Mailing & Shipping Systems, Inc. v. Neopost USA, Inc.

292 F.R.D. 369, 85 Fed. R. Serv. 3d 364, 2013 WL 1314328, 2013 U.S. Dist. LEXIS 44910
District Court, W.D. Texas·Decided March 28, 2013·No. No. EP-12-CV-37-KC·Published·Cited by 3 cases

Opinion

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered Plaintiffs Motion for Leave to File a Second Amended Complaint, ECF No. 36, in the above-captioned ease. For the reasons set forth below, Plaintiffs Motion is GRANTED.

To cure potential prejudice to Defendant, however, trial in this ease will be postponed. The Court will provide the parties with the opportunity to conduct limited discovery, file dispositive motions, and participate in alternative dispute resolution (“ADR”). The scope of all future discovery, dispositive motions, and AD R in this case will be confined strictly to matters relating to the two new claims raised in Plaintiffs proposed Second Amended Complaint. The claims previously raised in Plaintiffs First Amended Complaint will be addressed by the Court’s forthcoming Order on Defendant’s original Motion for Summary Judgment, ECF No. 29.

Accordingly, the Court’s previous Scheduling Order, ECF No. 13, and Trial Preparation Order, ECF No. 14, are hereby VACATED. Modified deadlines for discovery, dispositive motions, and ADR are set forth below. The Court will specify a new trial date and new deadlines for the filing of the trial memoranda required by Local Rule CV-16(e) and (f) upon the resolution of the parties’ dispositive motions.

I. BACKGROUND1

On January 27, 2012, Plaintiff filed a petition and a request for a temporary restraining order in County Court at Law No. 3 in El Paso County, Texas. See Def.’s Notice of Removal 12, ECF No. 1. In its original petition, Plaintiff brought various claims against Defendant, each of which related to a dealership agreement that had governed business relations between Plaintiff and Defendant since 1988. Id. On February 6, 2012, Defendant filed a Notice of Removal and invoked this Court’s diversity jurisdiction under 28 U.S.C. § 1332. Id. at 3.

In accordance with Rule 16(b) of the Federal Rules of Civil Procedure, this Court issued a Scheduling Order on June 1, 2012. Scheduling Order, ECF No. 13. Pursuant to the parties’ joint request, Plaintiffs deadline to file motions to amend its pleadings was set for June 11, 2012. See Report of Parties’ Planning Meeting 4, ECF N o. 8; Scheduling Order 1. On the day of the deadline, Plaintiff timely filed its First Amended Complaint, ECF No. 17. This First Amended Complaint did not include any specific counts, but generally repeated the allegations raised by Plaintiffs petition in state court.

On December 7, 2012, Defendant filed a Motion for Summary Judgment, in which Defendant addressed each of the claims rea[372]*372sonably discernible from the allegations in Plaintiffs First Amended Complaint. See Def.’s Mot. These included Plaintiffs claims for fraud, violations of the Deceptive Trade Practices Act (“DTPA”), violations of the duty of good faith and fair dealing, and two different breaches of contract. Id. at 10-19. The claims for breaches of contract included, first, a claim that Defendant had tenmnated the dealership agreement without providing adequate notice to Plaintiff and, second, a claim that Defendant had failed to prevent rival dealers of Defendant’s postage meters and mailing machines from conducting business within Plaintiffs designated territory. Id. at 11-14.

Two weeks after Defendant’s Motion for Summary Judgment was filed, on December 18, 2012, Defendant’s vice president submitted to a deposition in Connecticut by Plaintiffs counsel. See Pl.’s Resp. 49, ECF No. 38; Pl.’s Reply 2, ECF No. 42. This deposition occurred more than forty days after the Court’s deadline to conclude discovery on November 7, 2012. See Scheduling Order 1. As Plaintiff explains, however, Defendant voluntarily made its vice president available for the deposition pursuant to an “agreement of counsel.” Pl.’s Reply 2. During this deposition, Defendant’s vice president acknowledged that Defendant would continue to make use of the “customer information” previously used by Plaintiff during his time as Defendant’s dealer. Pl.’s Resp. 63-66. Defendant’s vice president confirmed that this “customer information” would ordinarily be supplied to the new dealer of Defendant’s postage meters and mailing machines assigned to Plaintiffs territory. Id. at 66. The replacement dealer would then ordinarily be authorized to make sales to Plaintiffs former customers. Id.

In an apparently unrelated incident several weeks later on January 4, 2013, Plaintiff allegedly retrieved a document from Defendant’s “DealerNet” website. See Pl.’s Reply 2-3, 5-6. According to Plaintiff, this document demonstrates that Defendant continues to owe Plaintiff $9,577.61 in unpaid commissions under the dealership agreement. Id. Plaintiff concedes that it was already able to access Defendant’s website at an earlier stage of this litigation. Id. at 3. Plaintiff alleges, however, that the retrieved document’s significance was never fully “discussed with counsel” until this late date. Id. at 3. Defendant has not yet acknowledged this retrieved document or discussed its significance.

Ten days later, on January 14, 2013, Plaintiff filed its Motion for Leave to File a Second Amended Complaint. In the proposed Second Amended Complaint, Plaintiff introduces two new claims based, first, on the deposition of Defendant’s vice president on December 18, 2012, and, second, on the document allegedly retrieved from Defendant’s website on January 4, 2013. In its first new claim, Plaintiff requests relief for Defendant’s alleged breach of the dealership agreement by the sharing of Plaintiffs “customer data ... with other dealers who were assigned to take over the Plaintiffs territory.” Pl.’s Mot. 6. In its second new claim, Plaintiff requests that the Court award it $9,577.61 in “commissions earned but not paid” to Plaintiff under the dealership agreement. See Pl.’s Mot. 7; Pl.’s Resp. 94, 96-97; Pl.’s Reply 2-3.

Besides raising these two new claims for breach of contract, Plaintiffs Second Anend-ed Complaint also maintains Plaintiffs original claims for breach of contract relating to Defendant’s alleged failures to provide Plaintiff with sufficient notice of termination and prevent rival dealers’ encroachment on Plaintiffs designated territory. Pl.’s Mot. 6. Plaintiff also maintains his claim regarding Defendant’s breach of the duty of good faith and fair dealing. Id. at 7. Plaintiffs Motion explicitly waives, however, all its previous claims for fraud and DTPA violations. Pl.’s Mot. 1; see also Pl.’s Resp. 10.

In its Response, Defendant argues that Plaintiffs Motion for Leave to File a Second Amended Complaint should be denied under Rules 16(b) and 15(a) of the Federal Rules of Civil Procedure. See Def.’s Resp. 5-9, ECF No. 40. In Defendant’s view, the Court should resolve this case based exclusively on the claims discernible from Plaintiffs First Amended Complaint, all of which were already addressed in Defendant’s Motion for Summary Judgment on December 7, 2012. [373]*373See id. at 10.

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Mailing & Shipping Systems, Inc. v. Neopost USA, Inc., 292 F.R.D. 369, 85 Fed. R. Serv. 3d 364, 2013 WL 1314328, 2013 U.S. Dist. LEXIS 44910 (W.D. Tex. 2013).

292 F.R.D. 369 (Mailing & Shipping Systems, Inc. v. Neopost USA, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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