Peter Kiewit Sons', Inc. et al v. ATSER
| Peter Kiewit Sons', Inc. and Kiewit Corporation |
| ATSER |
| 8:2008cv00541 |
| December 30, 2008 |
| US District Court for the District of Nebraska |
| Contract: Other Office |
| Douglas |
| Laurie Smith Camp |
| Thomas D. Thalken |
| Plaintiff |
| Diversity |
| 28:1332 Diversity-Breach of Contract |
Follow case documents by RSS
Available Case Documents
The following documents for this case are available for you to view or download:
| Document Text |
|---|
Filing
319
ORDER to Withdraw Exhibits or to Show Cause Why Exhibits Should Not be Destroyed. Ordered by Judge Laurie Smith Camp. (MLF, )
|
|
Filing
316
FINDINGS OF FACT AND CONCLUSIONS OF LAW - Kiewit's action will be dismissed, with prejudice, and a separate Judgment will be entered, dismissing all claims and counterclaims, with prejudice. Ordered by Judge Laurie Smith Camp. (JAE)
|
|
Filing
305
AMENDED ORDER RE: TRIAL PREPARATION (CIVIL NON-JURY TRIAL). Ordered by Judge Laurie Smith Camp. (JB)
|
|
Filing
302
ORDER that parties shall amend the Pretrial Order in this matter to conform to the remaining issue to be tried and present a Final Pretrial Order to the undersigned magistrate judge by close of business on Wednesday, April 7, 2010; trial on the " ;source code escrow" issue shall commence before Judge Laurie Smith Camp at 8:30 a.m. on April 12, 2010, in Courtroom No. 2, Third Floor, Roman L. Hruska U.S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska. Ordered by Magistrate Judge Thomas D. Thalken. (CJP)
|
|
Filing
301
ORDER - Defendant ATSER LP's Motion in Limine 258 is granted in part and denied in part as follows: a. Kiewit will not present evidence of, or make reference to, litigation in a United States District Court in Texas between ATSER Research Tech nologies, Inc., and Raba-Kistner Infrastructure, Inc., involving a patent for technology used in the Assure-IT 5.0 software; b. the parties will not refer to settlement negotiations; and c. the remainder of the motion is otherwise denied; 2. The Moti ons in Limine submitted by Plaintiffs Peter Kiewit Sons' Inc. and Kiewit Corporation ("Kiewit") are granted in part and denied in part as follows:a. Filing No. 261 is denied; b. Filing No. 264 is denied; c. Filing No. 267 is deni ed, provided, however, that the parties will be bound by the Court's earlier rulings in its Memorandum and Order of January 22, 2010 (Filing No. 225 );d. Filing No. 270 is denied; and e. Filing No. 273 is granted.Ordered by Judge Laurie Smith Camp. (JAE)
|
|
Filing
291
ORDER that the court will hold a settlement conference in this case beginning at 8:30 a.m. on Friday, April 2, 2010, in Courtroom No. 7, Second Floor, Roman L. Hruska U.S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska. Each party shall supply the undersigned magistrate judge with a memorandum of the party's settlement position together with a recitation of the settlement history of the case; such memorandum shall capsulize the issues and be submitted to the undersigned magistrate judge NO LATER THAN NOON on Thursday, April 1, 2010; the submission shall not be filed but shall be submitted by fax (402.661.7345), e-mail (thalken@ned.uscourts.gov) or by hand delivery to the undersigned's chambers, Suite 2271. Ordered by Magistrate Judge Thomas D. Thalken. (CJP)
|
|
Filing
279
ORDER RE: TRIAL PREPARATION (Civil Jury Trial). Ordered by Judge Laurie Smith Camp. (JB)
|
|
Filing
277
ORDER denying 247 Motion for Protective Order; Granting 251 Motion to Compel. Defendant ATSER shall produce the Fed.R.Civ.P. 30(b)(6) witness for two hours to complete a Fed.R.Civ.P. 30(b)(6) deposition. Ordered by Magistrate Judge Thomas D. Thalken. (PMD)
|
|
Filing
225
