Free Scheduling Order - District Court of Colorado - Colorado

Case 1:04-cv-00667-WDM-CBS
Case 1:04-cv-OO667 -WDM-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-O667-WDM-CBS

LINE-TEXT INTERNA nONAL, a California partnership,and EMPAQUES PLEGADIZOS MODERNOS S.A. de C.V ., a Mexican corporation; Plaintiffs and Counter-claimDefendants,

v.
WESTERN SLOPE INDUSTRIES, INC.,

a Colorado Corporation; Defendantsand Counter-claimant. SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES COUNSELAND PRO SE PARnES OF
The schedulingconferencein this causewas conductedJune28,2005, The attorneysand parties in this caseare: StephenB. Morris, MORRIS AND ASSOCIATES, 401 West A Street,Suite 2200 SanDiego, California 92101 619.239.1300 Attorneys for Plaintiffs and Cross-complaintDefendants: LINE TEXT INTERNATIONAL; a California partnership,and EMPAQUES PLEGADIZOS MODERNOS S.A. de C.V., a Mexican corporation.

Dennis E. Baker, John R. Mallory, CASTOR AND ASSOCIATES, 743 Horizon Court, Suite 204

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Grand Junction, Colorado 81506 970.242.1730 Attorneys for Defendantand Cross-claimant: WESTERN SLOPE INTERNATIONAL, INC. a Colorado corporation.

2. STATEMENT OF CLAIMS AND DEFENSES

a.

i) L TI and EPM claim that the purchaseagreements included the tenns contained in a letter from WSI to the Plaintiffs, offering perfonnanceand satisfaction guarantees, specifying when the machineswere to be installed and fully and operational. ii) L n and EPM claim that the purchaseagreements not include the tenns did containedin WSI's Exhibit F to its Answer and Cross-Claim. iii) L TI & EPM claim that L TI was not the agentof EPM with the legal capacity to bind EPM to contracts,and actedonly as an independent broker. iv) L TI and EPM claim that EPM was a specifically identified third party beneficiary of the agreements betweenLTI and WSI. v) L n and EPM claim that WSI failed to meetthe perfonnancedatescalled for in the agreements, having never installed any machinethat perfonned as it was required to perfonn. vi) L n and EPM claim that WSI and its machinesfailed to perform to the buyers' satisfactionas promisedin the purchaseagreements. vii) L n and EPM claim that WSI madenegligent misrepresentations about how much longer it would take to completeperfonnance,intending to inducethem not to purchasereplacement equipmentfrom anothervendor. Those representations were false, were reasonablyrelied upon, and causedstill further delaysto production when the promisedperfonnancedateswere not met. i) WSI claims that LTI and EPM did not give them a reasonable amountof time to completeperformancebefore declaring WSI in breachof the agreements. ii) WSI further claims that L TI was the agentof EPM and that EPM is in privity of contractwith WSI iii) WSI further claims that it was delayedin performanceby damagedoneto the machinesafter delivery to Mexico. iv) L TI and EPM claim that the purchaseagreements include the terms did containedin WSI's Exhibit F to its Answer and Cross-Claim.
Other Parties: None

b.

c.

3. UNDISPUTED FACTS The following facts are undisputed:

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PlaintiffEMPAQUES PLEGADIZOS MODERNOS S.A. de C.V. (EPM) is a corporation organizedand operatedunder Mexican law with its principal place of businessin Mexico. DefendantWESTERN SLOPEINDUSTRIES, INC. (WSI) is a corporation organizedand existing under the laws of Colorado and headquartered Grand in Junction, Colorado. WSI is a companyengagedin the designand manufactureof manufacturingand packing machineryto suit customerapplications. L TI is a broker of manufacturingand packing equipment,contractingwith factory customersand manufacturingcustomers arrangethe sale and installation of to equipmentrequiredby its factory customers. Prior to the Fall of 2002, L TI begandiscussions with WSI to arrangethe purchase and installation of four new bottle packing machinesand contractedto purchase the same. LTI issuedpurchaseordersfor four WSI packing machinesin December,2002. The first unit was deliveredto Mexico in September, 2003. BetweenDecemberof2002 and March 26, 2004, Lll and/or EPM made paymentsto WSI, paying a total of$I,580,183.00. On March 29,2004, LTI and EPM informed WSI was cancelling the order and demandinga refund of all sumspaid so far. WSI disputesLll and EPM's claims and hasnot refundedany of the money paid. EPM arrangedto purchasereplacement equipmentfrom R.A. Jones,a competitor ofWSI and contractedto spend$1,929,552.00 more for the four replacement machinesthan the original machinesfrom WSI would have cost.

