United States District Court, D. Idaho
NELSON-RICKS CHEESE COMPANY, INC., an Idaho corporation, Plaintiff,
LAKEVIEW CHEESE COMPANY, LLC, a Nevada limited liability company, Defendant.
MEMORANDUM DECISION AND ORDER
Honorable David C. Nye, Judge.
before the Court are numerous Motions filed by the parties in
this case. On December 13, 2017, Defendant Lakeview Cheese
Company (“Lakeview”) filed a Motion for Leave to
File Amended Answer to First Amended Complaint. Dkt. 66. In
this Motion, Lakeview seeks to add an abuse of process
counterclaim. Id. Plaintiff Nelson-Ricks Cheese
Company (“NRCC”) responded to the Motion and
Lakeview replied. Following Lakeview's reply, NRCC filed
a Motion to Strike an affidavit attached to Lakeview's
reply. Dkt. 69.
then filed a Motion for Summary Judgment. Dkt. 70. NRCC
responded to the Motion for Summary Judgment and
contemporaneously filed a Motion to Seal a document filed in
support of its response. Dkt. 74.
has also filed a Motion to Exclude certain experts'
testimony related to its Motion for Summary Judgment. Dkt.
Court prefers to hold oral argument on all dispositive
motions and plans to do so for the pending Motion for Summary
Judgment. So while the Court will deal with that
motion in due course, the Court will take up the other
motions at this time without oral argument. Consistent with
the analysis below, the Court will DENY Lakeview's Motion
to Amend, DENY NRCC's Motion to Strike, and GRANT
NRCC's Motion to Seal.
Motion to Amend
September 29, 2017, NRCC notified Lakeview that it had served
subpoenas on 15 Lakeview customers seeking financial
information related to Lakeview's sales over a five-year
period. On October 20, 2017, Lakeview filed an Emergency
Motion to Quash the Subpoenas. Dkt. 47. The Court granted the
same on October 26, 2017. Dkt. 57.
decision, the Court reiterated the burden that third-party
subpoenas can cause and noted some of the problems that had
been-and/or could have been-caused by the issuance of
subpoenas in this case. Id. The Court noted that
when NRCC served these subpoenas it failed to include a copy
of the protective order as required, and that the subpoenas
directed the third-parties to tender their responses to
Greenberg Cheese Company-a nonparty to this lawsuit, a direct
competitor of Lakeview's, and the principle place of
business of NRCC's CEO, Michael Greenberg. Id.
then filed the instant Motion to Amend its answer seeking to
add an abuse of process claim against NRCC based upon the
Rule of Civil Procedure 15(a) provides that, once a
responsive pleading has been served, a party may amend its
pleading “only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” Fed.R.Civ.P.
15(a)(2). However, when-as in this case-a party files a
motion to amend after the Court's case management
deadline to amend has passed, district courts in the Ninth
Circuit apply Federal Rule of Civil Procedure 16(b), followed
by a Rule15(a) analysis. See Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule
16(b), the movant must demonstrate good cause to amend.
Id. at 609.
abuse of process claim under Idaho law involves two elements:
(1) a willful act in the use of legal process not proper in
the regular course of the proceeding that was (2) committed
for an ulterior, improper purpose. Berkshire Investments,
LLC v. Taylor, 153 Idaho 73, 84, 278 P.3d 943, 954
(2012) (citing Badell v. Beeks, 115 Idaho 101, 104,
765 P.2d 126, 129 (1988)).