Free Proposed Scheduling Order - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04 WM-0667 (CBS) LINE-TEXT INTERNATIONAL, a California partnership, EMPAQUES PLEGADIZOS MODERNOS S.A. de C.V., a Mexican corporation; Plaintiffs, v. WESTERN SLOPE INDUSTRIES, INC., a Colorado Corporation; Defendant. SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES The scheduling conference in this cause was conducted June 28, 2005. The attorneys and parties in this case are: Stephen B. Morris, MORRIS AND ASSOCIATES, 401 West A Street, Suite 2200 San Diego, California 92101 619.239.1300 Attorneys for: LINE TEXT INTERNATIONAL, INC.; a California corporation, LINE TEXT INTERNATIONAL; a California partnership, and EMPAQUES PLEGADIZOS MODERNOS S.A. de C.V., a Mexican corporation. Dennis E. Baker, 1

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John R. Mallory, CASTOR AND ASSOCIATES, 743 Horizon Court, Suite 204 Grand Junction, Colorado 81506 970.242.1730 Attorneys for: WESTERN SLOPE INTERNATIONAL, INC. a Colorado corporation. 2. STATEMENT OF CLAIMS AND DEFENSES a. i) LTI and EPM claim that the purchase agreements included the terms contained in a letter from WSI to the Plaintiffs, offering performance and satisfaction guarantees, and specifying when the machines were to be installed and fully operational. ii) LTI and EPM claim that the purchase agreements did not include the terms contained in WSI's Exhibit F to its Answer and Cross-Claim. iii) LTI & EPM claim that LTI was not the agent of EPM with the legal capacity to bind EPM to contracts, and acted only as an independent broker. iv) LTI and EPM claim that EPM was a specifically identified third party beneficiary of the agreements between LTI and WSI. v) LTI and EPM claim that WSI failed to meet the performance dates called for in the agreements, having never installed any machine that performed as it was required to perform. vi) LTI and EPM claim that WSI and its machines failed to perform to the buyers' satisfaction as promised in the purchase agreements. vii) LTI and EPM claim that WSI made negligent misrepresentations about how much longer it would take to complete performance, intending to induce them not to purchase replacement equipment from another vendor. Those representations were false, were reasonably relied upon, and caused still further delays to production when the promised performance dates were not met. viii) LTI, EPM and LINE TEXT INTERNATIONAL, INC. all claim that the subject agreements were made with and through LINE TEXT INTERNATIONAL, a California partnership, and that the new California corporation, LINE TEXT INTERNATIONAL, INC. was and is a complete stranger to the subject agreements and dispute. i) WSI claims LTI and EPM entered into and breached the contract for purchase and sale of the subject machinery. ii) WSI claims that LTI and EPM did not give them a reasonable amount of time to complete performance before declaring WSI in breach of the agreements. iii) WSI further claims that LTI was the agent of EPM and that EPM is in privity of contract with WSI. iv) WSI further claims that it was delayed in performance by damage done to the 2

b.

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machines after delivery to Mexico. v) WSI claims that the defunct California corporation called LINE TEXT INTERNATIONAL, INC. is the same entity with which it conducted business in the subject sales agreements. vi) WSI claims that the purchase agreements did include the terms contained in WSI's Exhibit F to its Answer and Cross-Claim. c. Other Parties: None 3. UNDISPUTED FACTS The following facts are undisputed: 1. Plaintiff EMPAQUES PLEGADIZOS MODERNOS S.A. de C.V. (EPM) is a corporation organized and operated under Mexican law with its principal place of business in Mexico. Defendant WESTERN SLOPE INDUSTRIES, INC. (WSI) is a corporation organized and existing under the laws of Colorado and headquartered in Grand Junction, Colorado. WSI is a company engaged in the design and manufacture of manufacturing and packing machinery to suit customer applications. LTI is a broker of manufacturing and packing equipment, contracting with factory customers and manufacturing customers to arrange the sale and installation of equipment required by its factory customers. Prior to the Fall of 2002, LTI began discussions with WSI to arrange the purchase and installation of four new bottle packing machines and eventually contracted to purchase the same. LTI issued purchase orders for four WSI packing machines in December, 2002. The first unit was delivered to Mexico in September, 2003. Between December of 2002 and March 26, 2004, LTI and/or EPM made payments to WSI, paying a total of $1,580,183.00. On March 29, 2004, LTI and/or EPM informed WSI it was canceling the order and demanding a refund of all sums paid so far. WSI disputes LTI and EPM's claims and has not refunded any of the money paid. 3

2.

3. 4.

5.

6. 7. 8. 9. 10.

