United States District Court, D. Nevada
before the court is plaintiff/counter-defendant Nutri
Pharmaceuticals Research, Inc.'s
(“plaintiff”) motion for partial summary
judgment. (ECF No. 22). Defendant/counter-claimant Stauber
Performance Ingredients, Inc. (“defendant”) filed
a response (ECF No. 27), to which plaintiff replied (ECF No.
before the court is defendant's motion in limine. (ECF
No. 29). Plaintiff filed a response (ECF No. 33), to which
defendant replied (ECF No. 34).
instant action arises from a series of allegedly-breached
contracts. On one hand, plaintiff claims that defendant
failed to pay for thirty-two shipments of goods. (ECF No. 1).
On the other hand, defendant claims that plaintiff breached
three unrelated contracts when it shipped rancid goods. (ECF
manufactures and supplies “nutritional bioactive
supplements.” (ECF No. 22 at 1). Defendant provides
ingredients to the food, nutritional, pharmaceutical,
cosmetic, and pet care industries. Id. at 2. The
parties first began doing business with one another in
October 2007. Id. Defendant would purchase and
resell materials that plaintiff manufactured. Id.
This business relationship continued without incident for
almost ten years. Id.
problems began to arise. (ECF No. 29 at 2). Defendant ordered
borage oil powder from plaintiff in December 2015, and
against in January 2016, for one of its customers, Glanbia
Nutritionals, Inc. (“Glanbia”). Id. at
3. Glanbia used the borage oil powder to make gummies but,
when the gummies were finished in January 2017,
informed defendant that the gummies smelled rancid.
Id. Glanbia attributed the smell to the borage oil
powder. Id. Defendant tested the borage oil powder
and found that it had high peroxide values, which were
consistent with rancidity. Id. at 3-4.
this incident, Glanbia tested the borage oil powder that it
had ordered in June 2016, before it produced rancid-smelling
gummies. Id. at 4. The test showed a high peroxide
value, which is consistent with rancidity. Id.
ordered conjugated linoleic acid oil powder for another one
of its customers, Milk Specialties Global Events
(“Milk”), in March 2017, which plaintiff
delivered in May. Id. at 2-3. Milk rejected the
conjugated linoleic acid oil powder because of a rancid
smell. Id. at 3. Defendant tested the conjugated
linoleic acid oil powder and found that it had high peroxide
values, which was consistent with rancidity. Id. at
refunded both Glanbia and Milk for their orders. Id.
at 4. Plaintiff denied responsibility for the rancid
products. (ECF No. 33 at 2 (plaintiff maintains that the
products “became rancid due to factors beyond [its]
problems arose between August 2017 and October 2017. (ECF No.
22 at 2). Defendant placed thirty-two purchase orders with
plaintiff for various products, and plaintiff delivered them
to defendant's customers. Id. Although
defendant's customers received the goods as required by
the thirty-two purchase orders, defendant refused to pay for
the goods. Id. Defendant claims that it is entitled
to offset any monies owed to plaintiff for the thirty-two
shipments because plaintiff breached the Glanbia and Milk
contracts by delivering rancid goods. (ECF No. 27 at 6-7).
now moves for summary judgment only on its claims against
defendant. (ECF No. 22). Defendant moves to exclude the
opinion and testimony of plaintiff's rebuttal expert.
(ECF No. 29).
Motion for summary judgment
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by ...