Citations
- 303 F. Supp. 3d 791
Full opinion text
Larry J. McKinney, District Judge.
This Order addresses all pending motions for summary judgment filed by the original parties in this cause because the briefing incorporates by reference either facts or arguments made in other pleadings and the issues are interrelated, particularly with respect to the proper construction of claim terms. More specifically, patent holder GS CleanTech Corporation ("CleanTech") has moved for summary judgment of infringement of what has been termed the " '858 patent family:" U.S. Patent Nos. 7,601,858 (the " '858 patent") ; 8,008,516 (the " '516 patent"), 8,008,517 (the " '516 patent") ; and 8,283,484 (the " '484 patent"), collectively; against the Plant Defendants in this Multi-District Litigation ("MDL"). Specifically, CleanTech contends that no genuine issue of material fact exists with respect to infringement of the following claims of each patent in the '858 patent family as to each of these Defendants:
Defendant `858 Patent `516 Patent `517 Patent `484 Patent Claims Claims Claims Claims Cardinal Ethanol, 1, 3, 5-8, 10-16 1-6 1 1, 3, 5, 6, 16, 19, LLC ("Cardinal") 21, 23, 24, 26, 28-30 Lincolnway 8, 9 1-4, 7-11 1, 2 1-3, 5, 6, 8, 10, 12-14, Energy, LLC 16, 17, 27, 28, ("Lincolnway) 30 Blue Flint Ethanol, 1-3, 5-16 1-11 1, 2 1, 3, 5, 6, 8, 10, LLC ("Blue Flint") 12-14, 16, 17, 19-21, 23, 24, 26-30 United Wisconsin 1-3, 5, 7-16 1-3, 5-11 1, 2 1-3, 5, 8, 10, 12, Grain Producers 14, 16, 17, 19-23, ("UWGP") 26-30 Bushmills Ethanol, 8, 9 1-4, 7-11 1, 2 1, 2, 5, 6, 8, 12-14, Inc. ("Bushmills") 16, 17, 27, 28, 30 Al-Corn Clean 8, 9 1-3, 7-111 1, 2 1-3, 5, 8, 10, 12, Fuel ("Al-Corn") 14, 16, 17, 27, 28, 302 Chippewa Valley 1-3, 5-16 1-11 1, 2 1, 3, 5, 6, 8, 10, Ethanol Co. 12-14, 16, 17, 19-21, ("CVEC") 23, 24, 26-30 Heartland Corn 8, 9 1-4, 7-11 1, 2 1, 2, 5, 6, 8, 12-14, Products 16, 17, 27, 28, 30 ("Heartland") Iroquois Bio-Energy 8, 9 1-4, 7-11 1, 2 1, 2, 5, 6, 8, 12-14, Co. 16, 17, 27, 28, 30 ("Iroquois") Ace Ethanol LLC 1-3, 5-16 1-11 1, 2 1, 3, 5, 6, 8, 10, ("Ace") 12-14, 16, 17, 19-21, 23, 24, 26-30 Lincolnland Agri-Energy, 1, 3, 5-8, 10-16 1-6 1 1, 3, 5, 6, 16, 19, LLC 21, 23, 24, 26, 28-30 ("Lincolnland") Big River 8 1-4 1 1, 5, 16, 26, 28, 30 Resources Galva LLC ("BR-Galva") Big River 8 1-4 1 1, 5, 16, 26, 28, 30 Resources West Burlington, LLC ("BRWB") Adkins Energy, 8, 9 1-4, 7-11 1, 2 1, 2, 5, 6, 8, 12-14, LLC ("Adkins") 16, 17, 27, 28, 30
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The Court will refer to these Defendants, collectively, as the "Plant Defendants" throughout this Order. The Plant Defendants have moved for summary judgment of non-infringement as to the '858 patent family. MDN 932. As an alternative defense, the Plant Defendants assert that CleanTech lacks standing to bring any claims with respect to the patents-in-suit because it failed to establish title to them in its opening brief. MDN 932, at 49; MDN 1096, at 29-32.
With respect to non-infringement specifically, Defendants Ace, Adkins, Al-Corn, Blue Flint, Bushmills, Cardinal, CVEC, Heartland, Iroquois, Lincolnland, Lincolnway and UWGP claim they are entitled to summary judgment on all of CleanTech's claims of infringement as to the '858 patent family either for the entire relevant period or for some relevant period because they add chemicals as an intervening, non-disclosed and disavowed step in their oil recovery processes. Independently, all the Plant Defendants claim they are entitled to summary judgment of non-infringement as to Claim 15 of the '858 patent ; Claim 10 of the '516 patent ; and Claims 1-3, 5, 6, 8, 10, 12-14, 16, 17, 19-24 and 26-29 of the '484 patent ; because none of them dries thin stillage concentrate or concentrated byproduct as required by those claims. Defendants Ace, Adkins, Al-Corn, Blue Flint, Bushmills, CVEC, Heartland, Iroquois, Lincolnway, and UWGP assert that they are entitled to summary judgment of non-infringement as to Claims 7-10 of the '516 patent and Claims 8, 10, 12-14, and 27 of the '484 patent.
Further, Iroquois argues that it is entitled to summary judgment of noninfringement as to Claims 2 and 9 of the '516 patent, and Claim 14 of the '484 patent for independent reasons. MDN 923. Lincolnway joins Iroquois' argument with respect to Claim 9 of the '516 patent. MDN 930.
In addition, Cardinal asserts that it is entitled to summary judgment on all of CleanTech's infringement claims against it because CleanTech and the Court have impermissibly broadened the scope of the term "oil" during claim construction and urges the Court to clarify the scope of that term. MDN 924. If the Court does so as Cardinal urges, Cardinal argues that its process cannot infringe the claims of the '858 patent family. Id.
Ace and GEA Mechanical Equipment US, Inc. ("GEA"), have moved for summary judgment on the issue of liability for inducing or contributing to infringement of the '858 patent family. MDN 934.
Adkins has also moved for summary judgment on its affirmative defense of unclean hands in which it incorporates by reference its Motion for Sanctions. MDN 809 & 925.
In a separate, but integrated brief, the Plant Defendants, along with the remaining original defendants, Flottweg Separation Technologies, Inc., Flottweg AG (collectively, "Flottweg"), GEA, ICM, Inc., and David J. Vander Griend (all original defendants, collectively, "Defendants"); have moved for summary judgment as to their affirmative defense and/or counterclaim of invalidity of the '858 patent family, as to CleanTech's request for provisional remedies and as to CleanTech's request for enhanced damages for willful infringement of the '858 patent family. MDN 940. CleanTech has cross-moved for summary judgment of no invalidity under 35 U.S.C. § 112 against these Defendants. MDN 1005, 1008-1024.
