LIBERTY INSURANCE UNDERWRITERS, INC., V. BEAUFURN, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LIBERTY INSURANCE UNDERWRITERS, )

INC., an Illinois corporation, )

)

Plaintiff, )

)

v. ) 1:16CV1377

)

BEAUFURN, LLC, a North Carolina )

limited liability company; )

and DOES 1–10, )

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Currently before the court are two motions for summary

judgment. (Docs. 63, 65.) Plaintiff Liberty Insurance

Underwriters, Inc., has moved for partial summary judgment on

the issue of whether certain insurance and indemnification

provisions are included in the underlying contracts between The

Cheesecake Factory, Inc. (“TCF”) and Defendant Beaufurn, LLC

(“Beaufurn”). Plaintiff argues that TCF’s terms were accepted

and should govern each contract. Defendant Beaufurn has also

moved for summary judgment and argues that all claims against it

should be dismissed. Beaufurn contends that its order

acknowledgments expressly rejected TCF’s terms, which thus did

not become part of the relevant contracts. For the reasons set

forth herein, this court finds that each motion should be

granted in part and denied in part.

I. FACTUAL & PROCEDURAL BACKGROUND

On June 14, 2013, Janet Kinzler was injured when she fell

from a high top chair while seated at a high top table with some

colleagues at a TCF restaurant in Maryland. (First Am. Compl.

(“Am. Compl.”) (Doc. 52) ¶ 11.) TCF regularly purchases barstools

from Beaufurn for use in its “restaurants across the country,

including in its location at 7002 Arundel Mills Circle, Hanover,

Maryland.” (Denise Hall Declaration (Doc. 63-1) ¶ 4.) The chair

from which Kinzler fell was “designed, manufactured and/or

distributed by Beaufurn.” (Am. Compl. (Doc. 52) ¶ 11.) TCF

investigated the incident, concluded that Kinzler’s injuries were

most likely caused by her own actions, and returned the subject

chair to service in its restaurant. (William Ivar Bongaerts

Deposition (Doc. 63-5) at 24; Cook Dep. (Doc. 63-4) at 2.)

On March 18, 2014, Kinzler sued TCF in federal court in the

Western District of Pennsylvania, alleging that TCF was

negligent by “utilizing chairs that were unstable and subject to

overturning” and by maintaining and failing to warn customers of

slippery floors in its restaurant. (Kinzler v. The Cheesecake

Factory, Inc. Am. Compl. (Doc. 52-2) ¶ 35.) Plaintiff alleged

damages in an amount greater than $75,000.00. (See Am. Compl.

(Doc. 52-2).) TCF requested that Beaufurn defend TCF against

Kinzler’s claim and indemnify TCF for any resulting damages,

pursuant to the terms of the purchase order for the subject

chair. (Am. Compl. (Doc. 52) ¶ 19–20; TCF Demand Letter to

Beaufurn (Doc. 52-3).) Beaufurn apparently passed this demand

along to The Cincinnati Insurance Company (“CIC”), its primary

and umbrella insurer. (Am. Compl. (Doc. 52) ¶¶ 21–22.) Neither

CIC nor Beaufurn agreed to defend or indemnify TCF in the

Kinzler lawsuit. (Id. ¶¶ 21–24.)

TCF, Plaintiff (TCF’s primary insurer), and ACE American

Insurance Company (TCF’s excess insurer), subsequently settled

the Kinzler action for the total “sum of $4,375,000, of which

LIU [Liberty Insurance Underwriters] paid the sum of

$3,558,284.39, TCF paid $316,715.61 and ACE American paid

$500,000.” (Id. ¶ 29.) Plaintiff now seeks to recover from

Beaufurn the following amounts: (1) $61,554.56 in defense costs

paid directly by Plaintiff, (2) $183,284.39 in defense costs

paid by TCF, which Plaintiff alleges “eroded TCF’s self-insured

retention under the ACE” policy, causing this policy to be

depleted faster and causing spillover into Plaintiff’s policy,

and (3) $3,558,284.39, the Kinzler settlement amount paid

directly by Plaintiff. (Id. ¶¶ 31, 45.)

Plaintiff originally brought suit in California state

court. Defendants then removed the case to federal court in the

Central District of California. (See generally Notice of Removal

(Doc. 1).) Defendants moved to transfer the case to this

district; that motion was granted by Judge Fernando M. Olguin

November 30, 2016. (See Venue Order (Doc. 34).)

Beaufurn has moved for summary judgment. (See Doc. 63.)

Beaufurn argues that the purchase orders and order

acknowledgments contained conflicting insurance and

indemnification provisions and that each expressly limited

acceptance to its own terms.1 Therefore, under Uniform Commercial

Code {“UCC”) 2-207, the insurance and indemnification terms in

the purchase orders “were not part of the contract, so Beaufurn

could not have breached those terms.” (Def.’s Mem. of Law in

Supp. of Mot. for Summ. J. (“Def.’s Mem.”) (Doc. 64) at 13–14.)

1 The “Terms and Conditions of Sale” attached to TCF’s

purchase orders required the “Seller,” or Beaufurn, to carry

commercial general liability insurance of a specified amount and

type and to indemnify the “Buyer,” or TCF, for damage “arising

out of, or in connection with the use of any Product provided by

Seller.” (TCF Purchase Order No. 5616 (“TCF Purchase Order

5616”) (Doc. 52-8) at 3.) Beaufurn’s “Terms & Conditions of

Sale,” which were attached to the signature sheet for at least

some transactions, provided that the “Seller,” or Beaufurn, was

obligated only to carry the minimum amount of insurance coverage

required by law and that the “Purchaser,” or TCF, agreed to

indemnify Beaufurn for damage “arising out of the death or

injury to person or damage to property resulting from the sale,

marketing or use of the Products by Purchaser.” (Beaufurn Pro

Forma Invoices (“Beaufurn Pro Forma”) (Doc. 65-11) at 14.)

Plaintiff has moved for partial summary judgment. (See Pl.’s

Mot. for Partial Summ. J. (Doc. 65).) Plaintiff argues that the

purchase orders were offers to purchase the subject chairs, that

Beaufurn’s order acknowledgments were valid acceptances not

expressly conditioned on Plaintiff’s acceptance of any

additional terms, and that therefore the insurance and

indemnification provisions in the purchase orders govern the

relevant contracts. (See Pl.’s Mem. of Law in Supp. of Mot. for

Partial Summ. J. (“Pl.’s Mem.”) (Doc. 66) at 15–20.) Plaintiff

requests summary judgment on the issue of whether “the terms and

conditions of TCF’s purchase orders controlled the contract for

the sale of goods” and an order “precluding Beaufurn from

invoking its terms and conditions as a defense to Plaintiff’s

claims.” (Pl.’s Mot. for Partial Summ. J. (Doc. 65) at 2.)

