Taidoc Tech. Corp. v. OK Biotech Co., Ltd., 2014 NCBC 48.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION MECKLENBURG COUNTY 12 CVS 20909
TAIDOC TECHNOLOGY CORPORATION,
Plaintiff, ORDER AND OPINION v. ON MOTIONS OK BIOTECH CO., LTD.,
Defendant.
{1} THIS MATTER is before the Court on the following motions: (i) Plaintiff’s
Motion for Reconsideration and Rehearing of Plaintiff’s Motion to Enforce
Deposition Subpoena and Compel Appearance at Deposition; (ii) Plaintiff’s Rule 52
Motion for Amended Findings of Fact and Amendment of June 10 Order on
Discovery Motions; (iii) Defendant’s Motion to Extend Deadline for Responses to
Taidoc’s RFAs or to Withdraw Default Admissions; (iv) Defendant’s Motion to
Unseal and Remove Confidentiality Designation From Deposition Transcripts and
Exhibits; (v) Defendant’s Rule 15 Motion to Amend its Twelfth Affirmative Defense;
and (vi) Plaintiff’s Motion to Modify CMO (collectively, “the Motions”). Each of the
Motions has been fully briefed, and the Court has considered the Motions, briefs
and arguments of counsel at the October 7, 2014 hearing in this matter.
Erwin, Bishop, Capitano & Moss, P.A., by Joseph W. Moss, Jr. and J. Daniel Bishop, for Plaintiff Taidoc Tech. Corp.
Hamilton Stephens Steele + Martin, PLLC, by Laura Barringer and Erik Rosenwood, for subpoenaed third-party Ramzi Abulhaj.
Prodigy Diabetes Care, by Andrew O’Hara, for subpoenaed third-parties Prodigy Diabetes Care and Richard Admani. Foley & Lardner LLP, by George C. Beck, Michael J. Lockerby, and Brian Kapatkin, and Clements Bernard PLLC, by Christopher L. Bernard and Lawrence A. Baratta, Jr., for Defendant OK Biotech Co., Ltd.
Bledsoe, Judge. I. BACKGROUND {2} Plaintiff Taidoc Technology Corporation and Defendant OK Biotech Co.,
Ltd. are competitors in the business of researching, developing and manufacturing
blood glucose meters and test strips. Diagnostic Devices, Inc. (“DDI”) and its
affiliate, Prodigy Diabetes Care, LLC (“Prodigy”), are distributors of diabetic
products, including blood glucose meters and test strips. DDI initially served as
distributor for certain of Plaintiff’s products and subsequently served as distributor
for certain of Defendant’s products. During the relevant period, DDI’s principals
were Ramzi Abulhaj (“Abulhaj”) and Richard Admani (“Admani”).
{3} In December 2008, DDI sued Plaintiff in the United States District Court
for the Western District of North Carolina (Case No. 3:08-cv-00559-RJC-DCK; later
consolidated with Case No. 3:08-cv-00149-MOC) (the “Federal Action”), claiming
Plaintiff had breached its distributorship agreement with DDI and asserting claims
against Plaintiff for alleged breach of contract, tortious interference with
prospective economic advantage, unfair competition under both state law and the
federal Lanham Act, and libel. In September 2011, Plaintiff asserted counterclaims
in the Federal Action against DDI, Abulhaj and Admani, alleging operative facts
similar to those advanced in the current action and advancing claims for breach of
contract, non-infringement, unfair competition, libel, fraud, misappropriation of trade secrets under N.C.G.S. § 66-152 et seq., unfair trade practices under N.C.G.S.
§ 75-1.1, unjust enrichment, fraudulent conveyance and false advertising under the
federal Lanham Act. The Federal Action was settled in March 2012 after a jury
verdict had been returned but prior to the entry of judgment. Prodigy, Abdulhaj
and Admani each testified at deposition, and Abdulhaj and Admani testified again
at trial, in the Federal Action.
