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Inc. v. Quiktrip Corporation

United States District Court, D. Nebraska

January 25, 2017

BUCK'S, INC., Plaintiff,
v.
QUIKTRIP CORPORATION, an Oklahoma Corporation Defendant.

          ORDER ON FINAL PRETRIAL CONFERENCE

          F.A. Gossett, III United States Magistrate Judge

         A final pretrial conference was held on the 20th day of October, 2016. Appearing for the parties as counsel were:

         Kristopher J. Covi, counsel for Plaintiff Buck's, Inc. ("Buck's" or "Plaintiff');

         Robert Slovek and Amy L. Van Home, counsel for Defendant QuikTrip Corporation ("QuikTrip" or "Defendant").

(A) Exhibits.[1]See attached Joint Trial Exhibit List.
(B) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:
1. The property in dispute is located at Interstate 80 and Highway 370 ("Property").
2. The Property was owned by James Murray, or an entity owned or controlled by James Murray, Murray Fields Sapp ("Seller").
3. Lee Ehlers was the real estate broker for Seller.
4. Jerry Huber was the real estate broker for QuikTrip.
5. Michael Earl was the real estate broker for Buck's.
6. James Murray desired to sell the Property.
(C) Controverted Facts and Unresolved Issues.[2]
1. Whether Buck's had a valid [legally sufficient] business expectancy to purchase the Property from Seller.
2. Whether QuikTrip knew of Buck's interest in the Property.
3. Whether QuikTrip committed an unjustified intentional act of interference.
4. Whether the [alleged] interference caused harm to Buck's.
5. Whether Buck's suffered damage as a result of [alleged] unjustified interference by QuikTrip and the amount of those [alleged] damages.
6. Whether Plaintiff failed to use reasonable care and diligence to mitigate its own damages.
7. Whether Plaintiff is entitled to the remedy of a constructive trust as a matter of law because QuikTrip obtained title to the Property by fraud, misrepresentation or abuse of an influential or confidential relationship.
8. Whether QuikTrip is entitled to quiet title in the Property.

(D) Witnesses.[3]All witnesses, including rebuttal witnesses, expected to be called to testify by Plaintiff, except those who maybe called for impeachment purposes as defined in NECivR 16.2(c) only, are:

Name

Address

Steven J. Buchanan

Omaha, NE

Nichole Mallett

Omaha, NE

Michael Earl

Omaha, NE

Jerry Huber

Omaha, NE

Lee Ehlers

Omaha, NE

James Murray

Omaha, NE

Michael Talcott

Gardner, KS

Kelly Vaughan

Waxhaw, NC

         In addition to any witnesses who may be called solely to establish foundation for an exhibit, Plaintiff may call the following witnesses if the need arises:

Name

Address

John Perlebach

Omaha, NE

         All witnesses, including rebuttal witnesses, expected to be called to testify by Defendant, except those who may be called for impeachment purposes as defined in NECivR 16.2(c) only, are:

Name

Address

James Murray

Omaha, NE

Michael C. Talcott

Gardner, KS

Kelly P. Vaughan

Waxhaw, NC

Jerry Huber

Omaha, NE

Lee Ehlers

Omaha, NE

Michael Earl

Omaha, NE

John Perelebach

Omaha, NE

Nichole Mallett

Omaha, NE

Steven J. Buchanan

Omaha, NE

Michael P. "Fuzzy" White

Kansas City, MO

         In addition to any witnesses who may be called solely to establish foundation for an exhibit, Defendant may call the following witnesses if the need arises:

Name

Address

Name

None

         Any witness identified above by Plaintiff.

         (E) Expert Witnesses' Qualifications.

         Experts to be called by Plaintiff and their qualifications are: No expert witnesses will be called by Plaintiff.

         Experts to be called by Defendant and their qualifications are: No expert witnesses will be called by Defendant.

         (F) Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure 47(a) and NECivR 47.2(a) and suggest the following with regard to the conduct of juror examination:

         Following the Court's examination, counsel for the parties shall be granted thirty (30) minutes each to examine the jury.

         (G) Number of Jurors. Counsel have reviewed Federal Rule of Civil Procedure 48 and NECivR 48.1 and suggest the following:

         Counsel suggest this matter be tried to a jury composed of possibly nine (9), but no less than six (6) members.

         (H) Verdict. The parties will not stipulate to a less-than-unanimous verdict. However, after six (6) hours of deliberation, the parties will stipulate to a verdict of either 7-2 or 7-1, depending on total number of jurors.

         (I) Briefs, Instructions, and Proposed Findings. Counsel have reviewed NECivR 39.2(a), 51.1(a), and 52.1, and suggest the following schedule for filing trial briefs, proposed jury instructions, and proposed findings of fact, as applicable:

         Unless otherwise ordered, trial briefs and proposed jury instructions shall be filed five (5) days before the first day of trial. Proposed findings of fact are non-applicable in this matter.

         (J) Length of Trial. Counsel estimate the length of trial will consume not less than five (5) days, not more than seven (7) days, and probably about five (5) days.

         (K) Trial Date. Trial is set to commence on February 6, 2017.

         DEFENDANT'S DESIGNATION OF DEPOSITION TESTIMONY AND DISCOVERY RESPONSES

         Pursuant to Fed.R.Civ.P. 26(a)(3), and in accordance with the Court's Amended Order Setting Final Schedule for Progression of Case dated June 17, 2016, (Doc. 26), Defendant QuikTrip Corporation hereby identifies the following portions of each deposition, designated by page and line, and discovery responses that it intends to present at trial of the above-captioned matter, other than solely for impeachment purposes:

         I. DEPOSITION TESTIMONY

         A. The deposition of Steve Buchanan taken January 27, 2016:

Page/Line Reference
5:9-11
5:23-6:1
8:10-11
22:2-12
26:19-23
28:20-25
36:21-37:3
37:18-23
53:19-25
56:21-57:3
65:3-6
77:7-82:2
86:1-18
90:21-91:2
94:23-95:14
103:6-104:5
108:23-109:3
...

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