2. 3.
4.

5,

6.

7.
8.

9.
10.

12.

The 3 delivered machineshave all beenreturnedto WSI.

4. COMPUTAnON OF DAMAGES
L TI claims it lost the profit it would have madeon the purchaseand resaleof the four machinesto EPM. Each of the four machineswere to be purchased $607,750.00and for allegedly resold for $698,900.00.The difference betweenthe purchaseand saleprices of the

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machinesallegedly represented profit at $91,150.00x 4 or $364,600.00, EPM, through L TI, paid installmentstotaling $1,580,153.00under the agreements and they claim they are entitled to return of all moneyspaid under the agreements. EPM further claims that by failing to perform on time, it was delayedin beginning performanceof the packing contract it bought the machinesto satisfy. EPM claims it was necessary purchasereplacementmachinesfrom R.A. Jonesat an increasedcost abovewhat to WSI's machinesshould have cost. The total cost for purchasingthe four machinesfrom R.A. Jonesratherthan WSI totaled $1,929,552.00 more than the four machineswould have cost under the agreements with WSI. WSI claims that L TI and EPM were prematurein demandingcompletion of performance and that their declarationofWSI's breachwas actually an anticipatory repudiationof the sales agreement, which WSI is entitled to contractdamages. for WSI claims contract damages the amountof $850,847.00,calculatedas the amount left in unpaid againstthe full amountof the four purchaseagreements when L TI and EPM declared WSI in breach.

5. REPORT OF PRECONFERENCE DISCOVERYAND MEETING UNDER FED. R. CIV. P. 26(1)

a.

Date of rule 26(f) meeting. June 8, 2005

b.

Namesof eachparticipant and party he/sherepresented. SteohenB. Morris. MORRIS AND ASSOCIATES. Attorneys for: LINE TEXT INTERNATIONAL; a California partnership,and EMPAQUES PLEGADIZOS MODERNOS S.A. de C.V., a Mexican corporation. Dennis E. Baker, CASTOR AND ASSOCIATES John R. Mallory. CASTOR AND ASSOCIATES. Attomexs for: WESTERN SLOPE INTERNATIONAL, INC. a Colorado corporation

c.

Proposed changes, ifany,
The partiesproposeno changes the timing or requirementof disclosuresunder to Fed. R. Civ. P. 26(a)(I)..

d.

The partieswill postmarktheir rule 26(a)(I) disclosureson or before June22,
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2005

e.

Given the natureof the caseand claims, no infonnal discovery procedures appeared appropriateand no agreements governing infonnal discovery were made.

6. CONSENT
The parties discussed option of referring this matter to a magistratejudge for all the purposes, pursuantto 28 V.S.C. §636 and D.C.COLO.LCivR 72.2 and respectfully chooseNOT TO CONSENT to such referenceunderthe circumstances the case. of Accordingly, all parties have not consented the exerciseof jurisdiction of a magistrate to judge.

7. CASEPLAN AND SCHEDULE

a.

Deadline for Joinder of Partiesand Amendmentof Pleadings:The deadlinefor joinder of partiesand for amendment pleadingsshall be August 12,2005. of Discovery Cut-off: All discovery to be completedby October 28,2005. Dispositive Motion Deadline: All dispostivemotions to be filed by November 28, 2005. Expert WitnessDisclosure Stateanticipatedfields of expert testimony, if any. The parties do not anticipate a need to designate expert witnessesin this case. Stateany limitations proposedon the use or number of expert witnesses. Not applicable.

b.

c.
d.

c.

Deposition Schedule:
Witness Merritt Kinsey: Curt Irvin Chris Heinrich Dan Calvert JoseLuis Villegas JoseManuel Huerta
~

i. ii iii iv v. vi.