{4} Plaintiff filed the instant action on December 6, 2012, alleging that
Defendant conspired with DDI, Prodigy, Abulhaj and Admani to misappropriate
Plaintiff’s trade secrets and asserting claims against Defendant for fraud (as a co-
conspirator), facilitating fraud, aiding and abetting fraud, misappropriation of trade
secrets under N.C.G.S. § 66-152 et seq., unfair trade practices under N.C.G.S. § 75-
1.1, tortious interference with contract, tortious interference with prospective
economic advantage and unjust enrichment. The designated deadline for the
completion of fact discovery in this case was September 10, 2014.
II. ANALYSIS Plaintiff’s Motion for Reconsideration and Rehearing of Plaintiff’s Motion to Enforce Deposition Subpoena and Compel Appearance at Deposition (“Motion I”)
{5} Plaintiff moves this Court pursuant to Rule 54(b) of the North Carolina
Rules of Civil Procedure and the Court’s inherent authority to amend its own orders
to reconsider and rehear Plaintiff’s May 8, 2014 Motion to Enforce Deposition
Subpoena and Compel Attendance at Deposition (“Motion to Compel Depositions”). {6} Plaintiff filed the Motion to Compel Depositions seeking to compel the
depositions of non-parties Prodigy, Admani and Abulhaj (collectively, the “Non-
Parties”). The Non-Parties objected to Plaintiff’s Motion on the grounds that
because the Non-Parties had testified at deposition and at trial in the earlier
Federal Action regarding many of the same facts and circumstances alleged in this
action, further depositions of the Non-Parties would be unduly burdensome,
cumulative and unnecessary.
{7} This Court (Murphy, J.) granted Plaintiff’s Motion to Compel Depositions
on June 10, 2014 (the “June 10 Order”), ordering that the Non-Parties could be
deposed “but only as to matters not addressed by prior depositions of [the Non-
Parties]” and that should Plaintiff choose to take depositions of any of the Non-
Parties, Plaintiff would be required to “bear the fees and costs associated with any
deposition, including attorney’s fees of the deposed [Non-Parties].” (June 10 Order,
¶¶ 2, 3.)
{8} A dispute has arisen between Plaintiff and the Non-Parties concerning the
scope of the examination permitted under the Court’s June 10 Order and the timing
and circumstances concerning the payment of the Non-Parties’ fees and costs.
{9} Plaintiff contends that the restrictions and conditions imposed on the
depositions of the Non-Parties in the June 10 Order are contrary to law and should
be stricken. Plaintiff further contends that the June 10 Order is ambiguous and
should be broadly construed and that the Court should clarify the June 10 Order for
the mutual benefit of the parties and the Non-Parties. {10} The Non-Parties and Defendant contend that the Plaintiff has not shown
the requisite circumstances permitting this Court to reconsider the June 10 Order
under applicable law and that, in any event, the June 10 Order is clear and
unambiguous and should be narrowly construed without further clarification.
{11} As an initial matter, our appellate courts have held that “[o]ne superior
court judge may only modify, overrule, or change the order of another superior court
judge where the original order was (1) interlocutory, (2) discretionary, and (3) there
has been a substantial change of circumstances since the entry of the prior order.”
Crook v. KRC Mgmt. Corp., 206 N.C. App. 179, 189, 697 S.E.2d 449, 456 (2010). “A
substantial change in circumstances exists if since the entry of the prior order,
there has been an intervention of new facts which bear upon the propriety of the
previous order. The burden of showing the change in circumstances is on the party
seeking a modification or reversal of an order previously entered by another judge.”
Id. (citations and quotation marks omitted). Accordingly, “where the trial court
fails to find that there has been a material change in circumstances, it has no
authority to modify the order of another judge.” Id., 206 N.C. App. at 190, 697
S.E.2d at 457; see generally Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189
S.E.2d 484, 488 (1972); First Fin. Ins. Co. v. Commercial Coverage, Inc., 154 N.C.
