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TAS Distributing Co., Inc. v. Cummins

April 9, 2010


The opinion of the court was delivered by: Joe Billy Mcdade Senior United States District Judge


Before the Court are the Motion for Reconsideration filed by Defendant, Cummins, Inc., on December 7, 2009 (Doc. 214) and the Motion for Leave to File Reply filed by Defendant on December 11, 2009 (Doc. 218). Both Motions are DENIED.


This lawsuit has resulted in numerous Orders that have attempted to outline the dispute between the parties. In lieu of generating another extensive outline of the parties' dispute, the Court assumes familiarity with the claims in this case, the various Orders, and the documents filed in two other cases involving these parties, TAS Distributing Co. v. Cummins Engine Co., 1:03-cv-1026 (hereinafter "TAS I") and Cummins, Inc. v. TAS Distributing Company, Inc., 1:09-cv-1096 (hereinafter "TAS III"). This case, of course, is TAS II.

On March 17, 2009, Defendant filed a Motion and memorandum to file an Amended Answer (Docs. 125 and 126) to the Third Amended Complaint (Doc. 70). The docket does not reflect that a response was filed to the Motion. However, on the day that the response was due, the Motion was denied as moot by Magistrate Judge Gorman, along with various discovery motions, in light of recent rulings on dispositive motions (Doc. 147). Judge Gorman ordered the parties to review various pending motions and consolidate and re-file those motions that were still in dispute.

In response, Cummins filed a Motion on May 1, 2009 (Doc. 157). As is relevant to the current Motion for Reconsideration, Cummins reasserted the Motion for Leave to File an Amended Answer, Affirmative Defenses and Counterclaims. The amendments relate to arguments concerning the validity of two Patents, the '703 and '469 Patents, that Cummins asserts would lead to the rescission of the contracts that form the basis of Plaintiff's Complaints. These defenses are the subject of Cummins' Complaint in TAS III (which was filed on March 18, 2009 -- a day after the original Motion to Amend -- Doc. 125 -- was filed in this case). TAS responded to the May 1, 2009 Motion on May 20, 2009 (Doc. 164). On June 11, 2009, TAS filed a Fourth Amended Complaint (Tr. 169).

On October 27, 2009, this Court issued an Order disposing of Cummins' Motion to Amend (Doc. 199). The Court stated:

Cummins seeks to amend its Answer and plead affirmative defenses and counterclaims relating to its basis claim that the patents underlying and providing substantial consideration for the license agreement for the TAS technology are invalid and unenforceable. The patents are the subject of another action pending in this Court in Case No. 09-1096 [TAS III] in which fully briefed summary judgment motions are pending. In the Court's judgment, the instant case is complex enough and the additional complexity of patent ramifications would become overwhelming and impede the just, speedy and inexpensive determination of the instant case. The effect of granting Cummins' motion would be to consolidate this case with the pending patent case which the Court determines to be inconvenient and inexpedient. The Motion to Amend Answer is denied.

On November 13, 2009, TAS filed its Fifth Amended Complaint (Tr. 205). On November 30, 2009, this Court found that the claims in TAS III are barred by res judicata because they could have and should have been litigated in TAS I.

In the present Motion for Reconsideration, Cummins asserts that it is entitled "as a matter of right" to file an amended answer that would include its patent-based counterclaims and defenses "given that TAS has been permitted to file a claim that changes the scope of the litigation." Second, Cummins claims that the ruling in TAS III and the appeal of that ruling "could also impact the ultimate resolution of TAS' claims here" because the claims in TAS III are "essentially identical" to the proposed defenses in this case -- however, Cummins agues that the ruling in TAS III is not the law of the case because the two cases have not been consolidated. Third, Cummins argues that the ruling on its Motion "may contradict" a June 11, 2009 Order. Cummins seeks either leave to assert its defenses and counterclaim and an extension of time to file its Answer to the Fifth Amended Complaint, or, in the alternative, certification of this issue for interlocutory appeal.


This matter appears to be procedurally complicated because of the intervening amended complaints and the fact that no answer (which can be amended) has been filed with respect to the Fifth Amended Complaint. When Cummins' Motion (Doc. 125) was originally filed, it sought to amend its Answer (Doc. 71) to the Third Amended Complaint (Doc. 70) based on the discovery of new information garnered from depositions taken from March 2 to March 13, 2009.

Thus, Cummins argued that good cause pursuant to Federal Rule of Civil Procedure 16(b)(4),*fn1 in conjunction with Rule 15(a)'s liberal amendment provisions, warranted that leave to amend be granted. Along with the Motion, Cummins filed its Third Amended Answer prior to leave being granted (Doc. 127). The Third Amended Answer should have been stricken on this account (and because the Motion was denied as moot in the April 3, 2009 Order (Doc. 147)). As noted above, TAS did not respond to the Motion because of the intervening Order disposing of the Motion.

TAS filed its Fourth Amended Complaint on June 11, 2009 (Doc. 169). The filing of the Fourth Amended Complaint necessarily nullified the Third Amended Complaint and responsive pleadings thereto. Cummins filed its Fourth Answer to the Fourth Amended Complaint on July 13, 2009 (Doc. 178). The Fourth Answer includes the patent-based defenses and counter-claims that are the subject of the present Motion. TAS filed its Answer to the counter-claims on July 27, 2009 (Doc. 180). The docket does not reflect a motion to dismiss the counter-claims related to the patents nor is there any motion to strike portions of the Fourth Answer related to the patents. Thus, it was only after the filing of ...

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