II. GOVERNING LAW

The parties agree that choice of law is immaterial to this

case because both North Carolina and California have adopted the

relevant UCC provision without change. (Compare Def.’s Mem.

(Doc. 64) at 10, with Pl.’s Mem. (Doc. 66) at 13.) Though the

ultimate result may be the same regardless of the law chosen, a

proper choice-of-law analysis is still required.

A federal district court sitting in diversity applies the

choice-of-law rules of the forum. See Klaxon Co. v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941). When either party

is granted transfer under 28 U.S.C. § 1404(a),2 however, the

transferee court applies the choice-of-law rules of the

transferor court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 243

n.8 (1981); see also Ferens v. John Deere Co., 494 U.S. 516, 519

(1990) (superseded by statute on other grounds); Volvo Constr.

Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 600 (4th

Cir. 2004). The rule in Piper and Ferens for Section 1404(a) and

choice-of-law is inapplicable in cases governed by valid forum

selection clauses. See Atl. Marine Constr. Co. v. U.S. Dist. Ct.

for W. Dist. of Tex., 571 U.S. 49, 65—66 (2013). As will be

discussed infra, TCF and Beaufurn had conflicting forum

selection clauses that were “knocked out” under California’s

“battle of the forms provision.” (See Venue Order (Doc. 34) at

6-7.) Therefore, in this case, there was no valid forum

2 Transfer under Section 1404(a) is appropriate when venue

was first properly laid in the transferor district. Compare 28

U.S.C. § 1404(a), with § 1406(a); see also Van Dusen v. Barrack,

376 U.S. 612, 634 n.30 (1964). Though the district court in

California did not expressly state that venue was proper in the

Central District of California, (see generally Venue Order (Doc.

34)), that court did transfer this case under Section 1404(a)

and declined to rule on an argument that venue was not properly

laid, (id. at 14 n.13). As the Supreme Court has said, Section

1404(a) “operates on the premises that the plaintiff has

properly exercised his venue privilege.” Van Dusen, 376 U.S. at

634. For these reasons, this court concludes that venue was

properly laid in the transferor district and that transfer was

appropriate under 1404(a).

selection clause, (see id.), and the matter was transferred to

this court under Section 1404(a), (id. at 14–15). In light of

these facts, the court concludes that California’s choice-of-law

rules apply.

California has adopted the governmental interest test for

most of its conflict-of-laws issues. See, e.g., Reich v.

Purcell, 67 Cal. 2d 551, 555–56 (1967). Under that approach,

courts “must search to find the proper law to apply based upon

the interests of the litigants and the involved states.”

Offshore Rental Co. v. Cont'l Oil Co., 22 Cal. 3d 157, 161

(1978), holding modified by I.J. Weinrot & Son, Inc. v. Jackson,

40 Cal. 3d 327 (1985). The first step in the governmental

interest test is to determine if there is, in fact, a true

conflict3 between California law and foreign law. Washington Mut.

Bank v. Superior Court, 24 Cal. 4th 906, 919 (2001). When there

is “no material difference [between two laws], there is no

choice-of-law problem and the court may proceed to apply

California law.” Frontier Oil Corp. v. RLI Ins. Co., 153 Cal.

App. 4th 1436, 1465, as modified (Sept. 5, 2007).

3 See Michael Traynor, Conflict of Laws: Professor Currie’s

Restrained and Enlightened Forum, 49 Cal. L. Rev. 845, 856

(1961) (“If the domestic policies of both states are the same,

there is no true conflict of laws.”).

As stated above, both California and North Carolina have

adopted the UCC in its entirety, to include Section 2-207, the

most relevant provision in this case. Comparison of the two

states’ UCC 2-207 provisions reveal that there is no “material

difference” between them. Compare Cal. Com. Code § 2207, with

N.C. Gen. Stat. § 25-2-207. For that reason, this court will

specifically apply Cal. Com. Code § 2207, Frontier Oil Corp.,

153 Cal. App. 4th at 1465,4 and thus adopt the parties’

4 In the realm of contract interpretation, some California

courts have held that the governmental interest test does not

supplant the interpretation instructions in Section 1646 of the

California Civil Code. That provision states that “[a] contract

is to be interpreted according to the law and usage of the place

where it is to be performed; or, if it does not indicate a place

of performance, according to the law and usage of the place

where it is made.” Cal. Civ. Code § 1646. Other courts, however,

seem to disagree that Section 1646 overcomes the newer

governmental interest test. See Strassberg v. New England Mut.

Life Ins. Co., 575 F.2d 1262, 1263–64 (9th Cir. 1978) (per

curiam); see also Arno v. Club Med Inc., 22 F.3d 1464, 1468 n.6

(9th Cir. 1994) (collecting cases and noting conflict). The Arno

court pointed out that it was not necessary for it to resolve a

conflict in state law since the outcome under either test was

the same. Id.

This court is in the same position as the one in Arno. Even

if this court applied Section 1646, California law would still

result. Here, the purchase order was issued from California to

North Carolina via e-mail, and the chairs were shipped to a

Beaufurn warehouse in California prior to delivery. (See TCF

Purchase Order No. 5614 (Doc. 52-6); Kathy Ann Daywalt

Deposition (“Daywalt Dep.”) (Doc. 65-8) at 26-27.) This court is

satisfied that the contract was formed in California, either

when TCF sent the purchase order or received the order

acknowledgment. The place of performance was arguably also

California; chairs were shipped from North Carolina to an

stipulation “that California law applies to the substantive

contractual issues.” (See Venue Order (Doc. 34) at 5.)

III. STANDARD OF REVIEW

In reviewing a motion for summary judgment, this court must

determine whether there remains a “genuine dispute as to any

material fact.” Fed. R. Civ. P. 56(a). “Once a defendant makes a

properly supported motion for summary judgment, the burden

shifts to the plaintiff to set forth specific facts showing that

there is a genuine issue for trial.” Sylvia Dev. Corp. v.

