P&E Solutions, LLC v. Crescent Power Systems, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
P&E SOLUTIONS, LLC,
Plaintiff/Counterclaim
Defendant,
v. 	Case No. 24-1209-EFM
CRESCENT POWER SYSTEMS, INC.,
Defendant/Counterclaimant,
CRESCENT POWER SYSTEMS, INC.,
Third-Party Plaintiff,
v.
NORTH AMERICAN SPECIALITY
INSURANCE COMPANY,
Third-Party Defendant.
MEMORANDUM AND ORDER
Before the Court is Defendant/Counterclaimant Crescent Power Systems, Inc. (“Crescent
Power”)’s Motion for Leave to File a Second Motion for Summary Judgment (Doc. 94). Prior to
the close of discovery, Crescent Power filed its first summary judgment motion on July 21, 2025,
on Plaintiff/Counterclaim Defendant P&E Solutions, LLC (“P&E”)’s breach of contract claim
against it.1 Approximately five months later, on December 12, 2025, Crescent Power filed the
instant Motion requesting leave to file a second summary judgment motion to raise additional
arguments against the breach of contract claim. P&E opposed this request.
1 Doc. 60.
Case 6:24-cv-01209-EFM Document 120 Filed 03/13/26 Page 1 of 4

-2-
Absent leave to do so, Crescent Power filed its Second Motion for Summary Judgment
(Doc. 108) on February 6, 2026, and an Amended Second Motion for Summary Judgment (Doc.
110) on February 9, 2026. 2 The Court assumes Crescent Power filed its second motion without
leave to ensure it met the February 6, 2026, dispositive motions deadline. Because the second
motion has already been filed, the Court must determine whether to strike it from the record.
“[M]ultiple summary judgment motions filed throughout the course of litigation are
generally disfavored.” 3 “A party should ordinarily submit only one motion for summary judgment
which contains all arguments and evidence in support of a judgment in favor of the moving party,
so as to avoid a piece-meal approach to a multiple claim suit.”4 A successive motion for summary
judgment can be proper, however, particularly if it is “supported by new material.”5 Nonetheless,
the Court has discretion on whether to permit a successive summary judgment motion. 6
In its Motion for Leave, Crescent Power indicated its second summary judgment motion
would contain additional arguments against P&E’s breach of contract claim. Specifically, Crescent
Power stated it would argue “(i) whether time was of the essence, (ii) Crescent Power’s affirmative
2 Crescent Power appears to have erroneously attached a duplicate copy of the Daubert Motion it filed at
Doc. 107 as its Second Motion for Summary Judgment at Doc. 108. Crescent Power remedied the error in its Amended
Second Motion for Summary Judgment at Doc. 110.
3 Hernandez v. Penmark Transp., Inc., 2025 WL 2443448, at *2 (D. Kan. Aug. 15, 2025) (citation omitted);
see also Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1199 (10th Cir. 2006) (“[I]t is not our usual practice
to give litigants the proverbial second bite at the apple.”) .
4 Cole v. Convergys Customer Mgmt., Grp., Inc., 2013 WL 1446556, at *1 (D. Kan. Apr. 9, 2013).
5 Lindsey v. Dayton-Hudson, Corp., 592 F.2d 1118, 1121 (10th Cir. 1979) (citations omitted).
6 See id. (stating that “the court might properly refuse to consider a second motion”); United States ex rel.
Schroeder v. Medtronic, Inc., 2024 WL 3567297, at *1 (D. Kan. Mar. 26, 2024) (invoking the court’s “inherent
authority to control its docket” to strike a successive summary judgment motion from the record).
Case 6:24-cv-01209-EFM Document 120 Filed 03/13/26 Page 2 of 4

-3-
defenses of waiver, modification, and/or estoppel, and (iii) P&E’s inability to prove it is entitled
to any alleged damages against Crescent Power because the equipment Crescent Power provided
was not on the Project’s critical path.” 7 Crescent Power did not explain why it could not raise the
first and second argument in its first summary judgment motion. Crescent Power also indicated
that only the third argument would be based on new material developed in discovery after filing
its first motion. Additionally, Crescent Power failed to explain why it chose to file its first motion
for summary judgment before discovery closed. Had the Court ruled on Crescent Power’s Motion
for Leave prior to Crescent Power filing its second summary judgment motion, the Court would
have limited the second motion to arguments based on new material to prevent a proverbial second
bite at the apple.8
Because Crescent Power has already filed its second motion, the Court has the benefit of
reviewing whether its arguments are supported by new material. The Court’s review reveals that
the facts underlying Crescent Power’s arguments in the second motion are primarily based on the
July 15, 2025, deposition of Justin Swiler which was taken before Crescent Power filed its first
motion.9 Crescent Power’s arguments are also based on facts from a February 6, 2026, affidavit
filed by Joseph Granade, but Mr. Granade is Crescent Power’s own employee.10 The facts in these
documents were already within Crescent Power’s knowledge before filing its first motion. Thus,
arguments based upon such facts should have been included there. Further, the Court’s review
7 Doc. 94 at 3.
8 Pippin, 440 F.3d at 1199.
9 Doc. 110 at 18, 21 (citing Doc. 110-11).
10 Id. at 16 n.2, 18, 21 (citing Doc. 110-2).
Case 6:24-cv-01209-EFM Document 120 Filed 03/13/26 Page 3 of 4

-4-
reveals that Crescent Power’s proposed third argument—the only argument it indicated would be
supported by new material—is absent entirely from its second motion.
Crescent Power’s second summary judgment motion is not based on new material
discovered after filing its first summary judgment motion. It simply seeks to raise additional
arguments that Crescent Power failed to include in its first motion. The Court is not inclined to
permit Crescent Power a second bite at the apple, nor has Crescent Power provided a compelling
reason to do so. Accordingly, the Court denies Crescent Power’s Motion for Leave and strikes its
Second Motion for Summary Judgment from the record. The Court will issue an order addressing
all remaining summary judgment motions in this case at a later date.
IT IS THEREFORE ORDERED that Crescent Power’s Motion for Leave to File a
Second Motion for Summary Judgment (Doc. 94) is DENIED.
IT IS FURTHER ORDERED that Crescent Power’s Second Motion for Summary
Judgment (Doc. 108), Crescent Power’s Amended Second Motion for Summary Judgment (Doc.
110), and P&E’s Response in Opposition to Crescent Power’s Second Motion for Summary
Judgment (Doc. 118) are stricken from the record.
IT IS SO ORDERED.
Dated this 13th day of March, 2026.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
Case 6:24-cv-01209-EFM Document 120 Filed 03/13/26 Page 4 of 4