MEMORANDUM AND ORDER granting in part and denying in part 199 Motion for Summary Judgment; motion is granted with respect toDefendant ATSER, LPs claim against Peter Kiewit Sons, Inc., for alleged misappropriation of trade secrets in violation of th e Nebraska Trade SecretsAct, but that claim will proceed under the law of the State of Texas; granting in part and denying in part 201 Motion for Summary Judgment; motion is granted with respect to the limitation on Plaintiffs damages,i.e., $30,000; The Motions are denied in all other respects. Ordered by Judge Laurie Smith Camp. (ADB, )
|
|
Filing
210
ORDER - The parties' Joint Motion to Extend the Deadline for Filing Reply Briefs in Support of Motions for Summary Judgment 209 is granted; and The parties shall file their reply briefs, if any, on or before December 9, 2009. Ordered by Judge Laurie Smith Camp. (KBJ)
|
|
Filing
204
MEMORANDUM AND ORDER - The Magistrate Judge's August 25, 2009, Order (within Filing No. 171 ) is affirmed as modified in paragraph 5 below; The Magistrate Judge's Report and Recommendation (within Filing No. 171 ) is adopted in its entire ty. Plaintiffs' Statement of Appeal and Statement of Objection 181 is denied. Defendant's Statement of Appeal and Statement of Objection 178 is granted in part and denied in part. Plaintiffs shall pay reasonable fees of $282,229 .15 to ATSER for the costs associated with the transfer of Assure-IT to a Kiewit server, including preparation of the migration plan, transfer of Assure-IT to Kiewit server (Phases 1-5), hosting services, test server, and miscellaneous unopposed char ges; Plaintiffs shall pay reasonable fees of $13,600 to Defendant for maintenance and help desk services and $3,000 for the BCMot update, but no additional fees related to vehicle charges; and Plaintiffs' Motion to Reconsider/Appeal of Magistrate Judge's Order 172 is denied as moot. Ordered by Judge Laurie Smith Camp. (KBJ)
|
|
Filing
194
ORDER - The plaintiffs' Motion for Leave to Amend the Court's Order Setting Final Schedule for Progression of Case and Amend its Reply 175 is granted. The plaintiffs shall have to on or before October 13, 2009, to file the Amended Reply to Defendant's Counterclaim. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ)
|
|
Filing
185
ORDER denying 183 Plaintiffs' Motion to Strike. Ordered by Judge Laurie Smith Camp. (JSF)
|
|
Filing
174
ORDER that the Clerk of Court shall modify the docket entry for the plaintiffs' 172 Motion for Reconsideration in accordance with this order. The plaintiffs shall have to on or before September 15, 2009, to amend the Motion for Reconsideration (Filing No. 172), if desired. The defendant shall have to on or before September 29, 2009, to respond to the plaintiffs' appeal of the August 25, 2009, 171 Report and Recommendation. Ordered by Magistrate Judge Thomas D. Thalken. (ADB, )
|
|
Filing
171
ORDER and REPORT AND RECOMMENDATION - IT IS RECOMMENDED TO JUDGE LAURIE SMITH CAMP that: The earlier award of $6,000.00 to ATSER for maintenance and help desk services be modified to require Kiewit to pay ATSER an additional sum of $13,800 for maintenance and help desk services; and a reasonable fee of $3,000 for the BCMoT update; but no additional fees related to vehicle charges. ORDER: Kiewit's objections 51 , 73 , 88 , 109 , and 135 to ATSERs requests for payment ar e granted in part and denied in part as set forth herein. Kiewit shall pay reasonable fees of $275,354.15 to ATSER for the transfer of Assure-IT to a Kiewit server. ATSER's Motion to Strike 163 is granted. Pursuant to NECivR 72.2 and 7 2.3 any appeal of this Order or objection to this Report and Recommendation shall be filed with the Clerk of the Court within ten (10) business days after being served with a copy of this Order and Report and Recommendation. Failure to timely appeal or object may constitute a waiver of any appeal or objection. The brief in support of any appeal or objection shall be filed at the time of filing such appeal or objection. Failure to file a brief in support of any appeal or objectionmay be deemed an abandonment of the appeal or objection. Ordered by Magistrate Judge Thomas D. Thalken. (PART 1 OF 2) (KBJ) Modified on 8/26/2009 to reflect that this is a part 1 of a 2 part entry (KBJ).
