American Dairy Queen Corporation v. Universal Investment Corporation

Filing 186

ORDER re Final Pretrial Conference Rulings; 128 Reserved Portions Motion in Limine to Exclude Evidence Related to Other Dairy Queen Franchisees filed by American Dairy Queen Corporation is GRANTED IN PART AND DENIED IN PART; 159 Motion to Intervene For Purpose of Submitting Proposed Special Verdict Form filed by Travelers Insurance Company of America is DENIED AS MOOT. Signed by District Judge William M. Conley on 9/19/2017. (bgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
AMERICAN DAIRY QUEEN
CORPORATION,
Plaintiff and Counter Defendant,
v.

OPINION AND ORDER
16-cv-323-wmc

UNIVERSAL INVESTMENT
CORPORATION,
Defendant and Counter Claimant.
The court held a final pretrial conference today during which the court heard
argument on reserved motions and directed the parties to file supplemental briefing on
certain issues. The purpose of this order is simply to formalize those rulings.

ORDER
IT IS ORDERED that:
1) Travelers Insurance Company of America’s motion to intervene for purposes of
submitting proposed special verdict form (dkt. #159) is DENIED AS MOOT.
2) The court will hear any additional evidence and argument on plaintiff American
Dairy Queen Corporation’s claim for injunctive relief under the Lanham Act
while the jury is deliberating on liability of the WFDL claims and, if necessary,
at the close of the jury trial.
3) American Dairy Queen Corporation has until end of day September 20, 2017,
to file a brief on Universal Investment Corporation’s standing to bring the Iowa
counterclaim; Universal’s response is due by end of day September 22, 2017.
Universal should also be prepared to make a proffer of damages on this claim
during a break during the first day or two of trial. If the court agrees Universal
has standing, this claim will proceed in a second phase before the same jury.
4) The previously reserved portion of American Dairy Queen’s motion in limine to
exclude argument relating to other Dairy Queen franchisees (dkt. #128) is
GRANTED IN PART AND DENIED IN PART, as follows:

a. The motion is denied as to ADQ’s request to preclude Universal from
arguing that evidence of non-compliance by out-of-state franchisees is
material to the jury’s determination of whether the termination was nondiscriminatory.
b. The motion is granted as to the admissibility of evidence of noncompliance which were not the basis for Universal’s termination (e.g.,
shelving placement and use of onions). In other words, Universal may
present evidence of non-compliance by other ADQ franchisees that
concern: (1) noncompliance with meat testing; (2) noncompliant soft
serve products; and (3) refusal to allow inspections or otherwise cooperate
with Dairy Queen.
5) The parties should file an amended joint deposition designation chart by end of
day September 20, 2017. In addition to filing the chart, the court requests that
the parties also email a version in word to Chambers at
[e-mail].
6) American Dairy Queen may submit all objections and proposed changes to the
court’s draft closing instructions by noon, Wednesday, September 20, 2017.
Universal’s response is due by noon, Thursday, September 21, 2017. In addition
to submitting a brief, American Dairy Queen should also file a redlined version
of its proposed edits to the closing instructions and email a version in word to
Chambers at [e-mail].
7) The parties should advise the court of any withdrawn exhibits or withdrawn
objections to defendant’s Exhibit 591 through end by 8:00 a.m. on Thursday,
September 21, 2017.
8) The court will hold a telephonic conference on September 21, 2017, at 9:00 a.m.
Counsel for American Dairy Queen to establish call to Chambers at 608-2645087.
Entered this 19th day of September, 2017.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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