Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge
Before the Court is a motion  filed by Plaintiff/Counter-Defendant Packaging Supplies, Inc. ("PSI") to vacate this Court's entry of summary judgment against it . For the reasons explained below, PSI's motion is respectfully denied. The parties are given until 11/18/2011 to submit a joint status report advising the Court of (a) any further motions that the parties contemplate, (b) a proposed briefing schedule on such motions (if any), and (c) in the absence of further motions, their position(s) on what remains to be done in this litigation.
O[ For further details see text below.] Docketing to mail notices.
PSI instigated this suit when it filed its complaint on January 17, 2008 . After PSI survived a motion to dismiss (see ), the Harley-Davidson parties ("Harley-Davidson") answered and filed a counterclaim.
On August 26, 2010, the Court held a status hearing and directed the parties to contact the Courtroom Deputy with an agreed briefing schedule for their dispositive motions . Four days later, on August 30, 2010, Harley-Davidson filed two motions: one seeking summary judgment on all counts of PSI's complaint , and another seeking partial summary judgment on the issue of liability on Counts I, II, V, and VII of Harley-Davidson's counterclaim (the counts that alleged trademark infringement and unfair competition) . Shortly thereafter, the Court entered the parties' agreed briefing schedule . PSI's responses were due on 10/13/2010; Harley-Davidson's replies were due by 11/3/2010.
The October 13 deadline came and went without any filing from PSI. On 11/3/2010, the date set for its reply, Harley-Davidson filed a combined reply brief that pointed out that PSI had "filed no papers whatsoever in opposition to Harley-Davidson's motions; nor has it sought or received leave of Court to excuse its response date." ( at 2). Harley-Davidson urged the Court to deem admitted its consolidated Local Rule 56.1 statement of facts and decide its motions without a response from PSI. Id.
As of mid-May, the docket reflected not a single filing from PSI -- no response to Harley-Davidson's motion for summary judgment, no motion for extension of time to file a brief, no motion seeking any other relief. By that time, Harley-Davidson's motions had been pending for approximately eight and one-half months, and nearly six and one-half months had passed since the filing of Harley-Davidson's reply brief. So, on May 12, 2011, the Court issued an 18-page opinion in which it deemed admitted Harley-Davidson's statement of facts, analyzed its various arguments, and granted both of Harley-Davidson's motions for summary judgment .
PSI filed the instant motion on June 2, 2011 . In it, PSI advises that following the filing of Harley-Davidson's summary judgment motions, the parties were beginning a second round of settlement discussions. PSI Mot. at ¶ 2. Counsel for PSI states that the "Court was advised of the parties' intentions, and though no official stay order was entered, the summary judgment was put 'on hold' during the negotiations." Id. at ¶ 3. Counsel for PSI has a "recollection * * * that he told the [Court's] Clerk that discussions were ongoing, and that [he] would report to the Court when the negotiations failed or were consummated." Id. According to PSI, after months of delays, the parties finally reached an agreement in principle "by early February, 2011." Id. at ¶ 5. However, certain details remained to be worked out. Id. & Ex. A thereto. By May 4, 2011, phone calls and communications between the parties left counsel for PSI with "the impression, if not actually expressed, that this was a 'done deal.'" Id. However, PSI admits (as it must) that the settlement agreement allegedly worked out between the parties was never executed. Id. at ¶¶ 6, 12. PSI contends that it had "meritorious defenses" to Harley-Davidson's motion for summary judgment, but did not present them because it believed that the lawsuit would settle.[FN 1] Id. at ¶ 8. PSI argues that the Court should vacate the entry of summary judgment to "accomplish justice," as "[t]he only obstacle for having a fully executed document reflecting the agreement was the result of [Harley-Davidson's] own delay." Id. at ¶ 12.
[FN 1] The defense that PSI references is "waiver." Notably, not only did PSI fail to raise this defense in opposition to summary judgment, it failed ever to plead this affirmative defense, as it was required to do, in its answer to Harley-Davidson's counterclaims. See, e.g. Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000); Fed. R. Civ. P. 8(c)(1).
Not surprisingly, Harley-Davidson takes a different view of the parties' course of settlement negotiations. Harley-Davidson agrees that both before and after it filed its motions for summary judgment, Harley-Davidson and PSI were engaged in settlement discussions. H-D Resp.  at 4-8. On October 1, 2010, PSI sought Harley-Davidson's agreement to extend the date set for its response to the motions, but Harley-Davidson refused to consent to an open-ended extension. Id. at 6. However, Harley-Davidson did agree to an extension through October 18, 2010 (the Court was never advised of this agreement). The parties continued to discuss settlement terms through the month of October.
On October 24, noting that PSI had not filed its response brief, counsel for Harley-Davidson wrote counsel for PSI to advise that PSI had missed the filing deadline and to continue to discuss settlement. On October 29, 2010, PSI again e-mailed counsel for PSI to remind him that PSI had missed its summary judgment deadline, writing: "We have never agreed to extend PSI's opposition to our motion for summary judgment beyond October 18. [* * *] We do not ...