Calvert Cty., 48 F.3d 810, 817 (4th Cir. 1995). “On summary

judgment the inferences to be drawn from the underlying

facts . . . must be viewed in the light most favorable to the

party opposing the motion.” United States v. Diebold, Inc., 369

U.S. 654, 654 (1962) (per curiam). If there is no genuine

dispute about any fact material to the moving party’s claim,

then “the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A factual dispute is genuine when “the evidence is such

that a reasonable jury could return a verdict for the nonmoving

“Advance location” in California where they were held until

released by TCF to various TCF locations across the country.

(Daywalt Dep. (Doc. 65-8) at 10.) Whether analyzing under place

of performance or place of formation, California law would

apply.

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); see also First Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 289–90 (1968) (stating that a dispute is not

genuine for summary judgment purposes when one party rests

solely on allegations in the pleadings and does not produce any

evidence to refute alternative arguments). This court must look

to substantive law to determine which facts are material — only

those facts “that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary

judgment.” Anderson, 477 U.S. at 247.

In addition, “the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment.” Id. Ultimately,

“there is no issue for trial unless there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for

that party.” Anderson, 477 U.S. at 249.

IV. LAW OF THE CASE DOCTRINE

A. Prior Venue Order & Arguments

Judge Olguin, in his order transferring this case to the

Middle District of North Carolina, thoroughly analyzed the

parties’ competing forms under UCC 2-207. Judge Olguin concluded

that “neither TCF nor Beaufurn provided specific and unequivocal

assent to the other parties’ additional terms and conditions”

and that these additional terms were thus “trimmed” from the

contract. (Venue Order (Doc. 34) at 7.)

Beaufurn argues that, under the “law-of-the-case doctrine,”

Judge Olguin’s analysis should control and apply with equal

force to the insurance and indemnification provisions that are

the subject of the motions for summary judgment. (Def.’s Resp.

in Opp’n to Pl.’s Mot. for Partial Summ. J. (“Def.’s Resp.”)

(Doc. 67) at 6–9.) Specifically, Beaufurn argues that “the

California federal court explicitly held that all terms in

conflict between the parties’ two agreements were not part of

the final contract” and that this holding should govern unless

it is “clearly erroneous.” (Id.)

Plaintiff argues that Judge Olguin’s venue order is not the

law of the case. First, Plaintiff asserts that the analysis of

the forum selection and insurance/indemnification provisions is

substantively different. (Pl.’s Reply to Def.’s Resp. to Pl.’s

Mot. for Partial Summ. J. (“Pl.’s Reply”) (Doc. 70) at 2–3.)

Second, Plaintiff argues that this court has already rejected

the California order as the law of the case because this court

permitted Plaintiff to amend the complaint despite Defendants’

argument that amendment was futile in light of Judge Olguin’s

order. (See id. at 3.) Third, Plaintiff contends that new

evidence has now surfaced. (See id. at 4–5.) Specifically,

Plaintiff argues that the record before Judge Olguin may have

suggested that Beaufurn initiated each transaction by sending

inventory sheets that constituted offers to sell. However,

Plaintiff argues that the deposition of Kathy Daywalt

(“Daywalt”), Beaufurn’s office manager responsible for the TCF

relationship, revealed new material facts relating to the

parties’ course of dealing — because Daywalt testified that

these inventory spreadsheets did not contain price or other

forward-looking information, these sheets were not offers and

the fact that Judge Olguin may have interpreted them as offers

justifies a new analysis of the substantive issues. (See Pl.’s

Reply (Doc. 70) at 4–5.)

Applying the law-of-the-case doctrine is a threshold issue

in this matter. If Judge Olguin’s analysis governs this court’s

decision on summary judgment, then this court can only conclude

that the conflicting insurance and indemnification provisions

drop out of the contracts. If, however, there is a valid reason

not to apply some or all of Judge Olguin’s analysis, then this

court must conduct its own independent examination of the

relevant contractual provisions.

B. Legal Framework

“When a court decides upon a rule of law, that decision

should continue to govern the same issues in subsequent stages

of the same case.” Arizona v. California, 460 U.S. 605, 618

(1983). And the Supreme Court has clearly explained “that the

doctrine applies as much [and sometimes with even greater force]

to the decisions of a coordinate court in the same case as to a

court’s own decisions” or those of the immediate appellate

court. Christianson v. Colt Indus. Operating Corp., 486 U.S.

800, 816 (1988). The law of the case “doctrine does not preclude

[a transferee court’s] reconsideration of previously decided

issues in extraordinary circumstances such as where: (1) new

evidence is available; (2) a supervening new law has been

announced; or (3) the earlier decision was clearly erroneous and

would create manifest injustice.” In re City of Philadelphia

Litigation, 158 F.3d 711, 718 (3d Cir. 1998); see also Arizona

v. California, 460 U.S. at 618 n.8 (“[I]t is not improper for a

court to depart from a prior holding if convinced that it is

clearly erroneous and would work a manifest injustice.”); Sejman

v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988). The fact

that a transferor court did not adequately explain its decision

to apply a certain legal rule does not, by itself, render the

law of the case inapplicable in future proceedings.

Christianson, 486 U.S. at 817.

C. Analysis

Here, Judge Olguin of the Central District of California

ruled that neither party had clearly assented to the terms in

the other party’s boilerplate form, that the case fell under UCC

2-207(3), and that, under that rule, the conflicting forum

selection provisions dropped out of the contracts. (Venue Order

(Doc. 34) at 7.)

Judge Olguin’s determination that this case falls within

UCC 2-207(3) is equally applicable to whether any of the

competing insurance or indemnification provisions became part of

the contracts. First, Judge Olguin’s decision to disregard the

dueling form provisions and apply UCC 2-207(3) is exactly the

type of legal rule that constitutes the law of the case. This

decision was a necessary and integral step to reaching the

ultimate transfer decision; it was not dicta and thus should

apply with full force in later stages of the case barring any

extraordinary circumstance. See City of Philadelphia Litigation,

158 F.3d at 718–20 (stating that, where a certain legal

“determination was necessarily subsumed within the court’s

analysis of” a broader issue, that intermediate determination

qualified as the law of the case).

Second, despite Plaintiff’s arguments to the contrary, (see

Pl.’s Reply (Doc. 70) at 1-2), the Supreme Court has clearly

explained that decisions of coordinate transferor district

courts are the law of the case and that the doctrine applies

with equal force to those decisions as to decisions of a

superior appellate court.5 Christianson, 486 U.S. at 816. And

this court disagrees with United States v. Lentz, 384 F. Supp.