|
|
Filing
158
MEMORANDUM AND ORDER that this matter is before the Court once more on Plaintiffs' Motion for Preliminary Injunction (Filing No. 3), following an evidentiary hearing held on July 6, 2009. IT IS ORDERED that the preliminary injunctive relief granted to Plaintiff Peter Kiewit Sons', Inc. and Kiewit Corporation in the Court's Memorandum and Order 31 has expired by the Order's own terms and no further preliminary relief is ordered. Ordered by Judge Laurie Smith Camp. (ADB, )
|
|
Filing
138
ORDER - Defendant's Motion for Leave to File Supplemental Brief Instanter Regarding Plaintiffs' Motion for Preliminary Injunction 137 is grantedand the attached brief is deemed filed instanter. Ordered by Judge Laurie Smith Camp. (KBJ)
|
|
Filing
127
ORDER SETTING SCHEDULE FOR PROGRESSION OF A CIVIL CASE - The defendant's Motion to Compel Production of Witnesses for Deposition and Request for Expedited Consideration 122 is granted to the extent the defendant may take the telephone depositi on of Cochran and Murphy at an agreed upon time prior to the preliminary injunction hearing before Judge Laurie Smith Camp on July 6, 2009. Depositions due 1/29/10. Pretrial Conference set for 3/19/2010 at 2:00 PM in chambers before Magistrate Judge Thomas D. Thalken. Trial is set to commence, at the court's call, during the week of April 13, 2010, in Omaha, Nebraska, before the Honorable Laurie Smith Camp and a jury. Ordered by Magistrate Judge Thomas D. Thalken. (JAE)
|
|
Filing
97
ORDER - On the oral motion of counsel for the parties, the telephone planning conference previously set for June 15, 2009 at 10:00 a.m. is cancelled and is rescheduled for June 19, 2009 at 11:00 a.m. before the undersigned magistrate judge. Plaintiff's counsel shall initiate the telephone conference. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ)
|
|
Filing
87
MEMORANDUM AND ORDER - The Defendant's Motion to Dismiss 19 is granted in part and denied in part, as follows: Plaintiffs' Second Claim for Relief, based on the covenant of good faith and fair dealing, is dismissed; and The Motion to Dismiss 19 is otherwise denied. The Plaintiff's Motion to Strike 45 is denied as moot; and The Defendant shall respond to the Complaint on or before June 2, 2009. Ordered by Judge Laurie Smith Camp. (KBJ)
|
|
Filing
74
ORDER - The April 15, 2009 Order 70 is amended as follows. The plaintiffs' Objections to the interim payments 51 and 73 shall be resolved pursuant to the following briefing schedule: The plaintiffs shall file a brief by May 8, 2009. The defendant shall file a response brief by May 26, 2009. The plaintiffs may file a reply brief by June 2, 2009. Briefs shall set forth the basis for the reasonableness of the charges contained in the February 10, 2009, request for interim payment [41 ] and the April 6, 2009, request for interim payment 62 , and shall include a detailed analysis of the charges, including pinpoint citations to supporting authorities and any supporting documents filed with an index of evidence. Any request for hearing should be stated in the brief. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ)
|
|
Filing
70
ORDER - The plaintiffs' Objection to the interim payment 51 shall be resolved pursuant to the following briefing schedule: The plaintiffs shall file a brief by April 24, 2009. The defendant shall file a response brief by May 11, 2009. The pl aintiffs may file a reply brief by May 19, 2009. Briefs shall set forth the basis for the reasonableness of the charges contained in the February 10, 2009, request for interim payment 41 , and shall include a detailed analysis of the charges, including pinpoint citations to supporting authorities and any supporting documents filed with an index of evidence. Any request for hearing should be stated in the brief. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ)
|
|
Filing
59
ORDER on the Court's on motion that Paragraph 11 of the Court's Order of January 12, 2009 31 , is modified and Judge Thalken is authorized to receive evidence, hear argument, and issue Orders determining the reasonableness of ATSER's interim payment requests for the transfer of the Licensed Software and historical data to Kiewit's server, as well as the merits of Kiewit's objections filed in response to those payment requests. Ordered by Judge Laurie Smith Camp. (JB)
|
|
Filing
55
PROTECTIVE ORDER - The Joint Motion for Protective Order 53 is granted. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ)
|
|
Filing
31
