Principle Solutions LLC v. Feed.Ing BV

Filing 191

ORDER signed by Judge Rudolph T. Randa on 6/25/2015. 164 Feed.Ing's MOTION For Scheduling Order/Scheduling Conference GRANTED to the extent that a Telephonic Scheduling Conference is set for 7/14/2015 at 2:30 PM (Central TIme) before Judge Rud olph T. Randa (the Court will initiate the call) and DENIED in all other respects. 165 Principle's MOTION to Take Discovery Prior to Responding to Feed.Ing's Motion for Summary Judgment GRANTED; Principle's response due 8/24/2015; an y reply thereto due 9/11/2015. 178 Herrick and Kay's MOTION to Temporarily Stay Discovery DENIED. 180 Herrick and Kay's MOTION to Temporarily Stay Deposition of Herrick DENIED. By 6/29/2015 Principle MUST serve Nutrition with copy of [1 66] motion to seal, Plichta declaration and attachments, and this Decision and Order. By 7/14/2015 Principle must file statement indicating whether Nutrition wants exhibit C sealed and, if yes, provide facts accompanied by case law which establish good cause for sealing; motion to seal held in abeyance until those filings are made. See Order for details regarding sealing of non-party papers filed in future. (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, SVEN GRAVENDEEL,
JOSEPH HERRICK, GREGORY KAY,
NATURAL BALANCE PET FOODS, INC.,
and JERRY BALL,
Defendants.

DECISION AND ORDER
This Decision and Order addresses a series of expedited nondispositive motions (ECF Nos. 164, 165, 178, 180) filed pursuant to Civ. L.
R.7(h) (E.D. Wis.) and a motion (ECF No. 166) for leave to file exhibit C to
the declaration of Anne M. Plichta (“Plichta”) (the “Plichta declaration”)
under seal (ECF No. 167-3).
Sealing Motion
With respect to the motion to seal, Plaintiff Principle Solutions LLC
(“Principle”) maintains that exhibit C to the Plichta declaration contains
documents that non-party American Nutrition, Inc. (“Nutrition”) produced
in discovery and designated as confidential.

As stated in previous orders in this action, the Court may issue a
protective order under Federal Rule of Civil Procedure 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.”
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 or other categories of bona fide longterm confidentiality.” Id. The party seeking to seal items has the burden
of showing good cause. See id. at 547.
Principle’s motion does not establish good cause for sealing, and the
Court could deny the motion outright.

However, information that

Nutrition deemed to be confidential is at issue, and there is no indication
that Principle informed Nutrition it was filing the documents. The Court
will require that Principle serve Nutrition with a copy of its motion to seal,
the Plichta declaration, including its attachments, and this Decision and
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Order.

Thereafter, Principle must file a statement indicating whether

Nutrition asserts that exhibit C should be filed under seal and, if it does,
providing facts, accompanied by case law, which it believes establish good
cause for sealing. The motion will be held in abeyance until Principle
makes those filings.
Furthermore, in an effort to streamline sealing requests, any future
requests to seal non-party documents filed in this action must be
accompanied by a statement indicating that the party/parties have
conferred with the non-party, informed the non-party of the intent to file
such documents and determined whether or not the non-party asserts
such documents should be filed under seal.

If sealing is sought, the

statement must set forth facts obtained from the non-party, accompanied
by supporting case law, which are believed to establish good cause for
sealing.
Scheduling Order Motion & Motion for a Stay of Discovery
Defendant Feed.Ing B.V. (“Feed’) requests entry of its proposed
scheduling order or, in the alternative, that a scheduling conference be
conducted, asserting that the case has been pending since February 28,
2013, and no scheduling order has been issued. Feed requests that the
Court issue an order ensuring that a trial will be conducted by February
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2016 so final judgment can be entered in this case by the 3-year mark.
Principle contends that Feed’s proposed dates are unrealistic, and it
requests a scheduling conference shortly after the June 15 date Feed
agreed to for a responsive pleading by Defendants Joseph Herrick
(“Herrick”) and Gregory Kay (“Kay”).