2d 934, 939 (E.D. Va. 2005), to the extent that case may be read

to impose additional hurdles beyond those set forth in

Christianson to applying prior coordinate court rulings as the

law of the case.6 This court does not believe it would be proper

to disregard a coordinate court decision in the same case

addressing a substantive issue (as present here), outside of the

5 While these issues usually arise in the context of re-

evaluating the transfer decision itself, see, e.g.,

Christianson, 486 U.S. at 816 (“[T]ransferee courts that feel

entirely free to revisit transfer decisions of a coordinate

court threaten to send litigants into a vicious circle of

litigation.”), there are powerful reasons to apply Judge

Olguin’s ruling even to a subsequent decision that is not

directly related to venue. This court finds that, whenever

possible, it should seek to maintain internal consistency of

legal decisions within the same case to fulfill the parties’

expectations and promote respect for the law. If this court

disregarded Judge Olguin’s ruling for anything less than an

“extraordinary circumstance,” the parties would be improperly

subjected to inconsistent constructions of the same contractual

arrangement; this might create future uncertainty about how such

provisions will be interpreted. The three exceptions articulated

in Christianson strike an appropriate balance between

consistency and fairness.

6 Lentz dealt with evidentiary rulings, which present a

different question from the substantive legal ruling present

here. This court finds nothing in Lentz to be inconsistent with

its application of Judge Olguin’s venue order.

three specific “extraordinary circumstances” listed in

Christianson. This court will follow the Supreme Court’s

directive that the doctrine applies equally to coordinate court

decisions.

This court also rejects Plaintiff’s characterization of

this court’s prior order granting Plaintiff’s motion to amend

the complaint. When this court permitted Plaintiff to amend its

complaint, the court stated: “Because the Central District of

California was analyzing forum selection clauses, not the

provisions at issue here, the court declines to adopt

Defendants’ view [that the venue order made the proposed

amendments futile].” (Doc. 50 at 3 n.3.) At that time discovery

was still ongoing, and this court was without the necessary

information to find whether or not any exception to the law-of-

the-case doctrine applied. While this court’s order could

perhaps have been drafted more clearly, futility is a high

standard and, at that early stage of the proceedings, it is

difficult to find that a proposed amendment is futile. See,

e.g., Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir.

1986) (“Leave to amend . . . should only be denied on the ground

of futility when the proposed amendment is clearly insufficient

. . . on its face.”). Daywalt had not yet been deposed, and at

the time of this court’s order, it was entirely possible that

new material evidence would come to light. This court merely

found that the proposed amendments were not futile at that time

and under the circumstances. This court did not disclaim future

application of the law of the case in accordance with

Christianson.

Plaintiff does not argue that Judge Olguin’s decision was

clearly erroneous or manifestly unjust, nor does Plaintiff

identify any change in the supervening law of contract

interpretation relevant to the UCC 2-207 analysis. Therefore,

the only question is whether new or substantially different

evidence justifies disregarding the law of the case and

conducting independent legal analysis of the substantive issues.

See City of Philadelphia Litigation, 158 F.3d at 718; Sejman,

845 F.2d at 69; see also Bishop v. Smith, 760 F.3d 1070, 1090

n.12 (10th Cir. 2014).

Evaluating all the evidence now before the court, Daywalt’s

deposition provides new, uncontroverted evidence that the

Beaufurn signature sheet making the sale of goods “expressly

conditioned upon” Beaufurn’s additional terms, (see Beaufurn Pro

Forma (Doc. 65-11) at 12), did not exist on or before

January 15, 2007. (See Daywalt Dep. (Doc. 65-8) at 35–36, 41,

46–48, 90.) According to Daywalt, the order acknowledgments, or

pro forma invoices, that were issued for purchase orders up to

and including Purchase Order (“P.O.”) 3667 (Beaufurn Order No.

8144), stated only that the contract would be “subject to” or

“entered under” Beaufurn’s standard terms and conditions.

(Daywalt Dep. (Doc. 65-8) at 46–47; Beaufurn Pro Forma (Doc.

65-11) at 2–3.) This new evidence was not before Judge Olguin

when he issued his venue order. The evidence is material because

the “subject to” or “entered under” language is, as a matter of

law, generally insufficient to make Beaufurn’s acceptance

“expressly conditioned upon” TCF’s assent to additional terms

within the meaning of UCC 2-207(1). See, e.g., Dorton v. Collins

& Aikman Corp., 453 F.2d 1161, 1167 (6th Cir. 1972).

This court, therefore, finds that extraordinary

circumstances in the form of new evidence exist to abrogate the

law of the case as to any purchase order dated on or prior to

January 15, 2007. This includes P.O. 2716 placed on June 29,

2006, (see TCF Purchase Order No. 2716 (Doc. 65-4); TCF Purchase

Order No. 3619 (Doc. 65-5) (placed on December 29, 2006);

Beaufurn Pro Forma (Doc. 65-11) at 2–3 (documenting TCF Purchase

Order No. 3667 placed on January 15, 2007).) The court will

proceed to substantive analysis based on the new evidence

demonstrating that Beaufurn sent only a pro forma invoice, and

not a signature sheet, to TCF for these orders.

As to the purchase orders dated after January 15, 2007,

this court finds that Judge Olguin’s decision to “trim” the

conflicting form provisions and apply UCC 2-207(3) is the law of

the case, that this decision was not clearly erroneous or

unjust, and that no new evidence has been introduced that would

materially impact this analysis. It appears Plaintiff did not

argue before Judge Olguin that it had not received signature

sheets for any relevant purchase orders. (See, e.g., Rebecca

Stobie Declaration (Doc. 17-9) (stating generally that signature

sheets were not signed and returned to Beaufurn, implying that

TCF did receive signature sheets for all orders but did not do

anything with those sheets).) While Plaintiff maintains that UCC

2-207(3) should not apply even conceding the receipt of

signature sheets, Plaintiff now argues that it is unclear

whether signature sheets were received for any purchase order

other than P.O. 5616. (See Pl.’s Mem. (Doc. 66) at 18–19.) But

this merely represents the evolution of Plaintiff’s legal

arguments. There is no new, material evidence proving that

signature sheets were or were not received for the later

purchase orders.7

Plaintiff has made a stronger argument before this court

that signature sheets may not have been sent for these later

orders, based on both Daywalt’s uncertainty, (see Daywalt Dep.