ORDER granting in part and denying in part 3 Motion for Preliminary Injunction. ATSER is restrained from disrupting or terminating Kiewits access to the Licensed Software; ATSER will facilitate the transfer of the Licensed Software and the accumu lated historical data belonging to Kiewit to a server identified by Kiewit, so that it will become a self-hosted program; ATSER will not, as a part of this Preliminary Injunction, be required to transfer to Kiewit or its agents any service codes for which ATSER holds copyright or to which ATSER otherwise claims exclusive ownership; ATSER will continue to provide maintenance and help desk services to Kiewit as provided in the initial contract and service agreement such that the system is servic eable to Kiewit; Kiewit immediately will remit $6,000.00 to ATSER for maintenance and help desk services in accordance with the terms of the Software License Agreement and incorporated Proposal; ATSER may file, no more frequently than once eac h calendar month, requests for interim payments reflecting the reasonable costs it incurs in the transfer of the Licensed Software and historical data to Kiewits server, and shall include a certificate of service demonstrating service of the request on Kiewits counsel; Within ten business days after Kiewits counsel receives a request from ATSER for interim payment, Kiewit will (a) make payment of the requested sum to ATSER, which payment will not be deemed an admission of the reasonableness of the billing; or (b) file a request for hearing before this Court on the question of the reasonableness of the billing; The terms of this Preliminary Injunction will remain in effect until July 9, 2009; or until further order of this court; Further h earing on the Preliminary Injunction is scheduled for July 6, 2009,at 1:00 p.m.; At the time of the July 6 hearing, this Court will receive evidence and hear argument concerning the reasonableness of the $6,000 sum ordered to be paid by Kiewit to ATSER for maintenance and help desk services in 2009, the reasonableness of payments requested and/or made for the transfer of the Licensed Software to Kiewits server, and further preliminary relief requested by the parties; Pursuant to Rule 65(c ) and the previous provisions of this Order, the Court in its discretion will not require Kiewit to post a bond with the Clerk of Court of the United States District Court for the District of Nebraska; and Plaintiffs Motion for an Order to Show Cause 14 requesting that the Court find ATSER in contempt of the Temporary Restraining Order and impose sanctions is denied. Ordered by Judge Laurie Smith Camp. (PCV, )
|
|
Filing
9
ORDER granting 3 Motion for TRO; regarding 3 Motion for Preliminary Injunction; IT IS HEREBY ORDERED: 2. Defendant ATSER, LP, is temporarily restrained from disrupting orterminating the Plaintiffs access to that certain web technology and softwar ewhich allows the Plaintiffs to access and manage data relating to itsengineering and construction projects, which technology and software is thesubject of the Software License Agreement entered into on August 20,2005, between the parties;3. This Tem porary Restraining Order will expire at 11:59 p.m. on January 10,2009, unless otherwise extended or vacated. The parties should note that,once granted, a temporary restraining order can be extended beyond itsinitial duration for good cause or by the consent of the adverse party. Fed.R. Civ. P. 65(b). The rule requires that [the reasons for an extension... beentered in the record. Fed. R. Civ. P. 65(b);4. A hearing on the Plaintiffs Motion for Preliminary Injunction (Filing No. 3)against the Defe ndant, pursuant to Rule 65 of the Federal Rules of CivilProcedure, for the purpose of extending the temporary relief granted in thisOrder as well as additional relief requested, will be set within seven to tendays of the date of this Order, following consultation with counsel for theparties, or the parties themselves, if not represented by counsel, regardingtheir availability; 5. Plaintiffs will not be required to post a bond with the Clerk of Court at thistime. The Court will address the issue of a security bond during the hearingon the Plaintiffs Motion for Preliminary Injunction;6. Service of this Order shall be made via CM/ECF on all parties, and mayadditionally be made by email, facsimile, mail, overnight delivery to thebusiness addres s of any defendant, or special process server, or any otherperson, or in any other manner authorized by Rule 5 of the Federal Rules ofCivil Procedure and may be made on any registered agent, officer, or directorof defendants, or by publication; and7. Plaintiffs counsel is directed to serve a copy of this order upon the Defendantby United States mail and by any other means practicable to effect actualnotice on the Defendant of the hearing to be scheduled in this matter. Ordered by Judge Laurie Smith Camp. (PCV, )
|
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the Nebraska District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