Furthermore, CleanTech has asserted that a sub-set of the Original Defendants infringe a companion patent, U.S. Patent No. 8,168,037 (the " '037 patent"). Specifically, CleanTech alleges that each of the following Defendants infringes the listed claims of the '037 patent :
Defendant '037 Patent Claims Cardinal 1, 6, 8, 9, 13, 15 Lincolnway 1, 2, 6-11, 13, 15 Blue Flint 1, 2, 6-11, 13, 15 Lincolnland 1, 6, 8, 9, 13, 15 BR-G 1, 6, 8, 9, 13, 15 BRWB 1, 6, 8, 9, 13, 15
MDN 986 at 6. CleanTech has moved for summary judgment as to all of these asserted claims of the '037 patent against each of these Defendants, which the Court shall refer to, collectively, as the " '037 Plant Defendants." MDN 980-85. The '037 Plant Defendants and an additional subset of the Original Defendants, ICM, Vander Griend and Flottweg (all of these Defendants, collectively, the " '037 Defendants"), have moved for summary judgment of invalidity and noninfringement of the '037 patent. MDN 1071. CleanTech has cross-moved for summary judgment of no invalidity under 35 U.S.C. § 102(e). MDN 1142-1159.
I. SUMMARY JUDGMENT STANDARD
On cross-motions for summary judgment, the Court must apply the ordinary standards pursuant to Rule 56 of the Federal Rules of Civil Procedure (" Rule 56") as to each individual motion. See McKinney v. Cadleway Props., Inc. , 548 F.3d 496, 504 n.4 (7th Cir. 2008) ; Chevron U.S.A. v. Mobil Prod. Tx. & N.M. , 281 F.3d 1249, 1252-53 (Fed. Cir. 2002). In other words, each motion must be considered separately and the non-moving party given the benefit of favorable inferences. Chevron , 281 F.3d at 1253.
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also United Ass'n of Black Landscapers v. City of Milwaukee , 916 F.2d 1261, 1267-68 (7th Cir. 1990). Rule 56(a) provides in relevant part: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials showing that a fact either is or cannot be genuinely disputed. Fed. R. Civ. P. 56(c)(1). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Goodman v. Nat'l Sec. Agency, Inc. , 621 F.3d 651, 654 (7th Cir. 2010). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying applicable evidence. See Goodman , 621 F.3d at 654 ; Bombard v. Fort Wayne Newspapers, Inc. , 92 F.3d 560, 562 (7th Cir. 1996).
In evaluating a motion for summary judgment, the Court draws all reasonable inferences from undisputed facts in favor of the nonmoving party and views the disputed evidence in the light most favorable to the nonmoving party. See Berry v. Peterman , 604 F.3d 435, 438 (7th Cir. 2010) ; Estate of Cole v. Fromm , 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; JPM Inc. v. John Deere Indus. Equip. Co. , 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer , 969 F.2d 278, 281 (7th Cir. 1992). If the moving party does not have the ultimate burden of proof on a claim, it is sufficient for the moving party to direct the Court to the lack of evidence as to an element of that claim. See Green v. Whiteco Indus., Inc. , 17 F.3d 199, 201 & n.3 (7th Cir. 1994). "If the nonmoving party fails to establish the existence of an element essential to [its] case, one on which [it] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co. , 94 F.3d 1121, 1124 (7th Cir. 1996).
II. STANDING
Although the Plant Defendants claim that their lack of title defense is one in the alternative, standing is a subject matter issue; therefore, it must be addressed first. See Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011) (stating that "federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction"). The Plant Defendants claim that CleanTech has not established title to the patents-in-suit, which is an element of an infringement claim, and, having failed to set forth the required facts in its brief, the issue is waived and the Court must deny CleanTech summary judgment of infringement. MDN 932 at 49 (citing Narducci v. Moore , 572 F.3d 313, 324 (7th Cir. 2009) ; Mars Inc. v. Kabushiki-Kaisha Nippon Conlux , 24 F.3d 1368, 1372 (Fed. Cir. 1994) ; FilmTec Corp. v. Allied-Signal, Inc. , 939 F.2d 1568, 1571 (Fed. Cir. 1991) ). But, because it is a subject matter jurisdiction requirement, standing may not be waived; therefore the Court will address the argument on its merits. See Rodas v. Seidlin , 656 F.3d 610, 622 (7th Cir. 2011) (citing Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, Cent.Region , 558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009) ).
With respect to the merits, the Plant Defendants argue that CleanTech's citation to the U.S. Patent and Trademark Office's ("PTO's") assignment records is insufficient because of several gaps in the chain of title. MDN 1096 at 29-30. The Plant Defendants list the following as the chain of title set forth in those records:
On June 1, 2005, [David] Winsness and [David] Cantrell assigned [their] rights "in and to any and all patents ... issued for [the alleged] inventions" described in the provisional application to which the patents-in-suit claim priority to Ethanol Oil Recovery Systems LLC ("EORS"). On January 25, 2007, EORS assigned those rights to Cantrell Winsness Techs., LLC, which had previously changed its name to Mean Green Biofuels of Georgia, LLC ("Mean Green") on December 21, 2006, and its successors. On April 4, 207, Mean Green then assigned the rights to GS Ethanol Techs., Inc. ("GSET"). On January 11, 2008, GSET and 16 other entities collectively executed a Security Agreement, conditionally assigning their individual property to YA Global Investments, L.P. ("YA Global"). On May 15, 2009, GSET purported to assign the patent application that led to the '858 [p]atent, and "any and all Patents that may be issued therefrom ...., including all revivals, refilings, continuations, continuations-in-part, divisions and reissues thereof" to GS CleanTech Corp. Finally, on June 30, 2009, GreenShift Corp. (f/k/a GS CleanTech Corp.), GS CleanTech Corp. (f/k/a GSET), and 16 other entities executed an amendment to the January 11, 2008 Security Agreement, ratifying, confirming, and reaffirming the terms therein.
MDN 1096 at 30 (citing MDN 1036-1 at 6-8, 10-14, 16-17, 19-20, 25-43, 45-46, 52-61 (internal citations omitted) ). According to the Plant Defendants, the first of the two holes in the chain of title occurred when GSET made the conditional assignment to YA Global and transferred "continuing interest" and the "power of sale" to YA Global, which the Plant Defendant claim vested title to the patents-in-suit with YA Global upon recording of the Security Agreement with the PTO. Id. at 30-31 (citing, inter alia , MDN 1036-1 at 27, 30; Waterman v. Mackenzie , 138 U.S. 252, 256, 11 S.Ct. 334, 34 L.Ed. 923 (1891) ; In re Cybernetic Servs. , 252 F.3d 1039, 1052 (9th Cir. 2001) ). Therefore, the Plant Defendants claim that GSET's subsequent assignment to CleanTech is void. Id. at 32.
The second hole in the chain of title the Plant Defendants assert is that when CleanTech and its parent, GreenShift, failed to file Delaware state taxes by March 1, 2012, CleanTech's right to maintain a legal action became inoperative unless cured. Id. (citing MDN 1097-1 & 1097-2); 8 Del. Code §§ 312 & 510. CleanTech asserts that the agreement between GSET and YA Global merely granted YA Global a security interest in the patents. MDN 1137, at 10-13. As such, like all security interests under Article 9 of the Uniform Commercial Code ("UCC"), the Security Agreement did not convey title to YA Global. Id. at 11. In addition, CleanTech argues that the Plant Defendants misstate the language of the Security Agreement: where they say that the document conveyed "a continuing interest in the patents," id. (citing MDN 1096 at 30-31), the agreement actually grants YA Global "a continuing security interest" in the patents. Id. (quoting MDN 1036-1 at 27, Section 2, adding emphasis). Therefore, recording the Security Agreement did not transfer title; it only perfected YA Global's security interest in the patents. Id. at 11-12. In addition, CleanTech contends that it has paid its taxes and is in good standing; but even if it was not, the inadvertent failure to pay franchise taxes under Delaware law would not divest CleanTech of standing since it would "always continue[ ] as a 'body corporate' for purposes of this litigation." Id. at 9-10 & n.9 (citing 8 Del. C. § 278; Krapf & Son, Inc. v. Gorson , 243 A.2d 713 (Del. 1968) ).
