Opinion
Case No. 2:02CV98 DAK.
July 15, 2004
ORDER
This matter is before the court on Plaintiff's Motion for Summary Judgment and Third-Party Defendant's Motion for Summary Judgment. A hearing on the motions was held on July 1, 2004. At the hearing, Plaintiff O.P. Investments, Inc. dba Kirkham Motorsports ("KMS") and Third-Party Defendant David Kirkham ("Mr. Kirkham") were represented by John T. Anderson and Lori D. Huntington. Defendant and Third-Party Plaintiff Gerald Weichers ("Mr. Weichers") was represented by Edward W. McBride, Jr. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following Order.
At the hearing, Mr. Weichers' counsel indicated that he had not opposed Mr. Kirkham's Motion for Summary Judgment and that the motion should be granted. Accordingly, the court granted the motion. Counsel for Mr. Kirkham, however, reserved his right to request attorney's fees at a later date.
Regarding KMS' Motion for Summary Judgment, the court finds that material factual disputes preclude summary judgment. For example, among other things, material disputes exist regarding whether KMS substantially performed under the contract, whether KMS was unable to perform due to impracticability, whether the agreement was an installment contract, whether Mr. Weichers breached the agreement(s), whether Mr. Weichers was excused from performing, whether Mr. Weichers reasonably cancelled the agreement, whether he communicated the cancellation to KMS in a manner consistent with UCC requirements, whether Mr. Weichers signed the December agreement under duress, whether Mr. Weichers failed to mitigate his damages, and whether Mr. Weichers' failure to return the goods constitutes a breach of the agreements.
Consequently, KMS' Motion for Summary Judgment is denied. A four-day jury trial has been set to begin on November 15, 2004 at 8:30 a.m. In October, the court will issue a Trial Order, setting forth deadlines for the exchange of proposed jury instructions and for the filing of a Stipulated Pre-trial Order, motions in limine, stipulated jury instructions, proposed jury instructions to which the parties could not stipulate, objections to proposed jury instructions, proposed special verdict forms, and proposed voir dire.
The court notes, however, that it is troubled by the seeming disparity between the amount of money at stake and the amount of money that has been and will continue to be spent litigating this dispute. Consequently, in an effort to help the parties avoid the significant expense involved in going to trial, the court orders the parties to participate in a settlement conference. Counsel and clients must be present at the conference. The Honorable David Sam has graciously agreed to conduct the settlement conference. To this end, the parties are instructed to prepare a brief summary of the nature of the dispute and the relief sought. This confidential document shall not exceed fifteen pages in length, and it should be sent directly to Judge Sam's chambers. The document will not be filed in the court record, nor will be shared with opposing counsel or with this court. Counsel are instructed to contact Judge Sam's chambers no later than Thursday, July 22, 2004 to schedule the settlement conference.
CONCLUSION
For the foregoing reasons and good cause appearing, IT IS HEREBY ORDERED that Third-Party Defendant Kirkham's Motion for Summary Judgment is GRANTED, and the claims against Mr. Kirkham are DISMISSED with prejudice. Plaintiff KMS' Motion for Summary Judgment is DENIED. A four-day jury trial is set to begin on November 15, 2004. As explained above the parties are instructed to participate in a settlement conference, which will be conducted by the Honorable David Sam.