ProQosed date August 25, 2005 August 24, 2005 August 24, 2005 August 24, 2005 August 26, 2005 August 26, 2005

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vii viii

Alejandro Gonzalez Mike Kochurga

August 29,2005 August 30, 2005

f.
g.
h

Interrogatory Schedule:All interrogatoriesto be completedsix weeksbefore discovery cut-off. Schedulefor Requestfor Productionof Documents:All requestsfor production of documentsto be servedwithin 60 daysof the SchedulingConference.

Discovery Limitations:
(1) Any limits which any party wishesto proposeon the number of depositions:none beyondthe generalrules of the FRCP. Any limits which any party wishesto proposeon the length of depositions: None Modifications which any party proposeson the presumptivenumbersof depositionsor interrogatoriescontainedin the federal rules: None. Limitations which any party proposeson numberof requestsfor production of documentsand/or requestsfor admissions:none beyondthe generalrules of the FRCP. Other Planning or Discovery Orders: WSI to submit to reasonable inspectionand examinationof the subjectequipmentwithin 60 days of the SchedulingConference.

(2)

(3)
(4)

(5)

8. SElTLEMENT
The partieshave beendiscussingthe parameters a potential settlementand have made of good progresstoward that end. The partieshave agreedto submit this matter to mediation and a tentative date of July 25,2005, in Denver, with "Jams" hasbeen set for that meeting.

9. OTHER SCHEDULINGISSUES
8.

A statementof thosediscovery or schedulingissues,ifany, on which counsel, after a good-faith effort, were unableto reachan agreement:None. Anticipated length of trial and whethertrial is to the court or jury. Five day bench trial.

b.

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10. DATES FOR FURTHER CONFERENCES

a.

A settlementconferencewill be held on September14, 2005 at 9:30 o'clock a.m.

It is herebyorderedthat all settlementconferences that take place before the magistrate judge shall be confidential.

(.

Pro se partiesand attorneysonly needbe present. Pro se parties,attorneys,and client representatives with authority to settle must be present. (NOTE: This requirementis not fulfilled by the presence counsel. If of an insurancecompanyis involved, an adjustorauthorizedto enter into settlement must also be present.) Each party shall submit a Confidential SettlementStatement the magistrate to judge on or before September 2005 outlining the facts and issuesin the case 8, and the party's settlementposition.

b.

Statusconferences will be held in this caseat the following datesand times:

c.

A final pretrial conferencewill be held in this caseon March 9, 2006 at 9:30 o'clock a.m. A Final Pretrial Order shall be preparedby the partiesand submitted to the court no later than five daysbefore the fmal pretrial conference.

11.OTHER MATTERS
In addition to filing an appropriatenotice with the clerk's office, counselmust file a copy of any notice of withdrawal, notice of substitutionof counsel,or notice of changeof counsel's addressor telephonenumberwith the clerk of the magistrate judge assignedto this case. In addition to filing an appropriatenotice with the clerk's office, a pro se party must file a copy of a notice of changeof his or her address telephonenumberwith the clerk of the or magistrate judge assignedto this case. With respectto discovery disputes,partiesmust comply with D.C.COLO.LCivR 7.IA. No motions shall be filed unlessthe party wishing to file a motion hasconferredwith counsel and if there is no resolution to the matter,the partiesshall then confer with the magistrate judge by telephoneconferenceprior to the motion being filed. The parties filing motions for extensionof time or continuances must comply with
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D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion hasbeenservedupon the moving attorney'sclient, all attorneysof record, and all pro se parties.

12. AMENDMENTS TO SCHEDULING ORDER
The schedulingorder may be alteredor amendedonly upon a showing of good cause.

DATED this

L

day Of~

-

2005.

APPROVED:

MORRIS AND ASSOCIATES 5/ StephenB. Morris 7/8/05 (oriainal sianatureon file) StephenB. Morris, 401 West A Street,Suite 2200 SanDiego, California 92101 619.239.1300 Attorneys for: LINE TEXT INTERNATIONAL; a California partnership,and EMPAQUES PLEGADIZOS MODERNOS S.A. de C.V., a Mexican corporation. CASTOR AND ASSOCIATES stDennis Baker E. 7/8/06 (originalsignatureon file) Dennis E. Baker, John R. Mallory, 743 Horizon Court, Suite 204 Grand Junction,Colorado 81506 970.242.1730 Attorneys for: WESTERN SLOPE INTERNATIONAL, INC. a Colorado corporation.

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