The Court concludes that there were no breaks in the chain of custody and CleanTech holds title to the patents-in-suit. As CleanTech suggests, the Plant Defendants rely upon incomplete language from the Security Agreement. By its terms, the grantors were not conveying title to the intellectual property; they were conveying a security interest in it. MDN 1036-1 at 27. Moreover, the Plant Defendants point to nothing in the language of the Security Agreement that evidences any intent for the title of the patents to pass to the Secured Party when the security interest was recorded. Absent such language of intent, there was no transfer of title. Further, CleanTech has paid its taxes and is in good standing as of January 30, 2014. MDN 1137-1 & 1137-2. In addition, CleanTech has evidenced that under Delaware law, even if the company had been dissolved for not paying its taxes, it would still operate with respect to any litigation for at least three years. 8 Del. C. § 278. For these reasons, the Plant Defendants' Motion for Summary Judgment as to the issue of standing is DENIED .
III. BACKGROUND FACTS
A. THE PROCESSES IN GENERAL
Each of the Plant Defendants processes corn to produce ethanol and employs a corn oil extraction system to separate corn oil from evaporated thin stillage. MDN 878 at 7-9; MDN 986 at 6-7. Ace, Adkins, Al-Corn, BRWB, Cardinal, CVEC, Lincolnland and Lincolnway first began to extract corn oil from syrup or thin stillage in or around 2008; Heartland started to use its own corn oil extraction system in one plant in 2007, and in both by 2008; Blue Flint, Bushmills, BR-G, Iroquois and UWGP began to extract corn oil from syrup or thin stillage in or around 2009. MDN 878 at 9; MDN 986 at 7.
Although there are some differences in individual processes that the Court will outline as necessary, at each of the Plant Defendants' facilities, whole stillage, a byproduct of the corn to ethanol production process, is separated into a substance that is essentially solids and is known in the industry as wet distillers grains or wet cake; and a substance that is primarily fluid and is known in the industry as thin stillage, which includes water, oil and solids. MDN 878 at 10; MDN 986 at 8. At the Ace, Blue Flint, Bushmills, CVEC, Lincolnland and UWGP facilities, that separation is facilitated by the use of a decanter centrifuge. MDN 878 at 10; MDN 1037-2 (Bushmills). Bushmills and Heartland add a chemical to the portion known as thin stillage before anything else is done with the material. MDN 932 at 15 (Bushmills) & 16-17 (Heartland). Then, as to all Defendants, the portion known as thin stillage (or thin stillage plus chemical) is pumped through an evaporation system (a system that varies by Defendant), which produces a material known in the industry as syrup, which again contains water, oil and solids. MDN 878 at 11; MDN 986 at 8. Ace introduces a chemical to the syrup before it is pumped to a holding tank. MDN 932 at 6-7. Several other Plant Defendants including Adkins, Al-Corn, Blue Flint, Bushmills, Cardinal, CVEC, Iroquois, Lincolnland, Lincolnway, and UWGP, mix in a chemical with the syrup after the evaporation step. MDN 932 at 15, 37-38; MDN 949-39 (Iroquois). The Plant Defendants that use a chemical additive at some point before the pre-centrifugation (or pre-mechanical) processing step started using chemicals at different points in time to improve their oil recovery. MDN 932 at 37-38.
Next, the syrup is passed through one or more centrifuges to separate the syrup into two output streams: one is a light phase consisting of oil, water and solids, which the Court and the parties will sometimes refer to as the "oil stream"; the other one is reduced oil syrup. MDN 878 at 11-12; MDN 932 at 5; MDN 986 at 8-9; MDN 1179 at 15. The light phase stream is put into tanks where, for nearly all of the Plant Defendants, the solids and water are allowed to settle or are otherwise further separated. MDN 878 at 12-13; MDN 932 at 5, 18, 21, 23-24; MDN 881-22 (Heartland); MDN 1037-3 (UWGP); MDN 986 at 9: MDN 1179 at 15.
The parties dispute whether the evidence supports CleanTech's assertion that the Plant Defendants' processes run in a "continuous fashion" as required by some of the asserted claims of the '858 patent family. MDN 878 at 13; MDN 932 at 8, 16, 18, 20, 22, 23-24, 31; MDN 923; MDN 930. Iroquois and Lincolnway specifically argue that their systems are not continuous. MDN 932 at 22 (stating that Iroquois' process processes a single batch of syrup at a time); id. at 23-24 (stating that Lincolnway's centrifuges are not processing syrup continuously during times that solids ejections and cleanings-in-place ("CIP") are occurring).See also MDN 923 (Iroquois' Cross-Motion for Summary Judgment of Non-Infringement as to Certain Patent Claims); 930 (Lincolnway's Joinder in Iroquois' Motion for Summary Judgment of Non-Infringement as to Claim 9 of the '516 Patent ).
CleanTech's expert, John McKenna ("McKenna"), testified that he would not consider a mixture of thin stillage concentrate, wet distillers grains and previously dried DDGS, to be "thin stillage concentrate." MDN 1096 at 17-21. And, McKenna testified that he had not seen any of the Plant Defendants dry the concentrated thin stillage leaving a centrifuge in a dryer. Id. at 19.
B. PLANT SPECIFIC EVIDENCE
1. Ace
Ace installed its corn oil extraction system in 2008. MDN 878 at 33. At Ace's facility, syrup exits the evaporation stage and is pumped to a syrup balance tank; the syrup is then pumped into a heat exchanger and heated to approximately [redacted] °F. Id. at 13. The temperature of the syrup as it exits the balance tank and enters the heat exchanger is approximately [redacted] °F. Id. After the syrup exits the heat exchanger, since January 2012, Ace introduces a chemical into the syrup to increase the oil recovery from the syrup; from August 2008 through January 2012, no chemical was added on a regular basis. MDN 932 at 6-7. From there, the syrup is pumped to a raw syrup tank and then it is pumped into a heated syrup tank. MDN 878 at 13. From the heated syrup tank, the syrup is pumped to a disk-stack centrifuge for oil removal. Id. at 13-14. The temperature of the syrup is maintained at approximately [redacted] °F in both the raw and the heated syrup tanks and enters the centrifuge at a temperature approximately between [redacted] °F and [redacted] °F. Id. at 14. The moisture content of the syrup fed into the centrifuge is approximately [redacted]% to [redacted]% and the pH of the syrup is approximately 3.6. MDN 878 at 14.
The reduced oil syrup leaving the centrifuge is discharged into a dryer feed tank. From the dryer feed tank, the reduced oil syrup is mixed with distillers wet grains and then dried in a dryer to make dried distillers wet grains with solubles ("DDGS"). Id. The reduced oil syrup contains between [redacted]% and [redacted]% of the oil originally present in the input syrup. MDN 932 at 7.