Principle also requests a 90-day

period to conduct specific discovery before responding to Feed’s pending
summary judgment motion.
Herrick and Kay oppose Feed’s proposed scheduling order and
suggest that a scheduling conference should not be set until July or August
2015, allowing the Court time to rule on the motions to dismiss filed or to
be filed by Gravendeel, Herrick, and Kay. (ECF No. 171.) They state that
given their recent joinder, a June scheduling conference would be
premature, would require them to incur considerable expense in legal fees,
possibly unnecessarily, and would be a waste of judicial resources.
Herrick and Kay also filed a motion requesting a temporary stay of
discovery as to the two of them. (ECF No. 178). They assert this would
relieve them of the need to attend, and adverse consequences in failing to
attend, depositions noticed by counsel for Defendant Jerry Ball (“Ball”) and
Principle.

In addition, Herrick and Kay request a temporary stay of

Herrick’s deposition. (ECF No. 180.) They state that because Herrick is
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challenging the existence of the Court’s personal jurisdiction over him,
there is “good cause” for staying the deposition, and that preparing for his
deposition would be burdensome because he is new to the case.
Feed has no objection to Herrick and Kay not attending the
depositions of other individuals scheduled over the next month and a half,
and so does not object to that portion of the motion for a stay. However,
Feed maintains that Herrick and Kay should be required to respond to
discovery, including submitting to their own depositions which Principle
has already noticed.
Principle asserts that Herrick and Kay have not shown good cause
for a protective order, and they should not be allowed to delay discovery
essential to its prosecution of this case. In addition, it states that the
stipulation granting Herrick and Kay an additional four and a half months
to respond to the Third Amended Complaint (“Complaint”) also effectively
stayed discovery for that length of time, and no further stay is warranted
under the circumstances. Principle also indicates that Herrick’s deposition
is essential for its defense of Feed’s summary judgment motion; and even if
Herrick prevails on his motion to dismiss, he would still be subject to
deposition by means of a non-party subpoena.
Rule 16(b)(2) provides “[t]he judge must issue the scheduling order
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as soon as practicable, but in any event within the earlier of 120 days after
any defendant has been served with the complaint or 90 days after any
defendant has appeared.” This case, filed in late February 2013, has taken
a meandering and unconventional course, and the issuance of a scheduling
order has been greatly delayed. Having considered the positions of the
parties and the status of this case, the Court will require that the parties
participate in a telephone scheduling conference on July 14, 2015, at 2:30
p.m., and thereby grants Feed’s alternative request for a scheduling
conference.
Under the circumstances of this case and based on the arguments of
the parties, Herrick and Kay have not established “good cause” to stay
discovery as to them or to stay Herrick’s deposition.

Furthermore,

although the Court is not aware of a requirement that any party attend
another’s deposition in a case, the Court will not approve their nonattendance because that may suggest its approval of multiple depositions
of the same person.

Therefore, their motions for temporary stay of

discovery and deposition are denied.
Motion for Discovery Prior to Summary Judgment Response
Principle requests time for specific discovery to show facts which it
asserts are essential for its opposition to Feed’s summary judgment motion.
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Principle maintains that its request is warranted because: 1) it has not yet
had the ability to conduct all relevant discovery; 2) the declaration of
William J. Behnken (“Behnken”) of Nutrition in support of that motion
“was carefully scripted, does not address essential facts, and requires
further scrutiny;” and 3) relevant discovery requested from Feed remains
outstanding. (Mot. Time to Take Discovery 1.) (ECF No. 165.) On May 19,
the Court stayed the time for Principle to respond Feed’s summary
judgment motion until a decision on Principle’s motion for time to take
discovery, indicating that if the motion is denied Principle would have 20
days from the date of the decision to file its summary judgment response.
Rule 56(d) provides: “If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to
justify its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to take
discovery. . . .” The nonmoving party’s Rule 56(d) affidavit should explain
why the additional discovery is necessary and demonstrate that it has not
been dilatory in seeking such discovery. See Deere & Co. v. Ohio Gear, 462
F.3d 701, 706 (7th Cir. 2006); Kalis v. Colgate-Palmolive Co., 231 F.3d