App. 504, 507, 572 S.E.2d 259, 262 (2002).
{12} The June 10 Order was a discretionary, interlocutory order by Judge
Murphy; thus, this Court may modify, overrule or change the June 10 Order only if
there has been a substantial change of circumstances since its entry. Based on the facts and circumstances presented, however, the Court concludes that nothing in
this litigation has occurred since June 10 to permit the Court to find that there has
been a substantial change in circumstances sufficient to permit the Court to modify,
overrule or change Judge Murphy’s June 10 Order.
{13} Although not permitted to modify, overrule or change the June 10 Order,
the Court nonetheless concludes that it does have the authority to interpret,
construe and enforce the June 10 Order according to its terms. See, e.g., Morley v.
Morley, 102 N.C. App. 713, 716, 403 S.E.2d 574, 575 (1991) (concluding that one
Superior Court Judge may construe an order entered by another Superior Court
Judge).
{14} The Court finds that the June 10 Order is potentially capable of differing
interpretations in certain respects and that it will assist the fair and efficient
administration of justice in this matter for the Court to construe the June 10 Order
to resolve the dispute reflected in Motion I.
{15} In construing the June 10 Order, the Court will, where appropriate, use
normal rules of contract construction. Thus, unambiguous terms will be given their
plain and ordinary meaning, see, e.g., Johnston County v. R.N. Rouse & Co., Inc.,
331 N.C. 88, 95, 414 S.E.2d 30, 34 (1992) (noting that “the most fundamental
principle of contract construction is that the courts must give effect to the plain and
unambiguous language of a contract”), and ambiguous terms will be construed in
light of the Court’s apparent purpose in entering the June 10 Order, see, e.g., Bolton
Corp. v. State, 95 N.C. App. 596, 600, 383 S.E.2d 671, 673-74 (1989) (explaining that “intention . . . is determined by the [contract] provisions . . . construed in light
of the . . . apparent purpose”); Wilson v. Wilson, 214 N.C. App. 541, 545, 714 S.E.2d
793, 796 (2011) (“[T]he trial court has the authority to construe or interpret an
ambiguous consent judgment and should consider normal rules of interpreting or
construing contracts.”); Hyde County Bd. of Educ. v. Mann, 250 N.C. 493, 498, 109
S.E.2d 175, 178-79 (1959) (“[W]here the language of a . . . judgment is ambiguous,
the courts will take into consideration all of the facts and circumstances existing at
the time of and leading up to the . . . entry of judgment.”).
{16} Based on the Court’s review of the June 10 Order, the Court concludes that
the limitation in the Order restricting Plaintiff’s depositions of the Non-Parties to
“matters not addressed by prior depositions of these witnesses” is intended to avoid
unnecessarily duplicative examinations of the Non-Parties and prevent Plaintiff
from posing the same questions about the same issues to the Non-Parties in the
hope of obtaining different responses from those received in the prior depositions.
(June 10 Order, ¶ 2.) Accordingly, the Court concludes that the June 10 Order
permits Plaintiff to ask any questions and engage in any specific line of inquiry that
was not pursued by Plaintiff in the prior depositions of the Non-Parties concerning
any document, thing, person, event or fact, provided such inquiry is consistent with
the requirements of Rule 26 and any other applicable rules of the North Carolina
Rules of Civil Procedure.
{17} The Court further concludes that a necessary implied term of the June 10
Order is that the Non-Parties’ fees and costs, including attorney’s fees, shall be reasonable under the circumstances and therefore that Plaintiff shall have the right
to contest the reasonableness of the Non-Parties’ fees and costs, including the Non-
Parties’ attorney’s fees, by motion to the Court prior to payment to the Non-Parties.
{18} Accordingly, the Court DENIES Plaintiff’s Motion I and orders the parties
and the Non-Parties to adhere to the terms of the June 10 Order as construed by
this Order.