On December 13, 2011, CleanTech performed a Rule 34 inspection of Ace's corn oil extraction process. MDN 878 at 29. During the inspection, samples were taken at fourteen locations (1-14). At each location, four individual samples were taken (A-D) with CleanTech retaining two of the samples (A-B) and Ace retaining the remaining two samples (C-D). Id. CleanTech submitted one of each of its samples (AE-1A through AE-14A) and Ace submitted one of each of its samples (AE-1C through AE-14C) for analysis to MidWest Laboratories, Inc. ("MidWest"), where each sample was tested and separate test data sheets were generated that provided the test data for each sample. Id. at 29-30.
Samples AE-11A and AE-11C were from the syrup stream before it enters the disk-stack centrifuge. Id. at 30. Samples AE-12A and AE-12C were from the reduced oil syrup stream leaving the disk-stacked centrifuge. Id. Samples AE-13A and AE-13C were taken from the light phase stream exiting the disk-stacked centrifuge. Id. ; MDN 932 at 7.
The results of the MidWest tests on samples AE-11A and AE-11C of the syrup entering the centrifuge show oil concentrations of [redacted]% and [redacted]%, respectively. MDN 878 at 30. The results of the MidWest tests on samples AE-12A and AE-12C of the reduced oil syrup stream leaving the centrifuge show oil concentrations of [redacted]% and [redacted]%, respectively. Id. at 30-31. The sample results show an oil recovery range between [redacted]% and [redacted]% of the oil removed through centrifugation. Id. at 30; MDN 932 at 7.
The results of the MidWest tests on samples AE-13A and AE-13C of the light phase exiting the centrifuge show an oil concentration of [redacted]% and [redacted]%, respectively. MDN 878 at 31.
The results of the MidWest tests are reflective of Ace's process, which, at the time, included the addition of a chemical. Id. ; MDN 932 at 7.
During its inspection at the Ace facility, CleanTech took photographs of its samples of the syrup fed into the centrifuge; and of its samples of the reduced oil syrup and the light phase leaving the centrifuge. MDN 878 at 31. Although the concentration of the sample does not change, settling will occur in the samples, which allows oil to be more observable. MDN 932 at 7; MDN 1025 at 11.
2. Adkins
At the Adkins facility, the syrup is pumped to a strainer after it exits the final stage of the evaporation system. MDN 878 at 14-15. Chemicals are added to the syrup as it leaves the evaporator. MDN 932 at 12. From there it goes through a strainer that removes coarse solids from the syrup; and then the syrup is pumped to a disk-stack centrifuge. Id. ; MDN 878 at 14-15. The moisture content of the syrup fed into the centrifuge is approximately 67% by weight. MDN 878 at 15. The pH concentration of the syrup fed into the centrifuge was measured on October 6, 2011, to be approximately 3.67. Id. ; MDN 932 at 8-9. The reduced oil syrup that comes out of the centrifuge is discharged into a tank; from there it is sent to a syrup tank and then it is mixed with wet cake. MDN 878 at 15. A portion of this mixture is sent to a dryer. Id.
On October 11, 2011, CleanTech performed a Rule 34 inspection at the Adkins facility and took samples at various parts of Adkins' process; Adkins did not take any samples. Id. at 33. Adkins objected to CleanTech's Statement of Material Facts Not in Dispute ("CleanTech SOMF") numbered 123 through 130, 132 through 135, and 137 on the basis that the cited evidence did not support the statement. MDN 932 at 9-10. The Court agrees that the cited evidence does not support the statements because the Rule 30(b)(6) witness did not testify as to where any sample was taken from. MDN 882-38 & 882-39. Similarly, the MidWest results do not indicate where any sample was taken from; they just reference the sample number and the results. In response to Adkins' objection, CleanTech merely states that the MidWest results speak for themselves and that the Rule 30(b)(6) testimony establishes that the results are largely consistent with typical results Adkins observes at other times. MDN 1025 at 12, 68-69. At no point does CleanTech address Adkins' objection that there is no foundation for a conclusion that the cited samples came from various parts of Adkins' process. For these reasons, the Court SUSTAINS Adkins' objections to the MidWest data as against it; the data will not be considered.
Adkins also objected to CleanTech SOMF 131 and 135 on the basis that the evidence cited, the Expert Report of John V. McKenna Re: Infringement by Adkins Energy, LLC, is unsworn and inadmissible. MDN 932 at 10-11; MDN 882-39. CleanTech wholly fails to address this objection. MDN 1025 at 12, 69. Expert reports are merely discovery materials, see Blue Cross & Blue Shield United of Wis. v. Marshfield , 152 F.3d 588, 595 (7th Cir. 1998) ; therefore, unless the expert authenticates the report, it is inadmissible. See Wittmer v. Peters , 87 F.3d 916, 917 (7th Cir. 1996) (citing Fed. R. Civ. P. 56(e) ; Fowle v. C & C Cola , 868 F.2d 59, 67 (3d Cir. 1989) ); Howmedica Osteonics Corp. v. Tranquil Prospects, Ltd. , 482 F.Supp.2d 1045, 1057 (N.D. Ind. 2007) (citing Adickes v. S.H. Kress & Co. , 398 U.S. 144, 158 n.17, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Provident Life & Acc. Ins. Co. v. Goel , 274 F.3d 984, 1000 (5th Cir. 2001) ; Fowle , 868 F.2d at 67 ). The Fowle court suggested that some courts believe such a conclusion is hypercritical, 868 F.2d at 67 (see also Howmedica , 482 F.Supp.2d at 1057 (stating that it would decide the issue on the merits rather than on a hypercritical application of the rules) ); but, here, despite having the opportunity to do so, CleanTech did nothing to address Adkins' objection once it was raised and had opportunity to do so; therefore, Adkins' objection to CleanTech SOMF 131 is SUSTAINED and John McKenna's opinions as to Adkins are inadmissible.
For these reasons, CleanTech presented no admissible evidence on the content of the various samples or any test results for the Adkins inspection.
3. Al-Corn
At the Al-Corn facility, syrup is transferred from the seventh evaporator to a syrup buffer tank. MDN 878 at 15. The temperature of the syrup as it exits the evaporator system is approximately [redacted] °F, its moisture content is approximately [redacted]% by weight, and its pH is between approximately 4.7 and 5.0. Id. ; MDN 932, at 12-13. The syrup that exits the evaporation system is comprised of water, corn oil and solids. MDN 878 at 38. The syrup passes through a filter screen and then is sent to a primary high speed separator ("PCOSS") disk-stack centrifuge. Id. at 15. The Al-Corn centrifuge separates a portion of the oil in the syrup, along with portions of water and unsaponifiable matter into one stream (the "light stream") and the remaining reduced oil syrup into another stream. Id. The reduced oil syrup that exits the centrifuge contains between [redacted]% and [redacted]% of the oil originally present in the syrup. MDN 932 at 12. The reduced oil syrup is transferred to a syrup return tank, then to a syrup storage tank. MDN 878 at 16. Ultimately, the reduced oil syrup is mixed with wet cake and sent to dryers. Id.
Although Al-Corn initially transferred the light stream from the centrifuge to a temporary storage tank and through a secondary corn oil separator, it has not done so since March 2009. Id. The light stream is discharged into a corn oil settling tank, which overflows by gravity into another settling tank and then to a bulk storage tank. Id.
