Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court has received "Plaintiff's Motion for Summary Judgment under the Uniform Commercial Code" (Doc. #23), Defendants' Response (Doc. #31) and Plaintiff's Reply (Doc. #34). Pursuant to Plaintiff's request and LRCiv 56.2, oral argument will be set on Tuesday, September 13, 2005 at 11:00 a.m. Additionally, the court will order the parties to supplement their respective statement of facts submitted with the motion and response. In paragraphs 36-40 of their statement of facts, Defendants cite to a deposition of Jim Fann, but they failed to attach a copy of the deposition. The court would like to review the deposition transcript. Further, Defendants state that after the tanks were backfilled, they discovered some of the rock did not conform to the specifications, after which they asked Qmax to remove and replace the nonconforming rock. Defendants, however, provide only vague details about this alleged event. They
Case 2:04-cv-00153-ECV Document 36 Filed 07/26/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States, for the Use and Benefit of) ) Qmax Co., an Arizona corporation, ) ) Plaintiff, ) ) vs. ) ) EPC Corporation, an Arizona corporation;) and Fidelity and Guaranty Insurance Co.,) ) a Wisconsin corporation, ) ) Defendants. ) )

No. CV 04-0153-PHX-ECV ORDER

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provide no dates regarding the discovery of the nonconformity or their communication with Qmax to remove and replace the nonconforming rock. Nor do they provide details about who they contacted at Qmax and how the contact was made. These vague factual assertions provided by Defendants are not helpful to the court and therefore Defendants will be given the opportunity to supplement their statement of facts. Likewise, Plaintiff will be given the opportunity to supplement its statement of facts. In paragraph 17, for example, Plaintiff contends that Defendants did not complain that some of the goods were nonconforming until "after the time for performance had expired." Plaintiff fails to state what this expiration date was. Moreover, the statement suggests that Defendants did complain about the nonconformity at some point but Plaintiff does not state when this occurred. For these reasons, both parties will be given the opportunity to supplement their statement of facts to provide the court with the facts necessary to make an informed ruling. After submitting a supplemental statement of facts, each side will have the opportunity to dispute the opposing parties factual assertions. IT IS THEREFORE ORDERED: (1) That oral argument on Plaintiff's Motion for Summary Judgment will be held on Tuesday, September 13, 2005 at 11:00 a.m. in Courtroom 304; (2) That each party shall submit a supplemental statement of facts in support of their respective motion and response on or before August 15, 2005; (3) That the parties attach to their supplemental statement of facts any documents used as sources for their facts, including letters and other records of correspondence; (4) That objections to the supplemental statements of fact may be file no later than August 31, 2005. DATED this 26th day of July, 2005.

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