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UNION CARBIDE v. M/T "ENCOUNTER"

April 7, 2003

UNION CARBIDE, PLAINTIFF
v.
M/T "ENCOUNTER" ET AL., DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

ORDER

Plaintiff has moved for partial summary judgment striking the affirmative defense set forth at paragraph 9 of Defendants' Answer; Defendants have cross-moved to dismiss the complaint on statute of limitations grounds and for failure to make discovery. The Court having reviewed thoroughly all of the parties' submissions in respect of these motions, it is hereby

ORDERED, that Plaintiff's motion for partial summary judgment is denied, as there are material issues of fact as to whether Plaintiff is properly authorized to bring at least that portion of its claim that arises from losses alleged to have been incurred by Mitsui (or as to which Mitsui bore the risk of loss) as a result of the alleged nonconforming shipment; and further

ORDERED, that Defendants' motion to dismiss the complaint on statute of limitations grounds is denied, as there are material issues of fact as to whether Plaintiff is properly authorized to bring claims on Mitsui's behalf and as to whether claims asserted by Plaintiff as to its own alleged losses are timely; and further

ORDERED, that Defendants' motion to dismiss the complaint for failure to make discovery is denied, as there is no record of an order of this Court requiring Plaintiff to produce Mitsui witnesses as its own; and further

ORDERED, that the parties shall prepare for and appear at a pre-trial conference in accordance with the Preliminary Pre-Trial Order issued simultaneously herewith.

PRELIMINARY PRE-TRIAL ORDER

1. It is hereby ORDERED that a pre-trial conference shall be held in the above-captioned matter on May 9, 2003 at 3:00 p.m. in Courtroom No. 444, 40 Foley Square, New York, New York 10007. It is further
2. ORDERED that counsel*fn1 for the parties confer preliminarily at least twenty-one (21) days prior to the date set forth in paragraph 1 above to discuss the following matters:
a. Facts that are not disputed and facts that are in dispute.
b. The disclosures required by Fed.R.Civ.P. 26(a)(1).

c. Contested and uncontested legal issues.

d. Settlement.

e. Whether mediation might facilitate resolution of the case.
f. Whether the case is to be tried to a jury.
g. Whether each party consents to trial of the case by a magistrate judge.
h. Anticipated further discovery and an appropriate deadline for the conclusion of discovery.
i. Whether expert witness evidence will be required, and appropriate deadlines for expert witness discovery.
j. Whether dispositive motions may be appropriate, and a deadline for such motions.
k. Evidence to be presented at trial and the length of time expected to be required for the presentation of evidence at trial.
It is further
3. ORDERED that counsel for all parties shall confer and shall prepare, execute and file with the Court, with one courtesy copy provided to chambers of the undersigned, no later than seven (7) days before the date set forth in paragraph 1 above a single document captioned PRE-CONFERENCE STATEMENT, which shall be signed by all counsel, which shall set forth the following information, and which shall constitute the written report required by Fed R.Civ.P. 26(f) if no such report has previously been submitted:
a. A concise statement of the nature of this action.
b. The status of settlement discussions and the prospects for settlement of the action in whole or in part, provided that the Pre-Conference Statement shall not disclose to the Court specific settlement offers or demands.
c. A concise statement of each party's position as to the basis of this Court's jurisdiction of the action, with citations to all statutes relied upon and relevant facts as to citizenship and jurisdictional amount.
d. A ...

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