(Doc. 65-8) at 92–93), and the lack of signature sheets for

certain purchase orders in Beaufurn’s records. But those facts

alone are insufficient to constitute an extraordinary

circumstance. Judge Olguin found that signature sheets were sent

for all purchase orders, that the acknowledgment constituted a

counteroffer, and that contracts were formed under UCC 2-207(3).

This court finds that new evidence renders his opinion erroneous

as to pre-January 15, 2007 purchase orders because Daywalt’s

testimony indicates the separate Beaufurn signature sheet did

not exist at that time. While Daywalt expressed uncertainty

about the lack of signature sheets in Beaufurn’s records for

certain later purchase orders, she also stated that “[s]tandard

procedure would be that we had a signature sheet with each

7 This court also finds that, even if Judge Olguin did in

fact consider the purchase orders to be acceptances of an

earlier offer to purchase from Beaufurn as Plaintiff suggests,

(see Pl.’s Reply (Doc. 70) at 4–5), this distinction ultimately

would not change the outcome. Assuming that TCF did receive

signature sheets for these later orders, in neither situation

would either party be deemed to have consented to the other’s

additional provisions under UCC 2-207(1).

order.” (Daywalt Dep. (Doc. 65-8) at 92.) The brewing dispute

about the receipt of signature sheets for later orders is merely

a dispute about how to characterize Daywalt’s testimony; it is

not new evidence that constitutes an extraordinary circumstance

under Christianson. This court will apply the law-of-the-case

doctrine to any post-January 15, 2007 purchase orders, adopt

Judge Olguin’s analysis and decision to apply UCC 2-207(3), and

find that the conflicting insurance and indemnification

provisions did not become part of those contracts.

V. UCC 2-207: BATTLE OF THE FORMS

A. Legal Framework

Under Cal. Com. Code § 2207:

(1) A definite and seasonable expression of

acceptance or a written confirmation which is sent

within a reasonable time operates as an acceptance

even though it states terms additional to or different

from those offered or agreed upon, unless acceptance

is expressly made conditional on assent to the

additional or different terms.

(2) The additional terms are to be construed as

proposals for addition to the contract. Between

merchants such terms become part of the contract

unless:

(a) The offer expressly limits acceptance to

the terms of the offer;

(b) They materially alter it; or

(c) Notification of objection to them has

already been given or is given within a reasonable

time after notice of them is received.

(3) Conduct by both parties which recognizes the

existence of a contract is sufficient to establish a

contract for sale although the writings of the parties

do not otherwise establish a contract. In such case

the terms of the particular contract consist of those

terms on which the writings of the parties agree,

together with any supplementary terms incorporated

under any other provisions of this code.

Judge Olguin clearly and capably analyzed the legal

framework of UCC 2-207 and the battle of the forms, as adopted

in California under Cal. Com. Code § 2207. (See Venue Order

(Doc. 34) at 6–7.) This court will not revisit that analysis

here, and instead incorporates Judge Olguin’s discussion of the

relevant legal standard in its entirety. See id.; see also

Steiner v. Mobil Oil Corp., 20 Cal. 3d 90, 98–108 (1977)

(explaining and applying § 2207 in the context of a “battle of

the forms” dispute).

B. Arguments & Analysis

1. Pre-January 15, 2007 Purchase Orders

This court agrees with Plaintiff that an acknowledgment

which simply purports to be made “under” or “subject to” the

offeree’s standard terms and conditions, (see, e.g., Beaufurn

Pro Forma (Doc. 65-11) at 22), operates as an acceptance under

Dorton and forms a contract under UCC 2-207(1). See, e.g.,

Dorton, 453 F.2d at 1168 (“Although Collins & Aikman’s use of

the words ‘subject to’ suggests that the acceptances were

conditional to some extent, we do not believe the acceptances

were “expressly made conditional . . . .’”); see also Luria

Bros. & Co. v. Pielet Bros. Scrap Iron & Metal, Inc., 600 F.2d

103, 113 n.12 (7th Cir. 1979); MHD-Rockland Inc. v. Aerospace

Distribs. Inc., No. CCB–13–2442, 2014 WL 31677, at *4 & n.4 (D.

Md. Jan. 3, 2014) (collecting cases). This language gave no

express indication that Beaufurn was unwilling to proceed with

the transaction unless TCF consented to additional terms.

Therefore, the pro forma invoice did not constitute a

counteroffer but rather accepted TCF’s initial offer. TCF’s

terms became part of the contract and Beaufurn’s proposed

additions dropped out pursuant to UCC 2-207(2) because they

would have materially altered the agreement. See, e.g., Trans-

Aire Int’l, Inc. v. N. Adhesive Co., 882 F.2d 1254, 1261–63 (7th

Cir. 1989); C9 Ventures v. SVC-West, L.P., 202 Cal. App. 4th

1483, 1488 (2012) (“[A]n indemnification provision is deemed a

material alteration to an agreement as a matter of law.”).

Beaufurn attempts to distinguish the Dorton holding because

that case did not involve a true “battle of the forms”

situation. (See Def.’s Resp. (Doc. 67) at 14–15.) Beaufurn

argues that “Dorton involved one party who purportedly sought to

impose an arbitration provision while the other party’s document

was silent on the matter.” (Id.) In this case, on the other

hand, the parties exchanged documents with separate, conflicting

contractual provisions. However, that factual distinction is

irrelevant to the specific point on which Dorton is most

persuasive: whether purporting to make an acceptance “subject

to” additional terms suffices to make that acceptance “expressly

conditional” and thus transforms it into a rejection and

counteroffer. Beaufurn offers no case law to support the

proposition that “subject to” means “expressly conditioned upon”

under UCC 2-207(1). Once the pro forma invoices are viewed as

acceptances rather than counteroffers, a plain reading of UCC

2-207(1) shows that the offeror’s terms become part of the

contract. This court finds Dorton applicable and finds that

TCF’s insurance and indemnification provisions became part of

the contractual agreement for the earlier purchase orders.

For all purchase orders prior to and including P.O. 3667,

this court finds the evidence in its entirety (accounting for

Daywalt’s deposition testimony and other new evidence not before

Judge Olguin) sufficient to determine beyond any doubt that a

separate signature sheet was not sent to TCF. According to

Daywalt’s uncontroverted testimony, the sheet did not exist at

that time. (See Daywalt Dep. (Doc. 65-8) at 35–36, 46–48.)

