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Berry v. Ulrich Hereford Ranch, Inc.

United States District Court, D. Kansas

June 9, 2017

RICHARD BERRY, d/b/a CLOV-LAN FARMS, Plaintiff,
v.
ULRICH HEREFORD RANCH, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER United States Magistrate Judge.

         This matter is before the Court on the Motion to Stay Discovery, filed by defendants Lilybrook Herefords, Inc., Andy Schuepbach, Hans Ulrich, Claresholm Veterinary Services, Ltd., and Balog Auction Services, Inc. (ECF No. 39). On June 2, 2017, the Court held a telephone hearing to discuss the pending motion. Participating were the following counsel:

• Richard Rhyne and Landon Magnusson (for Plaintiff);
• Catherine Theisen (for Ulrich Hereford Ranch, Inc.and Peter Ulrich);
• Meghan Lewis and Stephen Murphy (for Lilybrook Herefords, Inc; Andy Schuepbach, and Hans Ulrich);
• Matthew Geiger (for Claresholm Veterinary Services, Ltd.); and
• Michael Brown and Leilani Leighton (for Balog Auction Services, Inc.).

         After review of the parties' briefing and considering the arguments of counsel, Defendants' Motion to Stay is GRANTED in part and DENIED in part as explained below.

         I. Background [1]

         This litigation arises from the sale of cattle, originating from Canada, to a Kansas rancher. Defendant Hans Ulrich was the original owner and operator of Ulrich Hereford Ranch, Ltd., in Alberta, Canada, when in 2002, in some disputed fashion, he divided his business between his son and son-in-law. This division gave rise to two new business entities: 1) Ulrich Hereford Ranch, Inc., operated by his son, Peter Ulrich (referred to as the “Ulrich defendants”); and 2) Lilybrook Herefords, Inc., operated by Hans' son-in-law Andy Scheupbach (referred to as the “Lilybrook defendants”). Although the extent of Hans Ulrich's continued interest and control over either entity is disputed, in both the pleadings and currently pending motions in this matter, Hans Ulrich is also generally referred to as one of the Lilybrook defendants.

         In late 2014, plaintiff Richard Berry, doing business as Clov-Lan Farms in Franklin County, Kansas, contacted Peter Ulrich to inquire about purchasing cattle. Although Plaintiff initially agreed to purchase cattle from both the Lilybrook and Ulrich operations, the agreement with Lilybrook was terminated for disputed reasons. Plaintiff claims Andy Scheupbach told him to purchase all of his desired cattle from the Ulrich defendants, based on the relationships between the defendant ranchers and the cattle herds. Plaintiff further contends the Ulrich and Lilybrook defendants work together to build and maintain their respective herds. The ranching defendants deny those claims. However, the parties agree Plaintiff ultimately received just over 100 head of cattle, over three shipments, from the Ulrich defendants.

         Of those cattle Plaintiff purchased from the Ulrich defendants, he bought nine of them-registered breeding bulls-through a public sale administered by defendant Balog Auction Services, Inc. Plaintiff contends Balog vouched for the quality of those bulls through its auction advertising. All of the cattle Plaintiff purchased from the Ulrich defendants were inspected by Claresholm Veterinary Services, Ltd., prior to export, and Claresholm issued a Veterinary Health Certificate for each shipment.

         Plaintiff claims the cattle were obviously in poor condition on their arrival to his ranch. Many of the animals lost significant weight soon after their arrival and generally failed to thrive, and a number of the cattle died. Because the cattle were unfit to breed and raise for economic benefit, Plaintiff sold the surviving cattle. In his eight-count Amended Complaint (ECF No. 26), Plaintiff asserts a breach of contract claim against the Ulrich defendants; fraud and negligent misrepresentation claims against the Ulrich and Lilybrook defendants; and negligent misrepresentation and negligence claims against both Claresholm and Balog. Plaintiff seeks damages in the form of actual expenses, lost future profits, and punitive damages.

         The Ulrich defendants filed a Counterclaim against Plaintiff for breach of contract and unjust enrichment. They claim Plaintiff failed to pay them in full, failed to provide reasonable care for the cattle or to properly insure the cattle, and failed to use the proceeds from sales of the cattle to pay the Ulrich defendants.

         II. Procedural Posture

         The Ulrich defendants answered Plaintiff's initial Complaint and Amended Complaint and asserted their counterclaims (ECF Nos. 34, 41). Plaintiff disclosed his expert witnesses under Fed.R.Civ.P. 26(a)(2) (ECF No. 46), served his initial disclosures (ECF No. 47), and all parties, at Plaintiff's urging, participated in a Rule 26(f) planning conference.[2] However, excluding the ...


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