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Berry v. Ulrich Hereford Ranch, Inc.

United States District Court, D. Kansas

August 8, 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 Plaintiff Richard Berry's Motion to Strike (ECF No. 52) two paragraphs from Defendants Peter Ulrich and Ulrich Hereford Ranch, Inc.'s First Amended Answer and Counterclaim (ECF No. 41). On July 18, 2017, the Court held an in-person 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 (for Lilybrook Herefords, Inc; Andy Schuepbach; and Hans Ulrich);
• Matthew Geiger (for Claresholm Veterinary Services, Ltd.).

         Neither the Lilybrook defendants (Lilybrook Herefords, Inc; Andy Schuepbach; and Hans Ulrich) nor Claresholm Veterinary Services, Ltd. took a position on the pending motion, and neither offered argument at hearing. After review of the parties' briefing and considering the arguments of counsel, Plaintiff's Motion to Strike (ECF No. 52) is DENIED as explained below.

         I. Nature of the Case

         The nature of this action was thoroughly explained in previous orders[1] and is not belabored here. Highly summarized, this litigation arises from the sale of cattle by a Canadian ranch to Plaintiff, a Kansas rancher. Plaintiff claims the cattle were in poor condition on their arrival to his ranch; many of the animals failed to thrive, and others died. In his Amended Complaint (ECF No. 26), Plaintiff asserts breach of contract, fraud and negligent representation claims against defendants Ulrich Hereford Ranch, Inc. and Peter Ulrich (the “Ulrich defendants”). He seeks over $2.9 million in damages, including $2.75 million in lost profits. Plaintiff's other claims against a related ranch, the auction company that facilitated the sale of some of the cattle, and the veterinarian who certified the animals' health were recently dismissed for this Court's lack of personal jurisdiction over the foreign defendants (Mem. and Order, ECF No. 70). Only the claims against the Ulrich defendants remain.[2]

         The Ulrich defendants deny Plaintiff's claims, and contend Plaintiff neglected to feed or care for the cattle properly after he received them. Defendants filed a Counterclaim (ECF Nos. 34, 41) against Plaintiff for breach of contract and unjust enrichment. They claim that, in addition to not caring for the cattle, Plaintiff failed to pay Defendants in full, and he failed to sufficiently insure the cattle.

         II. Procedural Posture

         After the Ulrich defendants responded to Plaintiff's initial Complaint and Amended Complaint, and the remaining defendants filed their dispositive motions, all parties participated in a Fed.R.Civ.P. 26(f) planning conference.[3] In light of the pending dispositive motions, [4] the defendants seeking dismissal sought a stay of discovery, which this Court granted, in part, by ordering full discovery postponed but requiring all parties to provide initial disclosures under Rule 26(a)(1)(A) (ECF No. 55). In light of the recent order dismissing those defendants seeking the stay, however, the Court will promptly set this matter for scheduling.

         III. Motion to Strike (ECF No. 52)

         Plaintiff now seeks to strike two paragraphs from the Ulrich defendants' First Amended Answer (ECF No. 41). The two paragraphs at issue read as follows:

126. Plaintiff has previously been found to have failed to pay for care of his cattle. In Bock v. Berry, Case No. 06SR-AC00044, Henry County, Missouri Circuit Court, the court entered judgment against Mr. Berry for failing to pay rent on a pasture and failing to pay expenses incurred to care for cattle.
127. Plaintiff also has been found to have engaged in deceptive conduct in connection with multiple livestock transactions. In State v. Berry, Case No. 2004 CV-135, Franklin County, Kansas District Court, the court entered judgment against Mr. Berry for engaging in deceptive practices and unconscionable conduct in connection with livestock transactions. The court also enjoined Mr. Berry from selling horses within the State of Kansas for 3 1/2 years.

(ECF No. 41, at 19-20.) Plaintiff claims the paragraphs contain insufficient defenses and are scandalous, and they are included solely for the purpose of harassing him. He also argues the allegations are an attempt to enter into the record evidence that is prohibited by Fed.R.Evid. 404(b), which precludes the use of improper character evidence. Plaintiff requests the paragraphs be stricken because they are scandalous and may cause him prejudice.

         In response, Defendants argue Plaintiff failed to meet his burden to prove the allegations in ¶¶ 126 - 127 of the Amended Answer are either immaterial or prejudicial, even though he must establish both in order for the paragraphs to be stricken. Defendants contend the allegations should not be stricken simply because they contain factual information in support of a defense, and Plaintiff's attempt to strike the paragraphs is an improper attempt to obtain an advance ruling on the admissibility of evidence. Defendants believe the allegations are neither scandalous nor harassing, and they are legitimately offered to ...


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