Therefore, as to the following orders — P.O. 2716 placed on

June 29, 2006, (see Doc. 65-4), P.O. 3619 placed on December 29,

2016, (see Doc. 65-5), and P.O. 3667 placed on January 15, 2007,

(see Beaufurn Pro Forma (Doc. 65-11) at 4–5) — and any other

purchase orders placed prior to or on January 15, 2007,

Beaufurn’s response accepted TCF’s terms pursuant to UCC

2-207(1). For those orders, this court finds that the terms and

conditions attached to TCF’s purchase orders controlled the

contracts between TCF and Beaufurn and that summary judgment

should be granted to Plaintiff on that issue. This court further

finds that summary judgment should be granted to Plaintiff,

precluding Beaufurn from using its own terms and conditions as a

defense and striking Beaufurn’s Fifteenth Affirmative Defense,

as it relates to those specific purchase orders.

2. Post-January 15, 2007 Purchase Orders

This court will apply Judge Olguin’s analysis to the post-

January 15, 2007 purchase orders as the law of the case. (See

Venue Order (Doc. 34) at 6–7.) Beaufurn’s signature sheet made

acceptance of TCF’s offers expressly conditional on TCF’s assent

to new terms. Because TCF did not return a signed signature

sheet and thus did not seasonably indicate acceptance of those

new terms, no contract was formed until performance. That

contract, pursuant to UCC 2-207(3), included only those terms on

which the parties had expressly agreed — price and quantity, but

not the conflicting insurance and indemnification provisions.

While the law-of-the-case doctrine is sufficient to decide the

issue, this court will also briefly explain why it agrees with

Judge Olguin’s analysis.

Plaintiff would have this court hold, under Dorton, that

even an order acknowledgment stating it is “expressly

conditioned upon” assent to new, material terms in the

acknowledgment (thus directly tracking the language of UCC

2-207(1)) will accept the offer and bind the offeree to the

terms contained in the offer. (See Pl.’s Mem. of Law in Opp’n to

Def.’s Mot. for Summ. J. (“Pl.’s Resp.”) (Doc. 68) at 16 (“In

any event, the language of the above clause is insufficient

under Dorton to invalidate Beaufurn’s acceptance because it

merely attempted to make Beaufurn’s sale of any goods

conditioned on Beaufurn’s ‘terms.’ This language did not make

Beaufurn’s acceptance of TCF’s purchase orders expressly

conditioned on TCF’s ‘assent’ to those terms.”).) This court

finds that Plaintiff is attempting to make a distinction without

substantive meaning, one that even the Dorton court was not

required to make to reach its holding.

Plaintiff argues that an acknowledgment which states it is

“expressly conditioned upon” new terms is not really “expressly

conditional” unless it unequivocally makes acceptance

conditional upon the counterparty’s assent to those terms.

(Pl.’s Mem. (Doc. 66) at 17.) First, the acknowledgment in

Dorton itself stated only that “the acceptances (or orders) were

‘subject to all of the terms and conditions on the face and

reverse side hereof, including arbitration, all of which are

accepted by buyer.’” Dorton, 453 F.2d at 1167 (emphasis added).

Any piece, therefore, of the Dorton holding that might be read

to require use of the terms “expressly conditioned upon” and

“assent to,” directly following one another and in that specific

order, would be dicta because the court was considering an

acknowledgment that looked significantly less like the actual

language of UCC 2-207(1) than the acknowledgment at issue here.

Second, the Beaufurn signature sheet states: “The sale of

any goods covered by this Order Acknowledgment is expressly

conditioned upon the terms contained herein (including the Terms

and Conditions on the attached and/or located on Seller’s

website at www.beaufurn.com). Purchaser’s assent to [those]

terms . . . shall be conclusively presumed . . . .” (Beaufurn

Pro Forma (Doc. 65-11) at 12 (emphasis added).) Beaufurn’s

acknowledgment, therefore, does in fact reference the

counterparty’s assent to additional terms.

As other courts have observed, “an acceptance which

precisely follows § 2-207(1) clearly forestalls contract

formation.” PCS Nitrogen Fertilizer, L.P. v. Christy

Refractories, L.L.C., 225 F.3d 974, 979 (8th Cir. 2000); see

also Ionics, Inc. v. Elmwood Sensors, Inc., 110 F.3d 184, 185

189 (1st Cir. 1997); C. Itoh & Co. (Am.) Inc. v. Jordan Int’l

Co., 552 F.2d 1228, 1235–36 (7th Cir. 1977). And “[t]o require

the exact language of the UCC would be too formalistic and

inconsistent with the UCC’s requirement that its provisions be

liberally construed.” White v. Consol. Indus., Inc. v. McGill

Mfg. Co., 165 F.3d 1185, 1191 (8th Cir. 1999); see also Ralph

Shrader, Inc. v. Diamond Int’l Corp., 833 F.2d 1210, 1215 & n.4

(6th Cir. 1987) (finding that an acknowledgment which stated

additional terms and provided that those terms “are the only

ones upon which we will accept orders” was expressly

conditional; rejecting the argument that language must exactly

mimic UCC 2-207(1)).

Beaufurn’s signature sheet used the words “expressly

conditioned upon” and referenced TCF’s “assent” to additional

terms. This court finds that the signature sheet language is

sufficiently similar to UCC 2-207(1) to make Beaufurn’s

acceptance of the offer “expressly conditional” on TCF’s assent

to new material terms. Therefore, Beaufurn’s later

acknowledgments were counteroffers that rejected TCF’s

boilerplate provisions and brought the parties into the realm of

UCC 2-207(3).

For those purchase orders dated after January 15, 2007 —

P.O. 5597 dated December 3, 2007, (see Doc. 65-3), P.O. 5614

dated December 3, 2007, (see Doc. 52-6), P.O. 5615 dated

December 3, 2007, (see Doc. 52-7), P.O. 5616 dated December 3,

2007, (see Doc. 52-8), and any other such purchase orders — this

court finds that neither party’s insurance or indemnification

provisions became part of the contractual agreement. Beaufurn,

therefore, is entitled to summary judgment for any claims

premised upon a breach of those provisions. For purchase orders

dated after January 15, 2007, all claims against Beaufurn based

upon the alleged breach of the insurance or indemnification

provisions in TCF’s terms and conditions will be dismissed (the

first, second, tenth, and eleventh causes of action).

