Oregon Potato Company v. Kerry Inc.

Filing 201

ORDER denying 199 Motion for Reconsideration by Plaintiff Oregon Potato Company. Signed by District Judge James D. Peterson on 1/14/2022. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

OREGON POTATO COMPANY, doing business as
RADER FARMS,
Plaintiff,

OPINION and ORDER

v.

20-cv-92-jdp

KERRY INC.,
Defendant.

This case is scheduled for trial on claims that defendant Kerry, Inc. breached its contract
with Oregon Potato Company, which calls itself OPC, by failing to timely deliver yogurt cubes
that OPC used for its at-home smoothie mixes. Now OPC moves for reconsideration of multiple
issues addressed in the summary judgment opinion. Dkt. 199. Specifically, OPC challenges the
court’s conclusions that OPC forfeited its right to three categories of damages and abandoned
claims based on any failure to deliver goods before May 31, 2019. OPC also challenges the
court’s reliance on WIS JI-CIVIL 3048. For the reasons explained below, the court will deny
the motion for reconsideration.

ANALYSIS
A. Timeliness of motion
As an initial matter, OPC’s motion is untimely. The court issued the summary judgment
opinion a month ago, yet OPC waited to file its motion until the same day the parties’ motions
in limine and other pretrial submissions are due. If the court allowed OPC to reinsert issues
that the court had already resolved, it would be unfairly prejudicial to Kerry, which has been
preparing for trial based on the reasonable belief that those issues were no longer in play. The

court would have to give Kerry an opportunity to file new motions in limine and update its
trial submissions, which would take time away from other trial preparation and potentially
cause delay. OPC identifies no reason why it waited a month to file a 12-page motion that
doesn’t involve complicated arguments but does have significant implications for trial. For this
reason alone, I would not grant OPC relief now. But OPC’s motion fails on the merits too.
B. Damages
OPC challenges the court’s conclusion that OPC forfeited its right to three categories
of damages: (1) damages related to any yogurt cube flavors other than the five requested in the
purchase orders at issue; (2) damages related to reformulating and relaunching the smoothie
mixes because OPC began reformulating its mixes before any alleged breaches; and (3) royalty
fees that OPC had to pay Focus because OPC would have had to pay those anyway. Kerry had
moved for summary judgment on each of those categories, and it explained in its opening brief
why it believed that OPC hadn’t adequately supported those damages. Dkt. 118, at 64–69.
OPC didn’t respond to any of those arguments, relying on what it called “the Court’s
Bifurcation Order,” and contending that the arguments were “inappropriate” until “after
liability has been resolved.” Dkt. 157, at 44. The court rejected that view because the court
hadn’t issued an order bifurcating liability and damages issues for the purpose of discovery or
summary judgment. Dkt. 181, at 30. Because it is well-established in this circuit that a party
forfeits an argument that it doesn’t respond to, see Citizens for Appropriate Rural Roads v. Foxx,
815 F.3d 1068, 1078 (7th Cir. 2016), the court granted Kerry’s motion for summary judgment
on these damages issues.
OPC challenges the court’s conclusion on three grounds. First, it denies that it argued
that liability and damages issued were bifurcated for the purpose of discovery and summary

