Opinion
Civil Action No. 3:97-CV-1480-L
September 6, 2001
ORDER
A pretrial conference was held on this date to discuss the status of trial. There are currently a number of outstanding matters. Two issues in particular, as discussed below, might significantly affect the scope of trial, or eliminate the need for trial altogether. These two issues, however, were raised only recently and are not yet ripe for resolution. Accordingly, it would be premature to resolve other outstanding matters or proceed to trial at this time. The court therefore vacates the current trial setting.
The court repeats its admonition in the pretrial conference that both of these issues could and should have been raised at an earlier date.
Defendant filed a trial brief on August 24, 2001, which argues that Plaintiff's sole remaining claim, for breach of contract, must be dismissed as the allegations sound in warranty rather than breach of contract. The court's memorandum opinion and order of January 30, 2001 dismissed with prejudice Plaintiff's claims based on express or implied warranties. If Defendant's argument in the trial brief is correct, and if Plaintiff's motion described below is denied, the case would be disposed of in its entirety. The court now redesignates the trial brief as a second motion for summary judgment. The clerk is directed to redesignate this filing on the docket sheet as "Defendant BASF Corporation's Second Motion for Summary Judgment." Plaintiff is entitled to file a response, and shall do so no later than September 20, 2001. If Defendant wishes to file a reply, it shall do so within 7 days after the response is filed, or no later than September 27, 2001.
On August 30, 2001 Plaintiff filed a Motion to Reconsider, requesting that the court reverse its order of January 30, 2001 as to the dismissal of Plaintiff's claims for breach of implied warranties. Plaintiff asserts that the summary judgment record did not support the court's finding that Defendant had disclaimed all warranties. Defendant filed a response to the motion to reconsider on September 5, 2001. Plaintiff may file a reply brief, if it desires, by no later than September 11, 2001.
Once the court has ruled on these two issues, it will reschedule the pretrial conference and trial date as necessary. This case is over four years old. If trial is necessary, it will take place in October, 2001.
It is so ordered.