Plaintiff’s Rule 52 Motion for Amended Findings of Fact and Amendment of June 10 Order on Discovery Motions (“Motion II”)
{19} In the June 10 Order, Judge Murphy also granted Plaintiff’s Rule 37
Motion to Compel Production of Documents (filed May 13, 2014) (“Plaintiff’s Motion
to Compel”) and denied Defendant’s Motion for Protective Order Staying Discovery
Until Plaintiff Sufficiently Identifies and Produces Documentation of its Alleged
“Trade Secrets” (filed May 27, 2014) (“Defendant’s Motion for Protective Order”).
{20} Plaintiff now moves this Court pursuant to Rules 52(b) and 54(b) of the
North Carolina Rules of Civil Procedure to make additional findings of fact and
award attorney’s fees to Plaintiff in accordance with the mandatory provisions of
Rule 37(a)(4) as a result of the entry of the June 10 Order.
{21} Plaintiff contends that it is entitled to a mandatory award of attorney’s
fees because Defendant’s conduct necessitating Plaintiff’s Motion to Compel was not
“substantially justified” under applicable law and because there is no evidence “of
other circumstances” that would make an award of attorney’s fees unjust. In
particular, Plaintiff contends that Defendant refused to produce any documents
responsive to Plaintiff’s First Request for Production of Documents, including documents that did not contain confidential information, and thereby caused
Plaintiff to incur substantial attorney’s fees in the total amount of $50,607 in
pursuing its successful Motion to Compel and defeating Defendant’s Motion for
Protective Order.
{22} Defendant argues in response that this Court (Murphy, J.) denied
Plaintiff’s request for attorney’s fees in the June 10 Order, that no new or changed
circumstances have arisen since the entry of the June 10 Order to warrant a
different result, and that, in any event, Plaintiff’s refusal to identify its trade
secrets substantially justified Defendant’s opposition to Plaintiff’s Motion to
Compel. Defendant also asserts that Plaintiff’s requested fees are unreasonable
and excessive and therefore should not be awarded by the Court.
{23} Based on a review of the record, it is clear that Plaintiff sought an award of
fees and costs both in Plaintiff’s Motion to Compel and in its supporting brief and
that Judge Murphy did not award Plaintiff any fees or costs in the June 10 Order.
{24} Specifically, Judge Murphy concluded in the June 10 Order that “Plaintiff
[was] entitled to the relief requested in its Motion to Compel . . . with reasonable
limitations,” ordered Defendant to produce documents within thirty (30) days,
“reserve[d] the right to reallocate costs of the discovery associated with Plaintiff’s
Motion to Compel,” and denied all other requested relief.
{25} Once a motion to compel under Rule 37(a)(2) is granted, Rule 37(a)(4)
provides that the moving party must be awarded expenses, including attorney’s
fees, unless the resisting party meets its burden to show that its conduct was “substantially justified” or that “an award was unjust under the circumstances.”
Graham v. Rogers, 121 N.C. App. 460, 462, 466 S.E.2d 290, 291 (1996). The June 10
Order does not include a finding concerning whether Defendant met its burden
here. Plaintiff argues that the Court’s failure to include the required finding under
Rule 37(a)(4) was a plain error of law, that Plaintiff has properly sought
amendment from the Court under Rule 52(b), and that this Court should therefore
determine that Defendant failed to meet its burden and award fees and costs to
Plaintiff.
{26} As noted in connection with Motion I, this Court is severely limited in its
ability to “modify, overrule or change the judgment of another Superior Court Judge
entered in the same action.” Calloway, 281 N.C. at 501, 189 S.E.2d at 488. Indeed,
our appellate courts have made very clear that “no appeal lies from one Superior
Court judge to another” and “one Superior Court judge may not correct another's
errors of law.” Id. As noted supra, absent a “substantial change in circumstances,”
this Court is not permitted to “modify, overrule or change” the June 10 Order. E.g.,
Crook, 206 N.C. App. at 189-90, 697 S.E.2d at 456-57; cf., e.g., Smithwick v.