VI. MISCELLANEOUS ISSUES

Two issues remain for this court to address. First is

Plaintiff’s claim for equitable subrogation; this claim is

allowed to proceed. Second is the issue of alleged defendants

John Does 1–10. Though Defendant Beaufurn did not move for

summary judgment on the counts related to the Doe defendants

(claims 7, 8, and 9), those counts are dismissed for the reasons

stated below.

A. Equitable Subrogation Claim

1. Legal Framework & Arguments

Beaufurn further argues that the third cause of action,

Plaintiff’s claim for equitable contribution or subrogation

against Beaufurn, should be dismissed because “Plaintiff either

insufficiently pleaded and cannot maintain that cause of action,

and/or Plaintiff has not and cannot present evidence

demonstrating Beaufurn’s fault or negligence in the underlying

lawsuit.” (Def.’s Mem. (Doc. 64) at 22.) Plaintiff responds that

“TCF’s decision to not draw Beaufurn into the Kinzler Action”

did not absolve Beaufurn of liability for the chair that

allegedly caused Kinzler’s injuries, that the third cause of

action is a proper subrogation claim, and that “conflicting

expert opinions” regarding whether the subject chair was

negligently designed by Beaufurn preclude summary judgment on

the claim. (Pl.’s Resp. (Doc. 68) at 18–22.) Beaufurn replies

that “any fault-based equitable subrogation claim against

Beaufurn must fail” because Plaintiff cannot identify above a

50% probability which specific chair caused Kinzler’s injury.

(Def.’s Reply to Pl.’s Resp. to Def.’s Mot. for Summ. J.

(“Def.’s Reply”) (Doc. 69) at 11-12.)

As one California court explained,

[e]quitable contribution permits reimbursement to the

insurer that paid on the loss for the excess it paid

over its proportionate share of the obligation, on the

theory that the debt it paid was equally and

concurrently owed by the other insurers and should be

shared by them pro rata in proportion to their

respective coverage of the risk.

Fireman’s Fund Ins. Co. v. Md. Cas. Co., 65 Cal. App. 4th 1279,

1293 (1998) (“Fireman’s 1998”). “The reciprocal rights and

duties of multiple insurers which cover the same event do not

arise out of contract, for their agreements are not with each

other” but rather with the insured party (here, TCF). Certain

Underwriters at Lloyds, London v. Arch Specialty Ins. Co., 246

Cal. App. 4th 418, 428–29 (2016). Equitable contribution “exists

independently of the rights of the insured . . . and assumes the

existence of two or more valid contracts of insurance covering

the particular risk of loss and the particular casualty in

question.” Fireman’s 1998, 65 Cal. App. 4th at 1295.

Equitable contribution claims are separate and distinct

from equitable subrogation claims, where an insurer stands in

the shoes of the insured and brings a derivative suit “against

the party legally and primarily responsible for the loss.” Id.

at 1295–96. “Equitable subrogation permits a party who has been

required to satisfy a loss created by a third party’s wrongful

act to step into the shoes of the loser and pursue recovery from

the responsible wrongdoer.” Fireman’s Fund Ins. Co. v. Md. Cas.

Co., 21 Cal. App. 4th 1586, 1595–96 (1994) (“Fireman’s 1994”).

“The subrogated insurer . . . has no greater rights than the

insured and is subject to the same defenses assertable against

the insured.” Reliance Nat’l Indem. Co. v. Gen. Star Indem. Co.,

72 Cal. App. 4th 1063, 1078 (1999).

When an insurer seeks equitable subrogation after

it has paid a claim for an insured, the insurer must

establish that (1) the insured suffered a loss for

which the defendant is liable, either (a) because the

defendant is a wrongdoer whose act or omission caused

the loss or (b) because the defendant is legally

responsible to the insured for the loss caused by the

wrongdoer; (2) the insurer has compensated the insured

for the loss for which the defendant is liable; (3)

the insured has an existing, assignable cause of

action against the defendant which the insured could

have asserted had it not been compensated by the

insurer; (4) the insurer has suffered damages caused

by the act or omission upon which the liability of the

defendant depends; (5) justice requires that the loss

should be shifted from the insurer to the defendant,

whose equitable position is inferior to that of the

insurer; and (6) the insurer’s damages are in a stated

sum, usually the amount paid to its insured.

Fireman’s Fund Ins. Co v. Wilshire Film Ventures, Inc., 52 Cal.

App. 4th 553, 555–56 (1997).

Plaintiff labeled the third cause of action “Equitable

Contribution,” (see Am. Compl. (Doc. 52) ¶¶ 46–49), leading

Beaufurn logically to conclude that the claim most likely

alleged equitable contribution, (see Def.’s Mem. (Doc. 64) at

16). However, in its response to Beaufurn’s motion for summary

judgment, Plaintiff cited Fireman’s 1998 for the difference

between an equitable contribution and subrogation claim and

argued that the third cause of action is an equitable

subrogation claim. (Pl.’s Resp. (Doc. 68) at 18–19.) This court

finds that Plaintiff intended to bring an equitable subrogation

claim against Beaufurn: Plaintiff alleges that Beaufurn’s

negligence caused Kinzler’s injury, that TCF was forced to

compensate Kinzler for the harm caused by this negligence, and

that equity demands Plaintiff (standing in the shoes of TCF)

should be compensated by Beaufurn for the loss.

Once Plaintiff clarified that it intended to bring an

equitable subrogation claim, Beaufurn argued that such a claim

is precluded because there is no dispute of material fact as to

whether Beaufurn is “a wrongdoer whose act or omission caused

the loss” to TCF that Plaintiff now attempts to recover. (See

Def.’s Reply (Doc. 69) at 12 (“There were other possible causes

unrelated to the design of the chair, such as the way Kinzler

sat, the movement of her body on the chair, and the condition of

the floor.”).) Specifically, based on the injured customer’s

expert testimony provided in the Kinzler matter, Beaufurn argues

“there was just a 10% chance Kinzler was sitting on a chair with

issues,” (id.), and that Plaintiff therefore cannot establish to

the required degree of certainty that the “allegedly defective

product was actually the product that caused harm to a

plaintiff.” (Id. at 11.) Because even Kinzler’s own expert

conceded in that litigation that only three out of twenty-nine

chairs might be defective, and because there were other possible

causes of Kinzler’s fall, Beaufurn argues that “the jury would

be left with mere speculation as to what product caused the

plaintiff to be injured.” (Id. at 12.) Plaintiff, on the other

hand, points to “[t]he conflicting expert opinions” in the

underlying case and argues that those opinions illustrate a

dispute of material fact that precludes summary judgment. (Pl.’s

Resp. (Doc. 68) at 21.)