On November 30, 2011, CleanTech performed a Rule 34 inspection of Al-Corn's facility. Id. at 36. During the plant inspection, four samples (A-D) were taken at thirteen sample locations (1-13). Id. The four samples at each location were identified AL-1A through D, through AL-13A through D. Id. CleanTech submitted samples AL-1A through AL-13A and Al-Corn submitted samples AL-9C, AL-10C, AL-11C and AL-13C to MidWest for analysis, where each sample was tested and separate test data sheets were generated providing the test data for each sample. Id. at 37.
MidWest's test results on samples AL-11A and C, which were taken from the oil stream leaving the centrifuge, were produced by Al-Corn bearing Bates No. AL-CORN001558 and by CleanTech bearing Bates No. GCS(AlCorn) 0000011. Id. MidWest's test results on samples AL-10A and C, which were taken from the reduced oil syrup leaving the centrifuge, were produced by Al-Corn bearing Bates No. AL-CORN001557 and by CleanTech bearing Bates No. GCS(AlCorn) 000010. Id. at 37-38. MidWest's test results on samples AL-9A and C, which were taken at the feed stream to the centrifuge after Evaporator 7, were produced by Al-Corn bearing Bates No. AL-CORN001556 and by CleanTech bearing Bates No. GCS(AlCorn) 000009. Id. at 38.
The MidWest test data produced by Al-Corn for samples of the syrup entering the centrifuge show an oil concentration of about [redacted]%; MidWest's data produced by CleanTech for samples of the same stream show an oil concentration of about [redacted]%. Id. The MidWest test data produced by Al-Corn for samples of the reduced oil syrup coming out of the centrifuge show an oil concentration of about [redacted]%; MidWest's data produced by CleanTech for samples of the same stream show an oil concentration of about [redacted]%. Id. at 38-39. This means there is approximately between [redacted]% and [redacted]% of the oil left in the reduced oil syrup. MDN 932 at 12. Or, approximately [redacted]% to [redacted]% of the oil in the syrup entering the centrifuge is removed during that part of the process. MDN 878 at 39.
The MidWest data produced by Al-Corn for the samples of the light stream leaving the centrifuge show an oil concentration of about 96.5%; MidWest's data produced by CleanTech for the same samples show an oil concentration of approximately [redacted]%. Id.
CleanTech took a photograph of AL-9A (of the syrup after the evaporator and before the centrifuge), AL-10A (of the reduced oil syrup leaving the centrifuge), AL-11A (of the light stream leaving the centrifuge), AL-12A (oil in the settling tank) and AL-13A (oil in the bulk storage tank), during the November 30, 2011, inspection of Al-Corn's facility. Id. at 40. Although the material has settled, the compositions have not changed, but it has made the oil more observable. Id. at 40; MDN 932 at 5-6; MDN 1025 at 11.
4. Blue Flint
In the Blue Flint system, prior to November 26, 2011, the syrup was steam blasted before it entered the centrifuge, which heated the syrup to 180°F to 190°F. MDN 932 at 14. Further, after June 14, 2011, Blue Flint began injecting a chemical additive to the syrup just prior to the stream entering the centrifuge. Id. In Blue Flint's system, syrup, which is a mixture of water, oil and solids, is transferred from the seventh evaporator of an eight-evaporator system to a Westfalia disk-stack centrifuge where it is separated into a light stream comprised of free oil and an oil/water/solids emulsion and a heavy, reduced oil solids stream consisting of solids, moisture and a small amount of oil. MDN 878 at 16-17, 43; MDN 986 at 9. Prior to November 24, 2011, the temperature of this syrup was approximately between 200°F and 205°F, MDN 878 at 17; MDN 986 at 9; after that date, the temperature was and is between approximately 180°F and 190°F, MDN 932 at 14; MDN 1179 at 15. The moisture content of the syrup is approximately 70% by weight; and its pH level is between 3 and 6 as well as between 3.5 and 4.5. MDN 878 at 17; MDN 986 at 9. The reduced oil syrup stream that leaves the centrifuges at Blue Flint is fed back into another evaporator, then it is transferred to syrup transfer and holding tanks; then it is pumped onto wet cake or distillers grains and dried. MDN 878 at 17; MDN 986 at 10.
On October 25, 2011, CleanTech performed a Rule 34 inspection of Blue Flint's facility. MDN 878 at 41; MDN 986 at 14. During the inspection, four samples were taken (A-D) at each of fifteen sample locations (1-15) and were labelled accordingly. Id. CleanTech submitted samples BF-1A through BF-15A and Blue Flint submitted samples BF-1C through BF-15C for analysis to MidWest, where each sample was tested and separate test data sheets were generated providing test data for each sample. MDN 878 at 42; MDN 986 at 14-16. On January 27, 2012, Blue Flint conducted additional sampling at Evaporator 7, which is right before the syrup goes into the centrifuge; and also at the "stillage return," which is where the reduced oil syrup stream exits the centrifuge. MDN 878 at 42; MDN 986 at 15-16. These samples, duly marked, were also sent to MidWest for testing. MDN 878 at 42-43; MDN 986 at 15-16.
The MidWest test data on Blue Flint's samples for the syrup stream entering the centrifuge with and without chemical additive show an oil concentration of approximately 5.32%-5.35%; the MidWest data for CleanTech's samples of the same stream show an oil concentration of approximately 5.45%. MDN 878 at 42-44. The MidWest test data for Blue Flint's samples for the reduced oil syrup stream leaving the centrifuge, with and without chemical additive, show an oil concentration of approximately 1.76%-2.67%; the MidWest data for CleanTech's samples of the same stream show an oil concentration of approximately 2.22%. Id. at 44. Based on these results, approximately 45.5%-56.5% of the corn oil is recovered. MDN 932 at 14.
The MidWest test data on Blue Flint's samples for the light stream coming out of the centrifuge show an oil concentration of approximately 97.04%; the MidWest data for CleanTech's samples of the same stream show an oil concentration of approximately 96.8%. MDN 878 at 45; MDN 986 at 16-17.
During the October 25, 2011, inspection of the Blue Flint facility, CleanTech took a photograph of BF-8A (of the syrup after Evaporator 7 and before the centrifuge), BF-10A (of the syrup before the heater and entering the centrifuge), BF-11A (of the light stream leaving the centrifuge), BF-12A (oil in the settling tank) and BF-13A (reduced oil syrup stream). MDN 878 at 45; MDN 986 at 17. Partially obscured in the photograph are BF-14A and BF-15A taken from the storage tanks. MDN 878 at 45-46; MDN 986 at 17. Although the material has settled, the compositions have not changed, but it has made the oil more observable. MDN 878 at 46; MDN 932 at 5-6; MDN 1025 at 11; MDN 986 at 18; MDN 1179 at 15.
The data obtained from the October 25, 2011, samples, is typical for when Blue Flint's system was using the steam injection part of the process; but it is not reflective of recovery with a chemical additive. MDN 878 at 46; MDN 932 at 6; MDN 881-23, ¶ 22; MDN 986 at 18.