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1049, 1057 n.5 (7th Cir. 2000).1 Simply claiming that a party has not had
the opportunity to conduct discovery is not enough to defeat a motion for
summary judgment. “Rule 56 does not require that discovery take place in
all cases before summary judgment can be granted. . . . In fact, [the
Seventh Circuit] has noted that ‘the fact that discovery is not complete—
indeed has not begun—need not defeat [a motion for summary judgment].’”
Waterloo Furniture Components, Ltd. v. Haworth, Inc., 467 F.3d 641, 648
(7th Cir. 2006).
In support of its motion, Principle states that the three new
Defendants have not made initial disclosures; it has not conducted
discovery on the new claims added by the Complaint; it had no knowledge
that Feed intended to rely on Behnken as a witness prior to receiving
Feed’s summary judgment motion; and it needs to depose Behnken and
Herrick so that it can refute facts asserted in Feed’s summary judgment
motion.
Feed contends that Principle has not established “good cause” for
failing to conduct discovery earlier, noting that Principle has not noticed
the depositions of Behnken, Terry Luther (“Luther”), Herrick, or Defendant

1 Rule 56(d) was formerly designated as Rule 56(f).
Advisory Comm. Notes, 2010.

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See Fed. R. Civ. P. 56,

Sven Gravendeel (“Gravendeel”).

Feed also states that although it

responded to Principle’s first request for production of documents on July
25, 2014, indicating it would produce documents responsive to requests 2,
6, and 8. However, Feed considered these discovery requests moot after the
Court’s September 30, 2014, Decision and Order, and Principle did not
follow up on the requests until after Feed filed its summary judgment
motion in the spring of 2015. Feed produced those supplemental materials
on May 26, 2105. Feed also states that Principle has not sufficiently shown
that the additional discovery is necessary.
Under Rule 26(d)(1), discovery may not begin until after the Rule
26(f) conference. That conference is now scheduled for July 14, 2015.
Principle has also noticed seven depositions, including those of
Luther, Behnken, and Gravendeel, to take place from June 19 through
July 23. (See ECF Nos. 181-3 through 181-9.) Principle’s motion offers
sufficient detail regarding the facts it hopes to elicit and how they are
expected to create a material issue of fact. Furthermore, Principle’s issues
for discovery are relevant to Feed’s summary judgment motion. Thus,
Principle’s motion to allow discovery before its summary judgment
response is due is granted. Principle may file its response and supporting
papers to Feed’s summary judgment motion on or before August 24, 2015.
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Any reply thereto must be filed on or before September 11, 2015.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Feed’s Civil L.R. 7(h) expedited non-dispositive motion (ECF No.
164) for a scheduling order or, in the alternative, for a scheduling
conference is GRANTED to the extent that the Court will conduct a
telephonic scheduling conference with the parties on July 14, 2015, at
2:30 p.m. (Central Time), the Court will initiate the call, and DENIED in
all other respects;
Principle’s Civil L.R. 7(h) expedited non-dispositive motion to take
discovery prior to responding to Feed’s motion for summary judgment
(ECF No. 165) is GRANTED;
Principle may file its response and supporting papers to Feed’s
summary judgment motion on or before August 24, 2015. Any reply
thereto must be filed on or before September 11, 2015.
Herrick and Kay’s motions to temporarily stay discovery and
Herrick’s deposition (ECF Nos. 178, 180) are DENIED;
Any motion to seal non-party papers filed in this action must be
accompanied by a statement indicating that the party/parties and the nonparty have conferred, the non-party has been informed of the intent to file
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such documents, and a determination has been made as to whether or not
the non-party asserts such documents should be filed under seal.

If

sealing is sought, the statement must set forth facts obtained from the
non-party, accompanied by supporting case law, which are believed to
establish good cause for sealing.
No later than June 29, 2015, Principle MUST serve Nutrition
with a copy of its motion to seal, the Plichta declaration, including its
attachments, and this Decision and Order; and
No later than July 14, 2015, Principle must file a statement
indicating whether Nutrition asserts that exhibit C should be filed under
seal and, if it does, provide facts, accompanied by case law, which it
believes establish good cause for sealing.
The motion to seal (ECF No. 166) will be held in abeyance until
Principle makes those filings.
Dated at Milwaukee, Wisconsin, this 26th day of June, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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