Crutchfield, 87 N.C. App. 374, 376, 361 S.E.2d 111, 113 (1987) (upholding
subsequent order issued by a different judge in the same action where the
subsequent order was “rendered at a different stage of the proceeding,” did not
involve the same materials as those considered by the previous judge, and did not
“present the same question” as that raised by the previous order). {27} Based on the language of the June 10 Order, it appears clear to the Court
that Judge Murphy did not award or intend to award fees and costs to Plaintiff in
connection with Plaintiff’s Motion to Compel. It is also clear to the Court that
Plaintiff’s Motion II asks this Court to review the identical facts and legal
arguments that Judge Murphy considered, at the same stage of the proceedings,
and come to a contrary conclusion on the same factual and legal issues presented for
decision. The Court therefore concludes that to grant Plaintiff’s Motion II in these
circumstances would cause this Court to improperly “modify, overrule or change”
the June 10 Order without the requisite changed circumstances.
{28} Accordingly, the Court DENIES Plaintiff’s Motion II.
Defendant’s Motion to Extend Deadline for Responses to Taidoc’s RFAs or to Withdraw Default Admissions (“Motion III”)
{29} Plaintiff served its First Request for Admissions (“RFAs”) on March 6,
2014. By operation of Rules 6(e) and 36(a), Defendant’s responses were due on April
8, 2014. N.C.G.S. §§ 1A-1, Rules 6(e), 36(a). Defendant, however, did not file its
responses until July 8, 2014, and thus Plaintiff’s RFAs were deemed admitted
under Rule 36(a). Defendant now moves this Court for an order extending the
deadline for its responses retroactively to July 8 or, alternatively, to withdraw the
RFA admissions deemed admitted by default.
{30} Defendant appears to contend in its Motion III and supporting brief that it
did not timely serve its RFA responses because, although it had prepared responses
to the RFAs, it decided to delay service pending the resolution of the matters that
were to be heard by Judge Murphy on June 5. In its Reply, Defendant asserts for the first time that it did not timely serve its responses because of counsel’s
inadvertence and mistake. Piecing these together, it appears that Defendant’s
position is that it did not timely file its responses in April and May due to counsel’s
inadvertence or mistake, and then upon learning of the mistake in late May, elected
not to serve the then-prepared RFA responses on the theory that further delaying
service of the responses was justified by Defendant’s then-pending or soon-to-be-
filed Motion for Protective Order (which, the Court notes, did not specifically
mention Plaintiff’s RFAs).
{31} Rule 36(a) generally provides that a request for admission is admitted
unless the responding party makes a timely denial or objection. Rules 6(b) and
36(a) permit this Court to extend the period for a responding party to serve its
answers and objections, and Rule 36(b) provides that “a[]ny matter admitted under
this rule is conclusively established unless the court on motion permits withdrawal
or amendment of the admission.” N.C.G.S. §§ 1A-1, Rules 6(b), 36(a)-(b); see, e.g.,
Excel Staffing Serv., Inc. v. HP Reidsville, Inc., 172 N.C. App. 281, 285, 616 S.E.2d
349, 352 (2005) (“Rule 36 means exactly what it says. In order to avoid having the
requests deemed admitted, a party must respond within the specified time period.”).
Rule 36(b) specifically provides that the court may permit withdrawal or
amendment if “the presentation of the merits will be subserved thereby and the
party who obtained the admission fails to satisfy the court that withdrawal or
amendment will prejudice him in maintaining his action or defense on the merits.”
N.C.G.S. § 1A-1, Rules 36(b). {32} “Litigants in this state are required to respond to pleadings,
interrogatories and requests for admission with timely, good faith answers.” WXQR
Marine Broad. Corp. v. JAI, Inc., 83 N.C. App. 520, 521, 350 S.E.2d 912, 913 (1986).