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4. COMPUTATION OF DAMAGES LTI claims it lost the profit it would have made on the purchase and resale of the four machines to EPM. Each of the four machines were to be purchased for $607,750.00 and allegedly resold for $698,900.00. The difference between the purchase and sale prices of the machines allegedly represented profit at $91,150.00 x 4 or $364,600.00. EPM, through LTI, paid installments totaling $1,580,153.00 under the agreements and they claim they are entitled to return of all moneys paid under the agreements. EPM further claims that by failing to perform on time, it was delayed in beginning performance of the packing contract it bought the machines to satisfy. EPM claims it was necessary to purchase replacement machines from R.A. Jones at an increased cost above what WSI=s machines should have cost. The total cost for purchasing the four machines from R.A. Jones rather than WSI totaled $1,929,552.00 more than the four machines would have cost under the agreements with WSI. WSI claims that LTI's and EPM's declaration of WSI's breach was actually an anticipatory repudiation, for which WSI is entitled to contract damages. WSI claims contract damages in the amount of $850,847.00, calculated as the amount left unpaid against the full amount of the four purchase agreements when LTI and EPM declared WSI in breach. 5. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. Date of rule 26(f) meeting. June 8, 2005 b. Names of each participant and party he/she represented. Stephen B. Morris, MORRIS AND ASSOCIATES, Attorneys for: LINE TEXT INTERNATIONAL, INC.; a California corporation, 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, Attorneys for: WESTERN SLOPE INTERNATIONAL, INC. a Colorado corporation. 4

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c.

Proposed changes, if any, The parties propose no changes to the timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1)..

d. e.

The parties will postmark their rule 26(a)(1) disclosures on or before June 22, 2005. Given the nature of the case and claims, no informal discovery procedures appeared appropriate and no agreements governing informal discovery were made. 6. CONSENT

The parties discussed the option of referring this matter to a magistrate judge for all purposes, pursuant to 28 U.S.C. 636 and D.C.COLO.LCivR 72.2 and respectfully choose NOT TO CONSENT to such reference under the circumstances of the case. Accordingly, all parties have not consented to the exercise of jurisdiction of a magistrate judge. 7. CASE PLAN AND SCHEDULE a. b. c. d. Deadline for Joinder of Parties and Amendment of Pleadings: The deadline for joinder of parties and for amendment of pleadings shall be August 12, 2005. Discovery Cut-off: All discovery to be completed by October 28, 2005. Dispositive Motion Deadline: All dispostive motions to be filed by November 28, 2005. Expert Witness Disclosure (1) ` State anticipated fields of expert testimony, if any.

The parties do not anticipate a need to designate expert witnesses in this case. (2) State any limitations proposed on the use or number of expert witnesses.

Not applicable. e. Deposition Schedule:

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The parties anticipate the identify of witnesses to be deposed will be disclosed in their mutual disclosures of June 22, 2005. Upon such mutual disclosure, the parties will coordinate a detailed schedule for the conduct and completion of all depositions. f. g. h. Interrogatory Schedule: All interrogatories to be completed six weeks before discovery cut-off. Schedule for Request for Production of Documents: All requests for production of documents to be served within 60 days of the Scheduling Conference. Discovery Limitations: (1) (2) (3) (4) Any limits which any party wishes to propose on the number of depositions: none beyond the general rules of the FRCP. Any limits which any party wishes to propose on the length of depositions: None Modifications which any party proposes on the presumptive numbers of depositions or interrogatories contained in the federal rules: None. Limitations which any party proposes on number of requests for production of documents and/or requests for admissions: none beyond the general rules of the FRCP. Other Planning or Discovery Orders: WSI to submit to reasonable inspection and examination of the subject equipment within 60 days of the Scheduling Conference. 8. SETTLEMENT The parties have been discussing the parameters of a potential settlement and have made good progress toward that end. The parties have agreed to submit this matter to mediation and a date of ___________, 2005 has been set for that meeting. 9. OTHER SCHEDULING ISSUES a. b. A statement of those discovery or scheduling issues, if any, on which counsel, after a good-faith effort, were unable to reach an agreement: None. Anticipated length of trial and whether trial is to the court or jury. Five day bench trial. 6

(5)

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10. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on________________________ at ______ o'clock __.m.

It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) ( ) Pro se parties and attorneys only need be present. Pro se parties, attorneys, and client representatives with authority to settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.) Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before _______________ outlining the facts and issues in the case and the party's settlement position.

( )

b.

Status conferences will be held in this case at the following dates and times: __________________________________________________________________ __________________________________________________________________ c. A final pretrial conference will be held in this case on __________________at _____ o'clock __.m. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 11. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the 7

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moving attorney's client, all attorneys of record, and all pro se parties. 12. AMENDMENTS TO SCHEDULING ORDER The scheduling order may be altered or amended only upon a showing of good cause. DATED this ______ day of _____________ 2005. BY THE COURT:

_______________________________ United States Magistrate Judge

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APPROVED:

MORRIS AND ASSOCIATES ________________________ Stephen B. Morris, 401 West A Street, Suite 2200 San Diego, California 92101 619.239.1300 Attorneys for: LINE TEXT INTERNATIONAL, INC.; a California corporation, LINE TEXT INTERNATIONAL; a California partnership, and EMPAQUES PLEGADIZOS MODERNOS S.A. de C.V., a Mexican corporation. CASTOR AND ASSOCIATES, P.C. ______________________________ 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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