2. Analysis

This court understands Beaufurn’s argument as follows:

there is no dispute of material fact regarding whether an

allegedly defective chair manufactured by Beaufurn caused

Kinzler’s injury because the facts uncovered in the Kinzler

litigation all point strongly to other causes and because TCF

argued in the Kinzler litigation that the chairs were not

defective. First, this court does not accept Beaufurn’s

contention that proximate cause requires a showing that the

allegedly defective product “more likely than not” caused the

injury. (See Def.’s Reply (Doc. 69) at 11–12.) Rather,

California courts have consistently held that: (1) proximate

cause normally requires the defendant’s action be a but-for

cause of the harm and liability be consistent with public policy

considerations, see State Dep’t of State Hosps. v. Superior

Court, 61 Cal. 4th 339, 352–53 (2015), and (2) when there are

concurrent independent causes, proximate cause requires that the

defendant’s actions be a “substantial factor” in causing the

injury, see, e.g., Mitchell v. Gonzales, 54 Cal. 3d 1041, 1052–

54 (1991). Further, “[o]rdinarily, proximate cause is a question

of fact which cannot be decided as a matter of law from the

allegations of a complaint.” Weissich v. Cty. of Marin, 224 Cal.

App. 3d 1069, 1084 (1990).

To this court, neither test described above would require a

showing that a manufacturing defect in the chairs “more likely

than not” caused Kinzler’s fall. And, in any event, this court

is not satisfied that proximate cause should be decided as a

matter of law in this case so long as there is a dispute of

material fact over whether a defective chair caused the injury.

On the contrary, the very outcome of the Kinzler litigation

suggests that there is at least some outstanding dispute of

material fact regarding whether the subject chairs were or are

defective. Kinzler submitted expert reports in that case

stating, among other things, that “the front-to-back placement

of the seats over the front legs” was abnormal and unstable and,

when combined with the slippery floor, caused Kinzler to fall.

(See Kinzler v. The Cheesecake Factory, Inc., No. 2:14-cv-346-

MRH (W.D. Pa.) (Doc. 23-1) at 8.)

TCF proffered competing expert testimony stating that

“[t]he cause of Ms. Janet Kinzler’s fall was her sliding off the

chair while she was adjusting herself, as opposed to the chair

kicking out while she was toasting.” (See id. (Doc. 49-1) at

19.) But TCF neither moved for nor obtained summary judgment on

that issue; in fact, it appears from the docket that the parties

were preparing for trial at the time they settled.

Second, this court does not believe that any of TCF’s

representations in the Kinzler litigation should bind Plaintiff

here. “When the insured makes affirmative statements or

admissions about the facts of his claim, particularly those

facts within the insured’s own knowledge, it may be appropriate

to hold that the subrogated insurer is bound by those statements

or admissions” in a subsequent subrogation claim. Great Am. Ins.

Cos. v. Gordon Trucking, Inc., 165 Cal. App. 4th 445, 452

(2008). Here, however, any statement or admission by TCF is

based on “matters not within [its] personal knowledge” — namely,

the design and construction of Beaufurn’s bar stools. Id. TCF

has no specialized knowledge of Beaufurn’s design and

manufacturing process. Rather, it merely engaged an expert to

examine the subject chairs in the same way that Kinzler did. The

fact that TCF’s expert reached a certain conclusion should not

bind Plaintiff, where there was no final adjudication or release

of liability in the underlying action. See id.

While Beaufurn may ultimately be correct “that there is

nothing defective about the subject barstool . . . or any other

barstools of the same or similar type,” this court cannot grant

summary judgment solely on the basis of “strong evidence” when

any material fact remains legitimately in dispute. (Def.’s Mem.

(Doc. 64) at 21.) This court finds that Beaufurn’s motion for

summary judgment on the third cause of action should be denied.

B. Doe Defendants

Plaintiff also brings three separate causes of action

against ten unidentified defendants (John Does 1-10). (See Am.

Compl. (Doc. 52) ¶¶ 68–82.) John Does 1-10 are alleged to be

excess, umbrella or other insurers of Beaufurn. (Id. ¶¶ 8–9.)

Neither party addresses these claims in its motion for summary

judgment. Because this case has proceeded through discovery

without identification of John Does 1-10, the claims are now

subject to dismissal. See Hindes v. F.D.I.C., 137 F.3d 148, 155

(3d Cir. 1998) (“The case law is clear that fictitious parties

must eventually be dismissed, if discovery yields no identities,

and that an action cannot be maintained solely against Doe

defendants.”) (internal citations and punctuation omitted); see

also Johnson v. City of Ecorse, 137 F. Supp. 2d 886, 892 (E.D.

Mich. 2001). While Beaufurn has not specifically moved for

summary judgment on these claims, this court finds that the

seventh, eighth and ninth causes of action should be dismissed.

VII. CONCLUSION

For the foregoing reasons, this court finds that

Plaintiff’s motion for partial summary judgment should be

granted in part and denied in part and that Beaufurn’s motion

for summary judgment should be granted in part and denied in

part.

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Partial

Summary Judgment, (Doc. 65), is GRANTED IN PART AND DENIED IN

PART, in that the motion is GRANTED as to all sales conducted

pursuant to purchase orders dated prior to or on January 15,

2007, and DENIED as to all sales conducted pursuant to purchase

orders dated after January 15, 2007.

IT IS FURTHER ORDERED that Defendant Beaufurn, LLC’s Motion

for Summary Judgment, (Doc. 63), is GRANTED IN PART AND DENIED

IN PART, in that the motion is DENIED as to all sales conducted

pursuant to purchase orders dated prior to or on January 15,

2007, GRANTED as to all sales conducted pursuant to purchase

orders dated after January 15, 2007, and DENIED as to

Plaintiff’s Third Cause of Action.

IT IS FURTHER ORDERED that the Seventh, Eighth and Ninth

Causes of Action are hereby DISMISSED.

A partial judgment reflecting this memorandum opinion and

order will be entered contemporaneously herewith.

This the 23rd day of September, 2019.

LA; fr

by Udinm L. 0S xX

United States District Ju

-39-