United States District Court, S.D. Texas, Houston Division
MEMORANDUM, RECOMMENDATION AND ORDER
before the court are the following motions: Plaintiff's
Motion to Strike Defendants' Counterclaim pursuant to
Federal Rule of Civil Procedure 12(f) (Doc. 111);
Defendants' Renewed Motion to Strike Initial Disclosures
(Doc. 128); Defendants' Motion to Strike Plaintiff's
Reply in Opposition to Motion to Dismiss First Amended
Counterclaim (Doc. 130); Plaintiff's Motion to Dismiss
Counterclaim (Doc. 133); Plaintiff's Motion for
Reimbursement of Expert Fees (Doc. 136); Plaintiff's
Motion to Strike Defendants' Affirmative Defenses (Doc.
138); Defendants' Motion for Summary Judgment (Doc. 143);
Plaintiff's Motion to Exclude Defendants' Rebuttal
Experts (Doc. 142); and Plaintiff's Motion to Stay (Doc.
is a manufacturer and wholesaler of aftermarket automotive
parts. Plaintiff claims it possesses common law and federal
trademarks to its Universal Product Code number and that
Defendants used those trademarks in advertising and selling
their products. Plaintiff sues for false advertising and
designation of origin, trademark infringement, unjust
enrichment, negligent interference with contractual
relations, intentional interference with prospective economic
advantage and unfair competition.
February 24, 2017, the court entered a scheduling order after
discussions with counsel. Since that time, the parties have
engaged in non-stop disputes over the adequacy of the
pleadings, whether certain pleadings should be stricken, the
timing of expert disclosures and other matters that are not
directed at moving this case to trial. The court has had
enough of this type of skirmishing and believes that this
case needs a fresh start. It is therefore
ORDERED that the following dates will
1. By March 16, 2018, Plaintiff shall file
its final amended complaint. Even if Plaintiff simply refiles
a prior version, the final amended complaint must be filed by
this date. No. further amendments will be permitted.
2. By April 13, 2018, Defendants will answer
Plaintiff's final amended complaint and file their final
amended counterclaim. No. further amendments will be
3. By April 30, 2018, Plaintiff will file
its answer to the final amended counterclaim. No. further
amendments will be permitted.
4. By June 1, 2018, each party bearing the
burden of proof will serve/re-serve their expert designations
upon the other party.
5. By July 13, 2018, each party will serve
its rebuttal expert designations upon the other party.
6. No. written discovery may be served after July 31,
Discovery ends on September 28, 2018.
8. Dispositive motions filed pursuant to Federal Rule of
Civil Procedure 56 must be filed by October 11,
2018. The court will not entertain
any motion directed at the sufficiency of the pleadings,
whether designated as a motion to dismiss, a motion to
strike, or a motion for judgment on the pleadings.
The court will only consider one motion filed
pursuant to Federal Rule of Civil Procedure 56.
All non-dispositive motions must be filed by
October 11, 2018.
The parties are cautioned that the court will scrutinize
their disclosures when determining if a trial witness has
been adequately disclosed to the opposing party. For
example, it will not be sufficient to
designate unnamed persons from Amazon.com as unretained
experts and reserve the right to supplement their names at
a later date. All experts, retained or non-retained, must
be disclosed by the dates set above.
11. All fact witnesses must be disclosed by
name, contact information and testimony topics thirty days
before the close of discovery.
Each side will pay its expert any fee required by that
expert to prepare for, and attend, his deposition.
13. Each counsel will refrain from disparaging the other.
The court is concerned that the disputes between counsel
are clouding their judgments on the merits and monetary
worth of their respective claims. The parties are
ORDERED to mediate this case within the
next 90 days. If the parties cannot agree on a mediator
within the next two weeks, they will notify the court and
the court will select one.
15. All pending non-dispositive motions are
DENIED without prejudice. It is
RECOMMENDED that all dispositive motions be
DENIED at this time. Renewed motions, if
necessary, may be filed in accordance with this order.
Clerk shall send copies of this Memorandum, Recommendation
and Order to the respective parties who have fourteen days
from the receipt thereof to file written objections thereto
pursuant to Federal Rule of Civil Procedure 72(b) and General
Order 2002-13. Failure to file written objections within the
time period mentioned shall bar an aggrieved party from
attacking the factual findings and legal conclusions on
original of any written objections shall be filed with the
United States District Clerk electronically. Copies of such
objections shall be mailed to opposing parties and to the
chambers of ...