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Exmark Manufacturing Company Inc. v. Briggs & Stratton Corp.

United States District Court, D. Nebraska

November 14, 2018

EXMARK MANUFACTURING COMPANY INC., Plaintiff,
v.
BRIGGS & STRATTON POWER PRODUCTS GROUP, LLC, SCHILLER GROUNDS CARE, INC., and BRIGGS & STRATTON CORPORATION, Defendants.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart, United States Magistrate Judge

         This matter is before the court on Defendant Briggs & Stratton Corp.'s (“Briggs”) motion to amend the scheduling order. (Filing No. 813). For the following reasons, Defendant's motion will be denied.

         BACKGROUND

         The relevant procedural history set forth in the court's prior orders, including its order denying Defendant's motion to transfer venue, (Filing No. 754), and its order granting Plaintiff's motion to enforce the scheduling order. (Filing No. 788), is incorporated by reference and will not be repeated here.

         On October 5, 2018, this Court issued a Protective Order prohibiting Defendant from enforcing third-party subpoenas served on MTD Products, Inc. (“MTD”) and Husqvarna Professional Products, Inc. (“Husqvarna”). The undersigned magistrate judge held the parties' jointly suggested and court-approved post-remand scheduling order did not re-open discovery beyond its express terms, and those terms did not include depositions of third parties. The court's order further stated:

Defendant has not moved to amend the scheduling order, but even if it had, any after-the-fact effort to modify the scheduling order would fail as a matter of law. . . . Defendant has failed to show due diligence: Defendant knew Plaintiff intended to rely on the MTD and Husqvarna agreements and their application to the damages analysis since at least May 7, 2018. . . . And even assuming a finding of due diligence, Plaintiff will be prejudiced by Defendant's late discovery attempts. The pretrial conference is scheduled for October 16, 2018, the parties must exchange exhibit lists by October 2, 2018, and motions in limine are due on October 11, 2018. Defendant's proposed additional discovery will not only unduly interfere with Exmark's trial preparation, it will disrupt the court's case progression order and calendar.

(Filing No. 788, at CM/ECF pp. 8-9) (internal citations omitted).

         Defendant has filed an objection to that order (Filing No. 812), along with the motion to amend the scheduling order addressed in this memorandum and order. (Filing No. 813). As explained in Defendant's brief,

Briggs is filing objections to the Court's decision on Exmark's motion today, along with Briggs's motion for amended scheduling order. Briggs does not wish to burden the Court with unnecessary motion practice. But to the extent that Briggs's previous request to amend the Scheduling Order was denied as “improper, ” Briggs is filing this motion such that the Court can rule definitively, so as to preserve all appellate remedies, as necessary.

(Filing No. 815, at CM/ECF p. 4).[1]

         STATEMENT OF FACTS

         The parties' “Joint Stipulation for Scheduling Order to Trial, ” (Filing No. 709), described the permitted post-remand supplemental fact discovery as follows:

On or before April 13, 2018 the parties shall supplement document production and written discovery responses relevant to the Georgia-Pacific factors. Supplementation shall be limited to documents and facts arising since the close of fact discovery.
Each party may take one deposition regarding supplemental discovery. The depositions shall be in accordance with Fed.R.Civ.P. 30(b)(6) and shall be completed on or before May 11, 2018.

(Filing No. 709, at CM/ECF p. 1; Filing No. 710, at CM/ECF).

         In April 2018, as part of its obligation to “supplement document production. . . relevant to the Georgia-Pacific factors, ” Exmark produced MTD and Husqvarna license and settlement agreements. (Filing No. 778). Some of these documents were produced two-weeks after the supplementation deadline. (Filing No. 778). Briggs states it first learned of these agreements and of Exmark's accusations of infringement of the ‘863 patent against MTD and Husqvarna when it received Plaintiff's document production in April of 2018. (Filing No. 780).

         On May 1, 2018, Briggs corresponded with Exmark to ask whether it intended to rely on the MTD and/or Husqvarna agreements in any way in litigation. If so, Briggs indicated that it would seek further discovery on these agreements. (Filing No. 778-3). On May 7, 2018, Exmark responded that it ...


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