s summary judgment motion 20
days later, on December 16, 2013.
As of that date, Principle had
information that it could have used to contest the amount of damages.
Principle did not do so, and it may not revisit the issue based on
arguments that could have been made. In awarding damages the Court
relied upon the uncontested sworn statement of Gravendeel. Based on the
issues raised by Principle and the information provided, its Rule 54(a)
motions for reconsideration are denied.
Motions for Entry of Partial Final Judgment and to Strike Motion
for Partial Judgment
Pursuant to Civil L.R. 7(h) and Fed. R. Civ. P. 54(b), Feed seeks
entry of partial final judgment (ECF No. 94), relying on the September 30
Order which granted Feed summary judgment of $12,325,800 on its first
counterclaim for breach of contract (ECF No. 25) and dismissed Principle’s
only contract claim (ECF No. 24); the dismissal of Feed’s remaining claims
against Zimmer (ECF No. 81); and the voluntary dismissal of the
remaining claims against Principle by stipulation (ECF No. 90). Principle
- 16 -
seeks an order striking Feed’s Civil L.R. 7(h) expedited motion for entry of
partial final judgment.6
Feed cites Rule 54(b), which provides: “When an action presents
more than one claim for relief—whether as a claim, counterclaim,
crossclaim, or third-party claim—or when multiple parties are involved,
the court may direct entry of a final judgment as to one or more, but fewer
than all, claims or parties only if the court expressly determines that there
is no just reason for delay.” A court should not enter a final judgment
under Rule 54(b) unless the judgment is an “ultimate disposition of an
individual claim entered in the course of a multiple claims action.” Sears,
Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956). Given the current
state of the action, and the significant contentions regarding the damages
findings, this Court cannot conclude that it is ripe for the ultimate
disposition of the contract claims. Therefore, Feed’s motion for entry of
final judgment is denied. Principle’s motion to strike is also denied.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Pages 9 and 17 of the Court’s September 30, 2014, Decision and
6 Rule 12(f) provides the authority to strike information from a pleading. The
types of pleadings in a civil case are listed in Rule 7, and a motion is not included in
that list. Therefore, the motion is considered as a motion to exclude.
- 17 -
Order are AMENDED to read “$945,000” and “$11,380,800” instead of
“$954,000” and “$11,0380,800;
Principle’s expedited non-dispositive motion for a ruling that no
order for leave to amend is required for it to amend its complaint and add
parties (ECF No. 110) is GRANTED;
The Clerk of Court is directed to file Principle’s Third Amended
Complaint (ECF No. 110-1);
Principle’s motion to seal (ECF No. 86) exhibit C to the Plichta
affidavit is GRANTED to the following extent: the Clerk of Court is
directed to seal the unredacted version of exhibit C (ECF No. 85-4) and file
the redacted version of exhibit C (ECF No. 98-1). Any party and any
interested member of the public may challenge the sealing of exhibit C.
Principle’s motion for sanctions (ECF No. 87) for violating the
protective order is DENIED;
Feed’s Civil L.R. 7(h) expedited motion (ECF No. 92) to modify the
protective order is GRANTED;
The protective order is MODIFIED to add the following paragraph:
To the extent that the protective order could be
read to preclude the use of confidential
information in E.D. Wis. Case No. 14-C-1241, it is
hereby clarified and modified to provide that
designated confidential information under the
- 18 -
Protective Order may be used in E.D. Wis. Case
No. 14-C-1241 to the same extent as used in this
case, under the same procedures for filing, and
may continue to be used in either case until final
judgment and all possible appeals in both cases
are completed.
Principle’s motion for reconsideration (ECF No. 82) is DENIED;
Principle’s motion to vacate the September 30, 2014, Decision and
Order (ECF No. 118) is DENIED;
Feed’s motion for entry of partial final judgment (ECF No. 94) is
DENIED; and
Principle’s motion to strike Feed’s motion for entry of partial final
judgment (ECF No. 107) is DENIED.
Dated at Milwaukee, Wisconsin, this 8th day of January, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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