The decision to permit withdrawal or amendment is within the sound discretion of
the trial court. See, e.g., Interstate Highway Express v. S&S Enters., Inc., 93 N.C.
App. 765, 769, 379 S.E.2d 85, 87 (1989) (“[T]he language of the rule clearly gives the
trial court the discretion to allow or not allow a party to withdraw admissions and
that in the exercise of that discretion it was not required to consider whether the
withdrawal of the admissions would prejudice plaintiff in maintaining its action.”).
{33} Based on the Court’s review of the materials of record, it appears to the
Court that, at best, Defendant elected to take a calculated risk that its conduct
would be excused in deciding to withhold service of its RFA responses, at least for
the period between late May and July 8, 2014, if not for the entire period following
its response deadline on April 8, 2014. Indeed, even viewing Defendant’s
explanation for its conduct in its best light, Defendant does not appear to have a
legitimate rationale or justification for withholding service of Defendant’s RFA
responses for another month after Judge Murphy’s June 10 Order denying
Defendant’s Motion for Protective Order. While Judge Murphy’s Order required
Defendant to produce documents requested in Plaintiff’s First Requests for
Production by July 8, the Order said nothing suggesting that Defendant could
further delay service of its responses to Plaintiff’s RFAs. Given that Defendant had
previously advised Plaintiff prior to the June 5 hearing that the RFA responses had already been prepared, Defendant had no basis to withhold service, even under its
own claimed rationales, after the June 10 Order.
{34} At the hearing, Defendant’s counsel advised that the following RFAs are
disputed by evidence in the record: RFAs 7, 8, 37, 38, and 42-46. Defendant’s
counsel also acknowledged at the hearing that none of the RFAs deemed admitted is
dispositive of any claim or defense in this action and thus that Defendant is not
prevented from defending against any of Plaintiff’s claims regardless of the outcome
of Defendant’s Motion III. In addition, Plaintiff’s counsel noted at the hearing that
Plaintiff has determined that RFA 3 seeks an admission that is inaccurate and that
Defendant has offered evidence that Defendant claims supports its contention that
RFAs 14-18 are not accurate as they relate to Exhibit A to the RFAs.
{35} Based on its review, the Court concludes, in the exercise of its discretion,
that the presentation of the merits of this action will be subserved by the
withdrawal of the admissions to Plaintiff’s RFAs 3, 7, 8, 14 (as it relates to Exhibit
A), 15 (as it relates to Exhibit A), 16, 17, 37, 38, and 42-46. The Court further
concludes that Plaintiff has not satisfied the Court that withdrawal of these
admissions will prejudice Plaintiff in maintaining this action on the merits. The
Court is not persuaded that the presentation of the merits of this action will be
subserved by the withdrawal or amendment of any of Defendant’s other admissions
and accordingly declines to exercise its discretion to permit the withdrawal or
amendment of Defendant’s other admissions. {36} Accordingly, the Court GRANTS Defendant’s Motion III as provided
herein.
Defendant’s Motion to Unseal and Remove Confidentiality Designation From Deposition Transcripts and Exhibits (“Motion IV”)
{37} Defendant contends that Plaintiff has inappropriately designated various
documents and certain deposition transcripts and exhibits as confidential under the
Consent Protective Order in this case, claiming that Plaintiff’s designations have
been over-inclusive and protected from disclosure information that is not
confidential. Plaintiff contends that its confidentiality designations are appropriate
under the Consent Protective Order, consistent with applicable law, and should not
be disturbed.
{38} Upon a review of the court file, the Court believes that it will likely be in a
better position to determine whether the challenged information is properly
designated as confidential after the completion of discovery.
