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Welsch v. Hoop Beef System, LLC

United States District Court, D. Nebraska

March 3, 2017

RANDY WELSCH and CODY WELSCH, Plaintiffs,
v.
HOOP BEEF SYSTEM, LLC and DR. ROBERT BRYANT, Defendants. HOOP BEEF SYSTEM, LLC Counterclaim-Plaintiff,
v.
RANDY WELSCH AND CODY WELSCH, Counterclaim-Defendants.

          RANDY WELSCH and CODY WELSCH, Plaintiffs, Brian C. Buescher #21920 Dwyer Arce #25709 Kutak Rock LLP Attorneys for Plaintiffs.

          HOOP BEEF SYSTEM, LLC, and DR. ROBERT BRYANT, Defendants, Rene Charles Lapierre Klass Law Firm, L.L.P. Attorney for Defendants.

          ORDER ON FINAL PRETRIAL CONFERENCE

          CHERYL R. ZWART, UNITED STATES MAGISTRATE JUDGE

         A final pretrial conference was held on the 3rd day of March, 2017. Appearing for the parties as counsel were:

Brian Buescher, counsel for Plaintiffs Randy Welsch and Cody Welsch (“Plaintiffs”);
Rene Charles Lapierre, counsel for Defendants Hoop Beef System, LLC and Dr. Robert Bryant (“Defendants”).

         (A) Exhibits. Exhibit List to be submitted to the court for filing by March 8, 2017.

         (B) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:

1. Plaintiffs Randy and Cody Welsch conduct a cattle business in Gladstone, Nebraska, operating under the name of C & R Cattle.
2. Defendant Hoop Beef is a limited liability company based in Vermillion, South Dakota.
3. Defendant Dr. Robert Bryant is the founder of Hoop Beef Systems, LLC.
4. Dr. Robert Bryant sells cattle under the trade name Grand Meadow Feeders.

         (C) Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the court's attention are:

         Plaintiffs' Issues:

         Breach of Contract

         1. Whether Defendants breached the Heifer Contract.

         2. Whether Defendants breached the Heifer Contract by delivering heifers that were underweight, in poor health, had unusually low fertility rates, were diseased, or were otherwise not in merchantable condition.

         3. Whether Defendants breached the Heifer Contract by failing to provide professional grade consulting services with regard to the heifers purchased under the Heifer Contract, and instead provided Plaintiffs with defective nutritional advice that caused the heifers to suffer serious health issues and death.

         4. Whether Defendants breached the implied covenant of good faith and fair dealing that exists within the Heifer Contract by virtue of its actions and inactions.

         5. Whether Defendants' breach of the Heifer Contract caused damages to Plaintiffs and the amount of those damages.

         Negligence

         6. Whether Defendants owed a duty to Plaintiffs to (a) fairly and accurately represent the condition of the heifers being sold to Plaintiffs and (b) provide Plaintiffs with defective consulting services on nutrition and related matters with regard to the heifers Plaintiffs purchased from Defendants.

         7. Whether Defendants breached the duty it owed to Plaintiffs by (a) misrepresenting the condition of the cattle it sold to them and (b) failing to provide Plaintiffs with defective consulting services on nutrition and related matters with regard to the heifers Plaintiffs purchased from Defendants.

         8. Whether Plaintiffs suffered damages proximately caused by Defendants' failure to discharge its duties.

         Breach of Warranty

         9. Whether Defendants breached the express warranty of the merchantability in the Heifer Contract and the implied warranty that the heifers sold were fit for a particular purpose by selling heifers to Plaintiffs that were not in “merchantable” condition nor were they fit for the purpose for which they were sold because they were underweight, ...


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