5. Big River-West Burlington ("BRWB")
BRWB's corn oil extraction system has two centrifuges, the North Tricanter centrifuge and the South Tricanter centrifuge; and two 8-stage evaporation systems. MDN 878 at 17; MDN 986 at 10. The syrup in BRWB's system exits the two evaporation systems after the fourth evaporator and is pumped to one of two head feed tanks. MDN 878 at 18; MDN 968 at 10. From the feed tank, the syrup is pumped to either the North or the South Tricanter centrifuge. Id. The oil stream separated by the two centrifuges is recovered and discharged into a first corn oil receiver tank, and then the corn oil flows to a second corn oil receiver tank, and then into a storage tank; it is sold from the storage tank. Id. The reduced oil syrup that comes out of the North or the South Tricanter centrifuge is discharged into one of two tricanter receiver syrup tanks. Id. From one or the other tricanter receiver syrup tanks, the reduced oil syrup is pumped back to the fifth evaporator in of the two 8-stage evaporator systems where moisture is removed as it flows through the remaining portion of the evaporator system. Id. This evaporated reduced oil thin stillage is then combined with wet distillers grains and wet cake and is further dried to produce dried distillers grains with solubles ("DDGS"). MDN 986 at 11.
The moisture content of the syrup fed to both the North and the South Tricanter centrifuges is between 72% and 75%. MDN 878 at 18; MDN 968 at 10. The pH of the syrup fed to either of the two centrifuges is 3.2 or higher. MDN 878 at 19.
On November 16, 2011, CleanTech performed a Rule 34 inspection of BRWB's facility. MDN 878 at 47; MDN 986 at 18-19. During the inspection, four (A-D) samples were taken at twenty-four (1-24) sample locations. Id. CleanTech retained two samples from each location (A and B); BRWB retained the remaining two (C and D). Id. CleanTech submitted samples WB-1A through WB-24A and BRWB submitted samples WB-1C and WB-24C for analysis to MidWest, where each sample was tested and separate data sheets were generated providing the test data for each sample. MDN 878 at 47-48; MDN 932, at 15; MDN 986 at 18-19; MDN 1179 at 15. Samples marked 20 were taken from the reduced oil syrup leaving the North Tricanter centrifuge; samples marked 21 were taken from the oil stream coming out of the same centrifuge; samples marked 22 were taken from the reduced oil stream coming of the South Tricanter centrifuge; and samples marked 23 were taken from the oil stream coming of that centrifuge. MDN 878 at 48; MDN 986 at 19-20.
The MidWest data for the three oil stream samples exiting the North Tricanter centrifuge, WB-21A, WB-21C and WB-21D, show oil concentrations of 94.14%, 93.18% and 92.79%, respectively. Id. at 48-49; MDN 932 at 15; MDN 986 at 20; MDN 1179 at 15. The three oil stream samples from the South Tricanter centrifuge, WB-23A, WB23C and WB-23D, show oil concentrations of 94%, 96.08% and 95.3%, respectively. MDN 878 at 49; MDN 986 at 20.
During the November 16, 2011, inspection of the BRWB facility, CleanTech took a photograph of samples taken from the North Tricanter centrifuge system, including: WB-51 (of the syrup after Evaporator 4 and before the centrifuge), WB-9A (of the syrup at the centrifuge feed pump), WB-20A (reduced oil syrup leaving the centrifuge), WB-21A (light stream leaving the centrifuge) and WB-24A (oil storage tank). MDN 878 at 49050; MDN 986 at 20-21. At the same plant inspection, CleanTech took a photograph of samples taken from the South Tricanter centrifuge, including: WB-14A (syrup after Evaporator 12 and before the centrifuge); WB-18A (syrup entering the centrifuge feed pump); WB-22A (reduced oil syrup leaving the centrifuge); WB-23A (light stream leaving the centrifuge); and WB-24A (oil storage tank). MDN 878 at 50-51; MDN 986 at 21-22. Although the material has settled, the compositions have not changed, but it has made the oil more observable. Id. at 46; MDN 932 at 5-6; MDN 1025 at 11.
6. Bushmills
As previously referenced, Bushmills adds a surfactant to the thin stillage before it enters the first stage of an eight-stage evaporator system, which increases the recovery of corn oil by 20-30%. MDN 932 at 15. In addition, at the last evaporator, Bushmills introduces another chemical before the thin stillage enters a disk stack centrifuge. Id. ; MDN 932 at 19. The syrup is further fed through a strainer before it enters the centrifuge. MDN 878 at 19; MDN 1025 at 12; MDN 1037-2. The thin stillage fed into the centrifuge generally has a pH in the range of 4 to 4.8 pH. MDN 878 at 19. The oil separated by the centrifuge, which contains water, solids and oil, is recovered and discharged into a corn oil transfer tank and then flows to one of two oil storage tanks; from those tanks, the oil is loaded onto trucks. Id. The reduced oil syrup that comes out of the centrifuge is either put onto wet cake and sold as modified wet cake, MDN 932 at 17; MDN 881-45 at 7; or sometimes it is mixed with the west cake and then sent to a dryer. MDN 932 at 17; MDN 881-45 at 9-10.
On December 7, 2011, CleanTech performed a Rule 34 inspection of Bushmills' facility. MDN 878 at 52. During the inspection, samples were taken at several locations throughout Bushmills' corn oil extraction system. Id. During the inspection, Bushmills ran its corn oil extraction system with and without chemical additives and four samples (A-D) were taken at each sample location (1-14). Id. at 52-53. CleanTech retained two of the samples, BM-1A through BM-14B; and Bushmills retained two of the samples, BM-1C through BM-14D. Id. CleanTech submitted samples BM-1A through BM-14A for analysis to MidWest, where each sample was tested and separate test data sheets were generated providing the test data for each sample. Id. at 53. Bushmills submitted samples BM-1C through BM-14C for analysis to Minnesota Valley Testing Laboratories, Inc. ("MVTL"), where each sample was tested and separate test data sheets were generated providing the test data for each sample. Id.
Samples BM-11A and BM-11C were taken from the reduced oil syrup stream coming out of the centrifuge while the corn oil extraction system was run without the addition of chemicals. Id. at 53. Samples BM-10A and BM-10C were taken from the oil stream coming out of the centrifuge while the corn oil extraction system was run without the addition of chemicals. Id. at 53-54. Samples BM-4A and BM-4C were taken from the reduced oil syrup stream leaving the centrifuge while the corn oil extraction system was run with chemicals added. Id. at 54. Samples BM-3A and BM-3C were taken from the oil stream coming out of the centrifuge while the corn oil extraction system was run with chemicals added. Id.
Test data on the reduced oil syrup samples when the extraction process is run without chemicals, BM-11A and BM-11C, show oil concentrations of 2.65% and 3%, respectively; test data on the reduced oil syrup samples when chemicals were added to the process, BM-4A and BM-4C, show oil concentrations of 1.76% and 2.29%, respectively. Id. at 55. Test data on the oil stream samples when the extraction process is run without chemicals, BM-10A and BM-10C, show oil concentrations of 97.3% and 95.49%, respectively; test data on the oil stream samples when the process is run with chemicals, BM-3A and BM-3C, show oil concentrations of 97.1% and 96.27%, respectively. Id. at 55-56.
