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Broadband Management Solutions, LLC v. Dish Network Service L.L.C.

February 16, 2006

BROADBAND MANAGEMENT SOLUTIONS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
DISH NETWORK SERVICE L.L.C., A COLORADO LIMITED LIABILITY COMPANY, FORMERLY KNOWN AS DISH NETWORK SERVICE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge Edward W. Nottingham

ORDER AND MEMORANDUM OF DECISION

This is a breach of contract case. Plaintiff Broadband Management Solutions, LLC, alleges that Defendant Dish Network Service, LLC, breached the contract between them by failing to provide written notice upon acceptance of certain software as defined by the agreement between the parties. This matter is before the court on (1) "Defendant's Motion For Summary Judgment With Memorandum and Points of Authority in Support thereof," filed April 18, 2005;

(2) "Plaintiff's Motion For Summary Judgment On Its Breach of Contract Claim," filed April 18, 2005; (3) "Unopposed Motion For The Court To Accept Defendant's Statement of Undisputed Facts and Exhibits Thereto As Submitted and Filed," filed May 4, 2005; (4) Defendant's "Motion to Exclude Testimony of Brooks L. Hillard and Brief in Support Thereof," filed February 3, 2006; (5) Defendant's "Motion to Exclude Testimony of Melinda Harper and Brief in Support Thereof," filed February 3, 2006; (6) Defendant's "Motion to Exclude Testimony of Peter M. Crafts and Brief in Support Thereof," filed February 3, 2006. Jurisdiction is based on 28 U.S.C. § 1332, diversity of citizenship.

1. Procedural History

On July 20, 2004, Plaintiff filed a complaint in this court. (Compl. and Jury Demand [filed July 20, 2004].) Plaintiff asserted claims for breach of contract and promissory estoppel. (Id. ¶¶ 12--19.) On August 23, 2004, Defendant filed a motion to dismiss. (Def.'s Mot. to Dismiss [filed Aug. 23, 2004].) On September 22, 2004, Plaintiff filed a response to Defendant's motion to dismiss. (Pl.'s Resp. to Def.'s Mot. to Dismiss [filed Sept. 15, 2004].)

On September 15, 2004, Plaintiff filed its first amended complaint. (First Am. Compl. and Jury Demand [filed Sept. 15, 2004] [hereinafter "Compl."].) Plaintiff did not assert any new claims. (Id.) On October 8, 2004, Defendant filed a motion to dismiss Plaintiff's first amended complaint. (Def.'s Mot. to Dismiss Pl.'s First Am. Compl. Pursuant to Fed. R. Civ. P. 12[b][6] [filed Oct. 8, 2004].) This motion rendered moot the previous motion to dismiss. (Minute Order [Feb. 25, 2005].) On November 1, 2004, Plaintiff filed a response to Defendant's motion to dismiss. (Pl.'s Resp. to Mot. to Dismiss First Am. Compl. [filed Nov. 1, 2004].) On November 16, 2004, Defendant filed a reply in support of its motion. (Def.'s Reply to Pl.'s Resp. Mot. to Dismiss First Am. Compl. [filed Nov. 16, 2004].) On September 16, 2005, I granted Defendant's motion to dismiss as to Plaintiff's promissory estoppel claim and denied the motion as to Plaintiff's breach of contract claim. (Order and Mem. of Decision [filed Sept. 16, 2005].)

On April 18, 2005, Defendant filed a motion for summary judgment. (Def.'s Mot. for Summ. J. with Mem. and Points of Authority in Supp. Thereof [filed Apr. 18, 2005] [hereinafter "Def.'s Br."].) Defendant contends that summary judgment is appropriate because "[Plaintiff] failed to meet its contractual obligations with respect to delivering to [Defendant] a satisfactory Release 1 product that met [Defendant's] contractually agreed upon business needs." (Id. at 6.) Defendant's brief did not comply with my local rules and procedures. (Def.'s Br.) On April 18, 2005, Plaintiff filed a motion for summary judgment on its breach of contract claim. (Pl.'s Mot. for Summ. J. on Its Breach of Contract Claim [filed Apr. 18, 2005] [hereinafter "Pl.'s Br."].) Plaintiff argues that Defendant breached the agreement between them because it failed to provide Plaintiff written acceptance of the product. (Id. at 2.)

On May 4, 2005, Defendant acknowledged its non-compliance with my local rules and procedures and filed a motion requesting that the court accept its motion despite the non-compliance. (Unopposed Mot. for The Court to Accept Def.'s Statement of Undisputed Facts and Exhibits Thereto As Submitted and Filed [filed May 4, 2005] [hereinafter "Mot. to Accept"].) Specifically, Defendant suggested that "the most efficient first step procedure would be to request that the [c]court accept the Statement of Undisputed Facts and the incorrectly marked exhibits as submitted and filed. This procedure will save the complications, inefficiencies[,] and inconvenience for all concerned of resubmitting the numerous exhibits . . . ." (Id. at 2.)

On May 5, 2005, the parties filed a stipulated motion to modify the summary judgment briefing schedule. (Stipulated Mot. Regarding Summ. J. Briefing Schedule [filed May 5, 2005].) On May 6, 2005, I granted the parties' stipulated motion and set the briefing schedule as follows: "[t]he responses to the summary judgment motions shall be filed on or before June 21, 2005. Reply briefs shall be filed on or before July 6, 2005." (Minute Order [May 6, 2005].)

On June 8, 2005, the parties filed a second stipulated motion regarding the summary judgment briefing schedule. (Stipulated Mot. Regarding Summ. J. Briefing Schedule [filed June 8, 2005].) The parties requested a forty-five day extension. (Id.) On June 10, 2005, I granted the parties' motion and set the briefing schedule as follows: "responses to the summary judgment motions shall be filed on or before August 8, 2005 and the replies shall be filed on or before August 23, 2005." (Minute Order [June 10, 2005].)

On July 21, 2005, the parties filed a third stipulated motion regarding the summary judgment briefing schedule. (Stipulated Mot. Regarding Summ. J. Briefing Schedule [filed July 21, 2005].) The parties requested that the court extend the deadline for "sixty days to permit the parties to engage in settlement discussions." (Id.) On July 22, 2005, I granted the parties' stipulated motion. (Minute Order [July 22, 2005].) Specifically, the responses and replies were to be filed by September 29, 2005 and October 14, 2005, respectively. (Id.)

On September 9, 2005, the parties filed a fourth stipulated motion to alter the summary judgment briefing schedule. (Stipulated Mot. for Extension of Time to Complete Summ. J. Briefing and Remaining Dep. [filed Sept. 9, 2005].) On September 12, 2005, I granted the parties' motion and reset the deadlines for responses and replies to October 28, 2005 and November 14, 2005, respectively. (Minute Order [Sept. 12, 2005].)

On September 29, 2005, Defendant filed an answer to Plaintiff's amended complaint and a counterclaim against Plaintiff. (Def.'s Original Answer, Affirmative Defenses, and Countercl. [filed Sept. 29, 2005].) On October 7, 2005, Plaintiff filed an answer to Defendant's counterclaim. (Pl.'s Resp. to Def.'s Countercl. [filed Oct. 7, 2005].)

On October 12, 2005, the parties filed a fifth stipulated motion for extension of time to file responses and replies to the outstanding motions for summary judgment. (Stipulated Mot. Regarding Summ. J. Briefing Schedule & Completion of Outstanding Deposition [filed Oct. 12, 2005].) On October 25, 2005, I granted the parties' motion and re-set the deadlines for responses and ...


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