Cargill Incorporated v. BingenheimerRESPONSE to MotionE.D. Wis.December 7, 2018UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN CARGILL INCORPORATED, Plaintiff/Counter-Defendant, v. Case No. 17-CV-300 DAVID BINGENHEIMER, Defendant/Counter-Plaintiff. BINGENHEIMER’S RESPONSE TO PLAINTIFF/COUNTER-DEFENDANT’S REQUEST FOR AN EXTENSION TO: Cargill Incorporated c/o Attorney David Walton Cozen O’Connor 123 N. Wacker Drive, Suite 1800 Chicago, IL 60606 The defendant/counter-plaintiff, David Bingenheimer, by his attorney, William R. Rettko, hereby responds to the plaintiff/counter-defendant’s request for an extension of time. I. CARGILL’S REQUEST FOR AN EXTENSION MUST BE DENIED. The plaintiff/counter-defendant, Cargill, made a request to extend time to conduct additional discovery on December 3, 2018 or two days after the discovery cut-off of December 1, 2018 per this Court’s Order of July 27, 2018. Therefore, the motion is an after-the-fact request for an extension without an explanation for excusable neglect. However, even if the motion is not time barred, it must be denied in any event. Cargill, although mentioning several events, failed to explain the full story surrounding this case. To begin with, Cargill filed its Complaint on March 2, 2017 and served it on the defendant, Bingenheimer on March 21, 2017. (Document #14, ⁋s 1-2). By March 25, 2017, this Court entered an Order for a Preliminary Injunction where by defendant, Bingenheimer was required to turn over all of Cargill’s tangible property. (Id., at ⁋ 3). By April 7, 2017, Bingenheimer brought his counter- Case 2:17-cv-00300-LA Filed 12/07/18 Page 1 of 3 Document 39 2 claim and Answered Cargill’s Complaint with Cargill’s answer to the counter-claim being due on April 28, 2017. (Id., at ⁋ 4). By then, the parties had been working with the court appointed expert to do a forensic exam of the Cargill property that was in Bingenheimer’ s possession. (Id., at ⁋ 5). However, Cargill sought an extension to answer the Bingenheimer counter-claim to May 12, 2017 which Bingenheimer did not oppose. (Id., at ⁋⁋ 6-7). A scheduling conference was then set for June 28, 2017 on May 15, 2017. (Document # 16). At the June 28, 2017 Scheduling Conference, the discovery cut-off was set for April 1, 2018. (Document # 21 at ⁋ 4 (a)). Then on March 22, 2018, the parties requested the discovery to be extended to August 1, 2018 among other things including the extension disclosing additional experts and filing dispositive motions. (Document # 30 at ⁋ 7). This court entered an Order on March 23, 2018 allowing for the parties agreed to extensions. (Document # 31). This was then followed by the party’s request to mediate with Judge Adelman which was filed on May 23, 2018. (Document # 32). This court then entered the Order on May 26, 2018 setting mediation with Judge Adelman to occur on June 28, 2018. (Document #33). Mediation did not resolve this case. On July 3, 2018, the attorneys had a phone conference whereby Cargill needed additional time to conduct discovery and to respond to outstanding discovery requests by Bingenheimer beyond August 1, 2018. On July 23, 2018, Bingenheimer’ s attorney notified the Cargill attorneys that Bingenheimer had given authority for one last extension. (Rettko Affidavit at Exhibit 1). As a result, the parties again filed a joint motion for an extension of discovery and dispositive motions whereby discovery would be concluded by December 1, 2018 and dispositive motions were to be filed by January 18, 2019. (Document #36). This court then entered an Order on July 27, 2018 granting the parties’ request. (Document # 37). Since that time, Bingenheimer followed up on outstanding discovery requests to his Second Request for Documents and served his Third Request for Documents on September 14, 2018 to which Cargill responded to around October 18, 2018. (Rettko Affidavit at ⁋ 3). Then on October 31, 2018, Cargill began to attempt to schedule depositions for the author of the March 3, 2018 Case 2:17-cv-00300-LA Filed 12/07/18 Page 2 of 3 Document 39 3 BizTimes article and for Mike Flett who was the recruiter that connected Bingenheimer with M & I after Bingenheimer’ s lay-off from Cargill. (Rettko Affidavit at ⁋ 4). The BizTimes article author’s deposition was set between the parties on November 5, 2018 to occur on November 26, 2018. (Rettko Affidavit at ⁋ 5). The recruiter’s deposition has never been set although Bingenheimer offered to allow the deposition to occur on five suggested dates in December and if those didn’t work, we could work on dates after January 3, 2019. (Rettko Affidavit at ⁋ 6). In other words, Bingenheimer was open to working with Cargill to get that deposition done as it was requested prior to the end of the discovery cut-off. As for the discovery regarding M & I documents, Cargill did mention it would need to do an additional deposition and document request of M & I back in July before the extension of discovery to December 1, 2018 was agreed to. (Rettko Affidavit at ⁋ 7). Cargill did request an extension on November 30, 2018, but prior to the current motion to extend time, Bingenheimer has not received any other notification of Cargill’s efforts or lack thereof to conduct such discovery. (Id.). As such, defendant/counter plaintiff, Bingenheimer, opposes any continued extensions for discovery as Cargill has not been diligent in its efforts, all of which will cause an unnecessary delay and add to the expenses of this case. The need to conduct additional discovery is only due to Cargill’s lack of effort since July 2018. Dated this 7th day of December 2018. RETTKO LAW OFFICES, S.C. Counsel for Defendant/Counter-Plaintiff William R. Rettko State Bar No. 1002608 15460 W. Capitol Drive, Suite 150 Brookfield, WI 53005 (262) 783-7200 Case 2:17-cv-00300-LA Filed 12/07/18 Page 3 of 3 Document 39