{39} Further, Defendant’s counsel acknowledged at the hearing that all the
confidentiality designations Defendant challenges are of documents that have been
marked “CONFIDENTIAL” under the Consent Protective Order and that none of
the challenged information has been marked “CONFIDENTIAL – ATTORNEY’S
EYES ONLY.” As a result, under the terms of the Consent Protective Order,
Defendant is permitted to disclose the challenged information to Defendant’s
“agents, representatives and employees,” to “experts or consultants retained or
consulted by” Defendant or its counsel, and to “potential witnesses in this action,”
all as more specifically set forth in the Consent Protective Order. As such, it does not appear to the Court, and Defendant did not contend otherwise at the hearing,
that Defendant is or will be impaired in the defense of this action if the challenged
information remains under seal and designated as “CONFIDENTIAL” for a limited
period of time, including through the end of discovery period. Further, both parties
advised at the hearing that neither is aware of any media or other public interest in
this litigation.
{40} Accordingly, the Court concludes that it will not prejudice Defendant or be
adverse to the public interest for the Court to defer a ruling on Defendant’s Motion
IV through the end of the discovery period or until such other time as the Court
may determine. The Court therefore DEFERS a ruling on Defendant’s Motion IV
consistent with the terms of this Order.
Defendant’s Rule 15 Motion to Amend Its Twelfth Affirmative Defense (“Motion V”)
{41} Defendant seeks leave to amend its Twelfth Affirmative Defense to add an
additional ground for its affirmative defense of release. Plaintiff opposes
Defendant’s Motion V on the ground that the amendment is futile and therefore
should not be allowed.
{42} Rule 15(a) provides that leave to amend “shall be freely given when justice
so requires.” N.C.G.S. §§ 1A-1, Rule 15(a). For good cause shown, the Court
concludes that granting leave to amend is appropriate here, without prejudice to
Plaintiff’s right to seek dismissal of this amended affirmative defense on futility or
other grounds at a later stage of this proceeding.
{43} For the foregoing reasons, the Court GRANTS Defendant’s Motion V. Plaintiff’s Request for Case Management Conference and Motion to Modify Case Management Order (“Motion VI”)
{44} Plaintiff moves this Court to convene a case management conference and
make certain adjustments to the Case Management Order to modify the fact and
expert discovery schedules and extend the mediation and dispositive motion
deadlines.
{45} For good cause shown, the Court concludes that Plaintiff’s Motion VI
should be granted as provided herein.
{46} In light of the Court’s rulings on the Motions, the parties are directed to
meet and confer to attempt to reach agreement concerning a revised Case
Management Order. The parties will submit a joint proposal, or if the parties are
unable to reach agreement, each party will submit its own proposal, no later than
10 days after the entry of this Order. The Court will thereafter determine whether
a further case management conference is appropriate as it evaluates entry of a
revised Case Management Order.
{47} IT IS THEREFORE ORDERED, DECREED and ADJUDGED as follows:
a. Plaintiff’s Motion I is DENIED, and the parties and the Non-Parties are
ordered to adhere to the terms of the June 10 Order as construed by
this Order;
b. Plaintiff’s Motion II is DENIED;
c. Defendant’s Motion III is GRANTED as to Plaintiff’s Request for
Admissions 3, 7, 8, 14 (as it relates to Exhibit A), 15 (as it relates to
Exhibit A), 16, 17, 37, 38, and 42-46, and is otherwise DENIED; d. A ruling on Defendant’s Motion IV is DEFERRED through the end of
the discovery period or until such other time as the Court may
determine;
e. Defendant’s Motion V is GRANTED, without prejudice to Plaintiff’s
right to seek dismissal of Defendant’s amended twelfth affirmative
defense on futility or other grounds at a later stage of this proceeding;
f. Plaintiff’s Motion VI is GRANTED, with the parties to submit proposed
joint or individual revised Case Management Order(s) as provided in
g. Except as otherwise provided in this Order, each party shall bear the
costs and expenses incurred in connection with the Motions;
h. All other requested relief on the Motions is DENIED.
SO ORDERED, this the 9th day of October, 2014.