The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 6/12/09 Non-Dispositive Motion Filing Deadline: 7/17/09 Dispositive Motion Filing Deadline: 8/10/09 Settlement Conference Date: 9/3/09 10:00 Ctrm. 9 Pre-Trial Conference Date: 10/19/09 11:00 Ctrm. 3 Trial Date: 12/1/09 9:00 Ctrm. 3 (JT-5 days)
Date of Scheduling Conference. September 4, 2008.
1. In 2005, Plaintiff and Defendant entered into an Agreement whereby Plaintiff agreed to sell its cosmetic products to Defendant at cost, and Defendant agreed to pay for the products upon being invoiced. In addition to paying the invoices, Defendant agreed to pay Plaintiff one-half (50%) of the net profits from Defendant's sale of Plaintiff's products. Defendant further agreed and was required to provide to Plaintiff accountings of all sales of the products along with payment of the fee.
2. As an additional term of the Agreement, Plaintiff developed a product line specifically for sale by Defendant, and Defendant agreed to pay Plaintiff for the development of the product line. Plaintiff incurred costs in excess of $171,208 to develop this product line. Defendant also agreed to market Plaintiff's products. Plaintiff incurred promotional costs of approximately $55,431, which Defendant agreed to pay.
3. Defendant breached the Agreement by failing to pay Plaintiff for the products supplied by Plaintiff upon being invoiced, failing to adequately market, advertise or support the sale of Plaintiff's products, failing to develop new markets or support existing markets for these products, and stopping its sales of Plaintiff's products. As a result of the breaches of the Agreement by Defendant, Plaintiff has suffered damages including, but not limited to, the following: $314,012 for products sold to Defendant; expenditure of more than $171,208 for developing a product line; and approximately $55,431 for promoting Plaintiff's products.
1. While Defendant concedes that Plaintiff delivered certain cosmetic products to Defendant in the year 2005, which Defendant in turn sent to retail stores with the hope that the products would be purchased by the public, there remains considerable confusion as to the amount of the products sent by Plaintiff to Defendant, what products were returned by Defendant to Plaintiff, and what products the Plaintiff refused to take back, after the products could not be sold at retail. The parties did not have a written contract. Defendant contends that the arrangement for sale of Plaintiff's products was in the nature of a consignment. Defendant received two separate types of Plaintiff's cosmetic products. These were placed in over one hundred retail stores by Defendant, but the product was not preferred by the public and little was purchased by the public. The more expensive product that could not be sold was later returned by Defendant to Plaintiff, but Plaintiff refused to take back the less expensive of the two products, and instead demanded payment for same, in contravention of the arrangement between the parties.
2. Defendant's counsel has approached Plaintiff's counsel, seeking to determine if there are documents that could further clarify the facts in this case, which might make a settlement possible.
II. Orders Re Amendments To Pleadings
1. The parties do not anticipate amending the pleadings at this time. The parties, if there are amendments, agree that a deadline for any motion to amend the pleadings shall be filed on or before December 12, 2008.
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings
1. Plaintiff is a California limited liability company having its principal place of business in Tulare County, California.
2. Defendant is a Delaware corporation having its principal place of business in the State of North Carolina.
1. Whether Defendant requested products from Plaintiff.
2. Whether Plaintiff delivered products to Defendant.
3. Whether Plaintiff invoiced Defendant for products delivered.
4. Whether Plaintiff demanded payment for products delivered to Defendant.
5. Whether Defendant paid for the products delivered.
6. Whether the parties entered into an agreement in which Defendant agreed to pay for the products delivered.
7. Whether the parties entered into an agreement in which Defendant agreed to pay Plaintiff for a portion of the profits from Defendant's sale of the products.
8. Whether Plaintiff developed a product line for sale by Defendant.
9. Whether the parties entered into an agreement in which Defendant agreed to pay for the development of the product line.
10. Whether the parties entered into an agreement in which Defendant agreed to pay for ...