During the December 7, 2011, inspection of the Bushmills facility, CleanTech took a photograph of samples BM-9A, BM-3D
(oil stream leaving the centrifuge when chemicals are added), BM-4A (reduced oil syrup leaving the centrifuge when chemicals are added), BM-10A (oil stream leaving the centrifuge without chemicals added), BM-11A (reduced oil syrup leaving the centrifuge without chemicals added), and BM-12A (oil in the corn oil transfer tank).Id. at 56. Although the material has settled, the compositions have not changed, but it has made the oil more observable. Id. at 56; MDN 932 at 5-6; MDN 1025 at 11.
The results of the samples taken during the inspection are typical for Bushmills' corn oil extraction process. MDN 878 at 58.
7. Cardinal
Cardinal operates two Tricanter centrifuges; each is fed syrup from the seventh evaporator of an eight-stage evaporator system. MDN 878 at 20; MDN 986 at 11. The temperature of the syrup exiting Evaporator 7 is approximately 185°F, its moisture content is approximately 68-70% and its pH is approximately 4 to 4.1. MDN 878 at 20; MDN 986 at 11. Cardinal has an in-line "pick heater" that is capable of heating the syrup stream as it leaves Evaporator 7 and before it enters the Tricanter, but it is not always used. MDN 878 at 20. Further, Cardinal adds a demulsifier to the syrup before it enters the centrifuge. Id. ; MDN 932 at 17 & 38. The light stream that exits the centrifuge, which contains some solids, is discharged into an oil receiving tank, where the solids are allowed to settle; the overflow oil is sent to a second oil receiving tank; from there the oil is pumped to a storage tank from which it is sold. MDN 878 at 20. Any settled solids are returned to the syrup stream and fed back through the evaporator system. Id. The reduced oil syrup leaving the Tricanters returns to evaporator 8. Id. at 21.
On October 20, 2011, CleanTech performed a Rule 34 inspection of Cardinal's corn oil extraction process. Id. at 58; MDN 986 at 23. During the plant inspection four samples (A-D) were taken at sixteen samples locations (1-16); the four samples at each sampling location were identified as CE-1A through D, through CE-16A through D. Id. CleanTech submitted samples CE-1A through CE-16A and Cardinal submitted samples CE-1C through CE-16C, for analysis to MidWest, where each sample was tested and separate data sheets were generated that provided the test data for each sample. MDN 878 at 58-59; MDN 986 at 23-24.
The MidWest test data for the samples taken of the oil stream, which is a combination of oil, water and solids, leaving Cardinal's centrifuges show an oil concentration in the range of approximately, 87.53% to 90.26%. Id. at 59-60; MDN 932 at 17; MDN 986 at 24-25; MDN 1179 at 15.
During the October 20, 2011, inspection of the Cardinal facility, CleanTech took a photograph of samples CE-10A (syrup fed to the centrifuge), CE-12A (the reduced oil syrup exiting the centrifuges), CE-13A (oil stream leaving the centrifuge), CE-14A (oil stream leaving the centrifuge), CE-15A (oil in recovery tank) and CE-16A (oil in the corn oil transfer tank). MDN 878 at 60; MDN 986 at 25. Although the material has settled, the compositions have not changed, but it has made the oil more observable. MDN 878 at 60; MDN 932 at 5-6; MDN 1025 at 11; MDN 986 at 26.
The results of the samples taken during the inspection are typical for Cardinal's corn oil extraction process when chemicals are used in the process as set forth above. MDN 878 at 61; MDN 932 at 17; MDN 986 at 26; MDN 1179 at 15.
8. CVEC
In CVEC's corn oil extraction system, once thin stillage is separated from whole stillage and grains, the thin stillage is pumped to a thin stillage tank through a heat exchanger. MDN 878 at 21; MDN 932 at 18. After going through a third effect evaporator and a second effect evaporator, the syrup is then passed through another heat exchanger before it is fed to a retention tank. Id. The temperature of the thin stillage after the second effect evaporator is approximately 120°F to 140°F; after the heat exchanger, the temperature of the thin stillage is approximately 190°F. MDN 878 at 21. As the syrup enters the retention tank, a surfactant is pumped into the tank to reduce interfacial tension between the oil and the water phases of the syrup. Id. ; MDN 932 at 18. After the retention tank (this syrup is at approximately 186°F), the syrup is fed to a settling tank where it resides for 10 to 11 hours to allow the surfactant to work. Id. Surfactant is added again when the syrup if fed to the separator. Id. The syrup then passes through a strainer and then is fed to a disk stack centrifuge; at this point the syrup is still approximately 186°F, has a pH of approximately 3.5, and has a moisture content of approximately 58 to 65%. MDN 878 at 21-22; MDN 932 at 18.
The reduced oil syrup or remaining syrup that comes out of the centrifuge is discharged into a tank and then it is fed into a pre-mixer or paddle mixer with wet cake and syrup that may have by-passed the corn oil extraction centrifuge. Id. This mixture is sent to dyers and dried to make dried distillers grains with solubles ("DDGS"). MDN 878 at 21-22.
On December 7, 2011, CleanTech performed a Rule 34 inspection of CVEC's facility. Id. at 61. During the plant inspection, four samples (A-D) were taken at ten sample locations (1-10); the four samples at each location were identified as CH-1A to D, through CH-10A to D. Id. CleanTech retained two sample sets, CH-1A and B, through CH-10A and B; CVEC retained the remaining two sample sets, CH-1C and D, through CH-10C and Ds. Id.
CleanTech submitted samples CH-1A through CH-10A for analysis to MidWest; CVEC submitted samples CH-1C through CH-10C for analysis to MVTL. Id. at 62. Each lab tested each sample and separate test data sheets were generated for each sample. Id. Samples CH-7A and CH-7C were taken from the syrup stream that enters the centrifuge; samples CH-9A and CH-9C were taken from the reduced oil syrup that leaves the centrifuge; samples CH-8A and CH-8C were taken from the light or oil stream leaving the centrifuge. Id. The test data on the samples taken of the syrup entering the centrifuge, CH-7A and CH-7C, show oil concentrations of 6.92% and 6.17%, respectively. Id. at 63. The test data on the samples taken of the reduced oil syrup leaving the centrifuge, CH-9A and CH-9C, show oil concentrations of 2.67% and 3.15%, respectively. Id. Therefore, approximately 49-61% of the oil in the syrup is removed by the centrifuge. Id. Further, the test data on the samples taken of the oil stream leaving the centrifuge, CH-8A and CH-8C, show oil concentrations of 97.1% and 96.3%, respectively. Id.
During the December 7, 2011, inspection, CleanTech took a photograph of samples CH-7A (syrup fed into centrifuge); CH-8A (oil stream leaving the centrifuge); CH-9A (reduced oil syrup leaving the centrifuge); and CH-10A (the oil leaving the storage tank). Id. Although the material has settled, the compositions have not changed, but it has made the oil more observable. Id. at 60; MDN 932 at 5-6; MDN 1025 at 11.