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judgment. But that’s incorrect. That is the only argument that OPC raised in its opposition
brief in response to Kerry’s arguments about the three categories of damages at issue. Dkt. 157,
at 44–45. The first paragraph of that section of OPC’s brief shows this:
In accordance with the Court’s Bifurcation Order, OPC shall
properly address its damages when it is appropriate, including the
proof of damages issues that Kerry has sought to raise in its
pending Motion for Summary Judgment. For example, at the
damage stage of the case pursuant to the Bifurcation Order, OPC
will address: OPC’s lost profits, OPC’s flavors of JAHS subject to
losses, OPC’s costs to reformulate the JAHS, OPC’s earnings to
set off by the Royalty Payment, the foreseeability of OPC’s
compensatory damages at the end of the Contracts, and OPC’s
entitlement to punitive damages. Kerry’s efforts to raise all those
issues now, in great detail, in its Motion for Summary Judgment
is inappropriate, and its Motion should be denied on each, as set
forth below.
Id. at 44. OPC then went on to argue that Kerry’s arguments on damages should be rejected
“until the parties can properly take discovery on the issue of damages pursuant to this Court’s
Bifurcation Order entered in this Lawsuit” and that “Kerry’s Motion on damages is improper
at this juncture” and “currently not relevant.” Id. at 45. OPC concluded by asking the court
“to defer Kerry’s arguments on damages until later, and allow OPC to respond appropriately
at that time.” Id. But the court denied OPC’s request because the court hadn’t limited the
parties’ right to seek summary judgment on damages issues. OPC doesn’t argue now that there
was any basis for its request to defer, so there is no basis for seeking reconsideration.
Second, OPC says that the court “found that OPC sufficiently put forth the existence
of the three categories of damages” at issue when the court rejected Kerry’s contention that it
was entitled to summary judgment because OPC hadn’t proven any damages. Dkt. 200, at 4.
That’s also incorrect. The court concluded only that OPC had adduced some evidence of
damages so that Kerry wasn’t entitled to dismissal of the entire case on that ground. In reaching

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that conclusion, the court relied on evidence that OPC lost accounts as a result of delays in
fulfilling orders and that all of the packaging and product it had already produced went to
waste. Dkt. 181, at 20. The court made no findings about specific yogurt cube flavors, the costs
of reformulating or relaunching the smoothie mixes, or royalty fees.
Third, and finally, OPC says that it cited evidence of damages in its briefs in support of
its own motion for summary judgment. But OPC’s own motion for summary judgment was
addressing the general issue whether OPC suffered any damages as a result of the alleged
breaches. See Dkt. 145-3, at 24–27. OPC’s summary judgment brief doesn’t discuss the specific
categories of damages that Kerry challenged in its summary judgment motion.
Even if the court were to consider OPC’s motion for reconsideration as a supplemental
summary judgment brief, OPC’s argument would still fail. OPC’s motion cites numerous
documents that it says are evidence of its damages, but it still fails to respond to any of the
arguments that Kerry made about why OPC isn’t entitled to damages for the three categories
identified above. Specifically, OPC doesn’t explain why it is entitled damages related to flavors
it didn’t order during the relevant time, it doesn’t deny that it decided to reformulate its
products without Kerry’s yogurt cubes before the alleged breaches, and it doesn’t deny that it
would have paid the same royalty fees regardless of whether Kerry breached the contract. So
the court adheres to its conclusion that OPC forfeited its right to these categories of damages.
C. Scope of OPC’s claims
The court concluded in the summary judgment opinion that OPC had abandoned any
claims that Kerry breached its agreements before May 31, 2019, because OPC’s arguments
were focused on breaches that occurred after that date, and OPC identified July 1 and July 15
as “[t]he promised ship dates for the Contracts” in its opposition to Kerry’s motion for

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summary judgment. Dkt. 181, at 7. OPC says that it did not intend to abandon claims based
on earlier dates, but it doesn’t point to any evidence from its summary judgment opposition
brief suggesting that it was continuing to assert those claims. In any event, even if OPC didn’t
mean to abandon those claims, the court would have dismissed them because it is undisputed
that OPC agreed to waive all of the earlier fulfillment dates. M & I Marshall & Ilsley Bank v.
Pump, 88 Wis. 2d 323, 330, 276 N.W.2d 295, 298 (1979) (time for performance can be waived
by agreeing to an extension).
D. Wisconsin Jury Instruction
OPC says that the court erred by relying on WIS JI-CIVIL 3048 because that
instruction doesn’t apply to claims under the Uniform Commercial Code. But OPC neither
explains what it believes the appropriate standard is nor identifies any specific conclusions it
wishes to challenge from the summary judgment opinion. So there is nothing to reconsider at
this point. Of course, OPC is free to propose a different instruction at trial, supported by
appropriate authority.

ORDER
IT IS ORDERED that the motion for reconsideration filed by Oregon Potato Company,
Dkt. 199, is DENIED.
Entered January 14, 2022.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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