MANILDRA MILL. CORP. v. Ogilvie Mills, Inc.

• Decision Date: 23 August 1991
• Docket Number: Civ. A. No. 86-2457-S.
• Citation: 782 F. Supp. 104
• Parties: MANILDRA MILLING CORPORATION, Plaintiff, v. OGILVIE MILLS, INC., Defendant, Third-Party Plaintiff, and Counterclaimant, v. HENKEL CORPORATION, Henkel of America, Inc., Defendants, and Third-Party Defendants, and John Thomas Honan, Counterclaim Defendant.
• Court: U.S. District Court — District of Kansas

782 F. Supp. 104

MANILDRA MILLING CORPORATION, Plaintiff, v. OGILVIE MILLS, INC., Defendant, Third-Party Plaintiff, and Counterclaimant, v. HENKEL CORPORATION, Henkel of America, Inc., Defendants, and Third-Party Defendants, and John Thomas Honan, Counterclaim Defendant.

Civ. A. No. 86-2457-S.

United States District Court, D. Kansas.

August 23, 1991.

Edward L. Bailey, Carol B. Bonebrake, Charles T. Engel, Cosgrove, Webb & Oman, Topeka, Kan., Charles D. Horner, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., W. Stanley Walch, Mark Sableman, Thompson & Mitchell, St. Louis, Mo., William K. West, Wayne Jones, Cushman, Darby & Cushman, Washington, D.C., Tim S. Haverty, Dennis L. Davis, Hillix, Brewer, Hoffhaus, Whittaker & Wright, Kansas City, Mo., Murray J. Belman, Thompson & Mitchell, Washington, D.C., for plaintiff and counter-defendants.

Robert D. Benham, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kan., Bruce H. Weitzman, McDermott, Will & Emery, Chicago, Ill., Eugene Sabol, Paul Grandinetti, Mark Lee Hogge, Fisher, Christen & Sabol, Washington, D.C., Byron L. Gregory, McDermott, Will and Emery, Chicago, Ill., for defendant counter-claimant and third-party plaintiff.

Michelle M. Suter, McDowell, Rice & Smith, P.C., Overland Park, Kan., Robert P. Smith, McDowell, Rice and Smith, Kansas City, Mo., John D. Gould, Daniel W. McDonald, Alan G. Carlson, Merchant, Gould, Smith, Edell, Welter & Schmidt, P.A., Minneapolis, Minn., Robert L. Baechtold, David F. Ryan, Fitzpatrick, Cella, Harper & Scinto, New York City, for third-party defendants.

ORDER

SAFFELS, District Judge.

This matter is before the court on several discovery motions of defendant, counterclaimant and third-party plaintiff Ogilvie Mills, Inc. ("Ogilvie"). This action is set for trial on August 26, 1991, at Topeka, Kansas.

This case may be briefly summarized as follows. Plaintiff Manildra Milling Corporation ("Manildra") seeks a declaration of non-infringement, invalidity and/or unenforceability of two patents currently held by Ogilvie and formerly held by Henkel Corporation and Henkel of America, Inc. ("Henkel"). In addition, Manildra alleges antitrust violations and pendent common law claims against Ogilvie. Ogilvie has counterclaimed against Manildra, and its 100 percent shareholder John Thomas Honan ("Honan") for patent infringement. Ogilvie has also filed a third-party complaint against Henkel seeking indemnity for liability on a portion of Manildra's claims. This third-party claim has been bifurcated from the trial of the other claims.

Ogilvie moves the court to compel production of numerous documents which allegedly have been produced previously by Manildra. Some of these documents are updates of financial documents. Other requests include: trial exhibits marked in March 1991, and updated test data for the M-80, large-granule wheat starch.

Upon review, the court finds that Ogilvie's motion is made moot by Manildra's agreement to produce the requested updated discovery. Further, to the extent that Ogilvie is seeking discovery which it previously failed to request, the court finds that Ogilvie's motion should be denied. Discovery has been closed since 1989, the court finds that discovery simply should not be reopened on the eve of trial. Further, the court finds that Manildra's offer to produce the updated discovery is not conditioned upon Ogilvie's production of documents which it has previously refused to produce. Accordingly, the court will deny Ogilvie's motion to compel the production of documents for inspection and copying (Doc. 969).

Also before the court is...