9. Big River Resources-Galva ("BR-G")
In BR-G's corn oil extraction process, generally, the syrup is pumped to a feed tank from the fourth evaporator in an eight-stage evaporator system and from the feed tank into a two-centrifuge system, a master and a slave. MDN 878 at 60; MDN 932 at 19; MDN 986 at 12. The moisture content of the syrup is generally between 82% and 85% and the pH is 3.2 or higher. MDN 878 at 23; MDN 986 at 12. If the syrup is processed from the fourth evaporator, the reduced oil syrup that leaves the centrifuges is discharged into a syrup tank and from there the syrup is pumped back into evaporator 5 where additional moisture is removed as it flows through the remainder of the evaporator system. MDN 878 at 23; MDN 932 at 19; MDN 986 at 12; MDN 1179 at 15. The resulting material is then added to solids and dried. MDN 878 at 23; MDN 986 at 12.
On November 17, 2011, CleanTech performed a Rule 34 inspection of the BR-G facility. MDN 878 at 65; MDN 986 at 26. During the inspection, four samples (A-D) were taken at fifteen sample locations (1-15); each sample was duly labelled. Id. CleanTech retained samples labeled G1A and B, through G15A and B; BR-G retained samples labeled G1C and D, through G15C and D. Id. CleanTech submitted samples G1A through G15A and BR-G submitted samples G1C through G15c for analysis to MidWest, where each sample was tested and separate test data sheets were generated providing the test data for each sample. MDN 878 at 66; MDN 986 at 26-27.
Samples G11A, G11C and G11C DUP were taken from the reduced oil syrup that comes out of the two-centrifuge system;
samples G12A, G12C and G12C DUP were taken from the oil stream coming out of the slave centrifuge; and samples G13A, G13C and G13C DUP were taken from the oil stream immediately out of the master centrifuge. MDN 878 at 66; MDN 986 at 27. The MidWest data for the samples of the oil coming out of the slave centrifuge (G12A, G12C and G12C DUP), show oil concentrations of 97.4%, 97.44% and 97.07%, respectively. MDN 878 at 67; MDN 986 at 27. The MidWest data for the samples of the oil coming out of the master centrifuge (G13A, G13C and G13C DUP), show oil concentrations of 97.7%, 97.48% and 98.5%, respectively. MDN 878 at 67; MDN 986 at 27-28.
During the November 17, 2011, inspection, CleanTech took a photograph of samples G9A (syrup fed into centrifuge); G11A (reduced oil syrup leaving slave centrifuge); G12A (oil stream leaving the slave centrifuge); G31A (oil stream leaving the master centrifuge); G14A (oil in storage tank, which is a mixture of the oil streams leaving the master and slave centrifuges); and G15A (oil leaving the storage tank). MDN 878 at 67; MDN 986 at 28-29. Although the material has settled, the compositions have not changed, but it has made the oil more observable. Id. at 67-68; MDN 932 at 5-6; MDN 1025 at 11; MDN 986 at 29; MDN 1179 at 15.
10. Heartland
Heartland has two extraction systems, the West Plant and the East Plant. MDN 878 at 23-24. In Heartland's West Plant, sulphuric acid is added to the thin stillage prior to its entrance into the evaporator system. MDN 932 at 20. From the final evaporator in the evaporator system, Evaporator 4, the syrup is fed into a level control tank; and from there it flows through a strainer and then into a disk stack centrifuge. MDN 878 at 23-24. The moisture content of the syrup fed into the centrifuge is approximately between 68% and 76%; and the pH is between approximately 3.65 and 3.68. Id. at 24. The reduced oil syrup that exits the West Plant centrifuge is discharged into a heavy phase tank and then a larger storage tank. Id. at 23. From the storage tank it is mixed with wet cake; the mixture is then sent to a dryer to make dried distillers grains with solubles ("DDGS"). Id. at 23-24.
On December 8, 2011, CleanTech performed a Rule 34 inspection of Heartland's West Plant. Id. at 69. During the inspection, Heartland ran its corn oil extraction system with and without any chemical additives and four samples (A-D) were taken at various sample locations in the West Plant and labeled HL-20A to D, through HL-31A to D. Id. at 69-70. With respect to the West Plant samples, CleanTech retained two sets, A and B; Heartland retained the remaining two samples sets, C and D. Id. CleanTech submitted samples HL-20A through HL-31A for analysis to MidWest; and Heartland submitted samples HL-20C through HL-31C for analysis to MVTL; where each sample was tested and separate data sheets were generated providing the test data for each sample. Id. at 70.
Samples HL-30A and HL-30C were taken from the reduced oil that exited the West Plant centrifuge when the system was run without chemical additives, id. at 70; samples HL-29A and HL-29C were taken from the oil stream that exited the West Plant centrifuge when the system was run without chemical additives, id. at 71; samples HL-21A and HL-21C were taken from the exit of the West Plant centrifuge when the system was run with chemical additives, id. ; and samples HL-20A and HL-20C were taken from the oil stream immediately out of the West Plant centrifuge when the system was run with chemical additives. Id. With respect to results of the tests on samples taken when Heartland's West Plant was run without chemical additive, the data for the reduced oil syrup exiting the centrifuge, HL-30A and HL-30C, show oil concentrations of 2.89% and 3.57%, respectively; the data for the oil stream exiting the centrifuge, HL-29A and HL-29C, show oil concentrations of 93.4% and 88.32%, respectively. Id. at 72. With respect to the results of the tests on samples taken when Heartland's West Plan was run with chemicals, the test results for the samples of reduced oil syrup that exited the centrifuge, HL-21A and HL-21C, show oil concentrations of 3.65% and 4%, respectively; the test results for the samples of oil that exited the centrifuge, HL-20A and HL-20C, show oil concentrations of 96.5% and 96.1%, respectively. Id. at 72-73.
Heartland objected to CleanTech SOMF 274 and Exhibit 109 (Declaration of Photographer During the Heartland Inspection), referenced therein, because the declaration refers to a single authentic photograph, but there are two photographs. MDN 932 at 20; MDN 878 at 73; MDN 883-28. The Court agrees that the declaration does not support admissibility of the photograph because it is written in the singular and there are two photographs. Therefore, the Court SUSTAINS Heartland's objection to CleanTech SOMF 274 and will not consider the information contained in CleanTech SOMF 274. See Fed. R. Civ. P. 26(e) ; S.D. Ind. L.R. 56-1. Heartland also objected to CleanTech SOMF 274 because the cited evidence does not support CleanTech's assertion that the sample labeled HL28A was taken from the syrup fed into the centrifuge or that the sample labeled HL-22A was "representative" of any oil in the run down tank. MDN 932 at 20-21; MDN 878 at 73. The Court agrees that these additional objections should be SUSTAINED .
In the East Plant, Heartland also adds sulphuric acid to the thin stillage prior to its entrance into an evaporator system. MDN 932 at 19. From the final evaporator in this system, Evaporator 6, the syrup is fed through a strainer and into a disk stack centrifuge. MDN 878 at 24. The moisture content of the syrup at this stage is greater than 30% and less than 90% by weight; and the pH of the syrup is between approximately 3.65 and 3.68. Id. at 25. The reduced oil syrup that leaves the East Plant centrifuge is discharged into a heavy phase tank; and then into a syrup storage tank. Id. at 24. From the syrup storage tank, the heavy phase is mixed with wet cake; the mixture is sent to a dryer to make dried distillers grains with solubles ("DDGS").Id.
On December 8, 2011, CleanTech also performed a Rule 34 inspection on Heartland's East Plant. MDN 878 at 75.